Local authorities that have applied for Targeted Basic Need (TBN) Programme funding to establish new schools should familiarise themselves with the timetable set out in the annex to the guidance. In the event that your TBN new school funding application is approved you will be expected to adhere to this timetable.

About this departmental advice

1. This advice is non-statutory. It is part of the department’s guidance to local authorities (LAs) on the establishment of new schools. It sets out for LAs and new school proposers the department’s expectations of how the academy/free school presumption process should operate in practice and the characteristics and qualities that new school proposers must demonstrate. This advice applies to all new schools established under the academy/free school presumption, including those that are proposed to be funded from the Targeted Basic Need Programme.

2. The Education Act 2011 changed the arrangements for establishing new schools and introduced section 6A (the academy/free school presumption) to the Education and Inspections Act 2006. Where a LA thinks there is a need for a new school in its area it must seek proposals to establish an academy/free school. Section 6A came into effect:

  • on 1 February 2012 for new schools other than pupil referral units
  • on 1 September 2012 for new pupil referral units

Effective date

3. This advice applies from 16 May 2013. The requirements set out in this advice supersede those of the previous version. This advice applies to any proposed new schools where LAs seek academy/free school proposals on or after the date of its publication, and all new schools for which LAs have applied for funding from the Targeted Basic Need Programme.

What legislation does this advice relate to?

4. The advice relates to the following legislation:

  • The Education Act 2011 (EA 2011)
  • The Education and Inspections Act 2006 (EIA 2006)
  • The Academies Act 2010 (AA 2010)

Who is this advice for?

 5. This advice is for:

  • local authorities (LAs)
  • new school proposers 

Key points

  • the presumption arrangements require LAs to seek proposals to establish an academy/free school where they have identified the need for a new school in their area. The LA is responsible for providing the site for the new school and meeting all associated capital and pre-/post-opening costs
  • all new academy/free school proposals require the Secretary of State’s approval. It is the Secretary of State who will enter into a funding agreement with the proposer
  • LAs must notify the Secretary of State of their plans to seek proposals for a new school as soon as the need for a new school has been agree
  • once formal proposals are received, the Secretary of State must be provided with details of all proposers. The Secretary of State will then notify the LA if he has any concerns about a proposer’s capability or capacity to deliver the proposal and particularly where he is minded not to enter into a funding agreement with a particular proposer
  • the LA should assess all proposals received (see advice in paragraphs 23-25). The outcome of the LA’s assessment should be sent to the Secretary of State. In deciding the proposer with whom he would be prepared to enter into a funding agreement, the Secretary of State will consider the LA assessment very carefully. The preference indicated by the LA will be a key factor in that consideration. However, he will reserve the right to put in place a proposer of his own choice, particularly where there is further evidence available to him about the suitability of a proposer – or the availability of a better proposer. The intention is to ensure that the school is always established by the best proposer possible