Reconstituting the governing body: maintained schools

When should we consider reconstituting?

A representative of the Department for Education (DfE)'s governance unit explained that all governing bodies need to reconstitute if they wish to adjust the number of governors they have (for example, if they want to adjust the number of staff governors or co-opted governors).

Contact DfE, GOV.UK – DfE https://www.gov.uk/government/organisations/department-for-education#org-contacts

Paragraph 8 of the DfE's statutory guidance on the constitution of governing bodies says that a governing body should re-evaluate its constitution "if things are not going well" – for example, if the school receives a poor inspection judgement from Ofsted, or following an external review of governance.

It adds that a governing body should also consider reconstitution as a proactive move to ensure it is 'fit for purpose' for the future, including in the context of a conversion to academy status.

The constitution of governing bodies of maintained schools, GOV.UK – DfE, see page 7 (Adobe pdf file) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/459032/The_Constitution_of_Governing_Bodies_of_Maintained_Schools_Stat_Guidance....pdf

Minimum number of governors

All maintained schools

All governing bodies of maintained schools must follow the School Governance (Constitution) (England) Regulations 2012. 

The School Governance (Constitution) (England) Regulations 2012: part 3, legislation.gov.uk http://www.legislation.gov.uk/uksi/2012/1034/part/3/made

The School Governance (Constitution and Federations) (England) (Amendment) Regulations 2014, legislation.gov.uk http://www.legislation.gov.uk/uksi/2014/1257/contents/made

There must be only one staff governor (in addition to the headteacher) and only one LA governor

Regulation 13 says the governing body must have at least seven governors, which must include:

• At least two parent governors
• The headteacher (unless the headteacher resigns the office of governor)
• One staff governor
• One local authority (LA) governor

Page 17 of the guidance on the constitution of maintained schools, linked to above, confirms that there must be only one staff governor (in addition to the headteacher) and only one LA governor. 

In addition, the governing body may appoint as many co-opted governors as it considers necessary. However, the total of co-opted governors who are eligible to be staff governors, taken with the headteacher and the staff governor, must not exceed a third of the membership.

Additional requirements for foundation and voluntary schools

As well as the governors required by regulation 13, foundation, voluntary aided (VA) and voluntary controlled (VC) schools must have partnership or foundation governors. For example, it says that:

• VA schools must have two more foundation governors than all other governors
• VC schools must have at least two foundation governors

The DfE representative confirmed that, when varying its instrument of government, a VA or VC school can reduce the number of foundation governors it has, as long as the number of foundation governors still meets the above requirements.

A further article from The Key covers the size and membership of the governing body in more detail:

Size and membership of the governing body The governing board : Constitution & membership : The constitution of the governing board

Governors' terms of office following reconstitution

Section C.3 of the DfE's statutory guidance on constitution, linked to above, explains that under the 2012 constitution regulations, the term of office for all categories of governor is a fixed period of four years.

However, the following exceptions apply:

• The instrument of government may specify:
• A shorter term of office for a particular category of governor (although it must be at least a year)
• That the term of office for an individual governor within a category of governor may be between one year and four years
• A headteacher or an ex officio foundation governor stops being a governor when the position which entitles them to be a governor comes to an end
• An additional or additional foundation governor appointed under part 4 of the Education and Inspections Act 2006 holds office for such period as the appointer determines (at the time of appointment) up to a maximum of four years
• A substitute governor's term of office may end earlier than four years, dependent on the return or replacement of the original governor 

For more information on additional governors appointed under the Education and Inspections Act 2006, see the following article from The Key:

Intervention in schools causing concern Strategy & improvement : Strategic planning : Intervention & external support

For governors who have transferred from the old to the newly constituted governing body, their term of office depends on whether or not they transfer in the same category as before.

Governors who transfer under their existing category

The DfE representative said that governors who transferred to the newly constituted governing body in the same category as before (for example, as a staff governor) continue to serve out their original term of office.

Governors who are re-appointed to a different category

The representative from the DfE also explained that for governors re-appointed to a different category, a new term of office should start.

For example, if a parent governor becomes a co-opted governor, they begin a new term of office.

Does the chair need to be re-elected?

A governor asked us whether the chair of governors needs to be re-elected after reconstitution, particularly when he or she has been re-appointed to a different category.

We put this question to Jane Edminson, one of our associate education experts.

After any governing body reconstitutes, elections need to be held for the positions of chair and vice-chair

Jane told us that after any governing body reconstitutes, elections need to be held for the positions of chair and vice-chair. She said that these elections always need to be held, regardless of whether the previous chair of governors has been re-appointed to a different category or remained in the same category as before.

Jane explained that when electing a chair after reconstitution, a governing body could decide to keep the same end date for the chair's term of office as previously agreed.

Another article from The Key looks at the election of the chair and vice-chair of governors in more detail:

Electing a chair and vice-chair of governors The governing board : Roles on the governing board : Chair of the governing board

Appointing previous governors as co-opted governors

We asked the DfE's governance unit who would be eligible to vote on appointing a previous governor as a co-opted governor.

The representative said that where a governing body wants to appoint a former parent, staff or LA governor to a co-opted position, only those governors who have transferred to the newly constituted governing body in their existing category are eligible to vote.

The governors who have lost their place must not be involved in the votes on their re-appointment.

We also asked the DfE who should chair the vote to appoint co-opted governors to the new governing body if the chair and vice-chair have changed category. The representative said that in this situation, the governing body should choose another governor to chair the votes to appoint the co-opted governors.

Managing surplus governors

Page 18 of the DfE's statutory guidance on the 2012 regulations explains the rule (regulation 15) about surplus governors.

Following reconstitution, if a school has more governors in a particular category than the instrument of government provides for, the excess of governors must be removed if resignations "are not forthcoming".

The guidance says:

Governing bodies, and chairs of governors in particular, should make every effort to achieve any restructuring or downsizing amicably through sensitive and honest negotiation about which governors are best placed to contribute to effective governance and the success of the school.

This may be an uncomfortable process and should be handled sensitively and with care.

It says that if necessary, the governing body should conduct a fair and transparent process to define the skills it requires, and then conduct a skills audit of existing governors.

Removing foundation governors

The guidance says any surplus in the number of foundation governors must be resolved by the person responsible for appointing this category of governor.

The decision about which governors will continue to hold office should be based on who has the skills needed to contribute to the effective governance and success of the school, and to secure the purposes for which the individual was appointed as a foundation governor.

The DfE representative told us that any foundation governor can be removed by the person responsible for appointing him/her. This includes an ex-officio foundation governor, who can be removed at the request of the person named in the instrument of government as being entitled to make such a request.

Voting to remove other governors

The DfE guidance explains:

Any surplus ... must be resolved by a separate vote of the governing body on each category

Any surplus in any other category of governor must be resolved by a separate vote of the governing body on each category ...

This vote must be specified as an item on the agenda issued seven days in advance of the meeting. Governors are not permitted to vote on their own category. The chair has a casting vote if necessary.

Governors declared surplus do not cease to hold office until votes are cast on all categories in which there is a surplus.

When can the vote be held?

A member asked whether the governing body could vote to remove surplus governors in the same meeting as a vote to reconstitute.

The DfE representative told us that this would not be possible because a governing body cannot remove surplus governors until its new instrument of government has come into effect. The instrument specifies the constitution of the governing body, so there would be no surplus governors until reconstitution has taken place.

An article from The Key looks at the process of drafting a new instrument of government:

Instrument of government: examples and guidance The governing board : Constitution & membership : The constitution of the governing board

Managing vacancies before reconstitution

The DfE representative told us that a governing body is legally obliged to fill any vacant positions as soon as possible.

If the governing body intends to reconstitute soon, it can decide ... to postpone filling any vacancies until after reconstitution

He also explained, however, that if the governing body intends to reconstitute soon, it can decide whether or not it wants to postpone filling any vacancies until after reconstitution.

The representative added that a governing body would be expected to take all reasonable steps to try to fill a vacancy that arose a year in advance of the planned date for reconstitution.

Governing bodies may wish to contact their LAs (and dioceses, if applicable) for further advice on whether it is appropriate to postpone filling vacancies, as this may vary depending on the circumstances of the school.

Is it advisable to fill vacancies before reconstituting?

We asked Jane Edminson whether it is advisable for a governing body to fill any vacancies before it reconstitutes.

Jane said it will depend on the stage of the reconstitution process the governing body has reached. If there is any confusion or uncertainty about the final shape of the governing body, and therefore how many vacancies will or will not need to be filled, the governing body should wait until this has been resolved.

She said she would advise against appointing new governors without being sure of the final structure of the governing body, because the governing body could end up with surplus governors.

She added, however, that if the governing body is still a long way from reconstituting, any vacancies should be filled.