Increasing pupil numbers

As part of an academy’s future planning, it may look to increase the number of pupils admitted. Increasing an academy’s pupil numbers can take a number of forms:

• expanding the physical capacity of the academy site
• changing the upper or lower age limit of the academy
• adding a sixth form
• increasing the published admission number (PAN) or admitting above PAN

Regardless of the change which the academy proposes to make, it is important to keep in mind the need to consider firstly, whether the change triggers the need to apply to the ESFA to make a significant change, and secondly, whether increasing pupil numbers will have any other impact.

Significant changes

A significant change is one which may have a significant impact on schooling in the local area, by changing the number or type of school places. Whilst all academies should be familiar with the concept of making a significant change, the detail and various requirements set out in the Department for Education’s (DfE) guidance Making significant changes to an open academy, January 2022 can sometimes be difficult to navigate.

For example, expanding an academy to increase the overall physical capacity as recorded in the Funding Agreement, with the result of providing places for more than 30 additional pupils, requires the significant change process to be followed. Whilst the threshold of more than 30 additional pupils may not be met because of one expansion, smaller changes in consecutive years may total an additional 31 or more pupils, in which case the final increase will trigger the significant change requirements in advance of exceeding the threshold.

Changing the upper or lower age limit of the academy, or adding a sixth form, will also trigger the requirement to follow the significant change process.

Further, in respect of a special academy, the significant change process must be followed if the number of pupil places is to be increased by 20% or more, or 20 pupils or more, whichever is the smaller number.

Amending the published admission number

If an academy is seeking to reduce or remove its PAN or adopt PAN for a new ‘relevant age group’, it must comply with the requirements set out in the Admissions Code, meaning that a full consultation must be conducted prior to making any change.

However, PAN can be increased without the need to consult, provided that the local authority has been informed and the increased PAN is published on the academy’s website. The academy is also expected to discuss its plans with the local authority, and the trustees and appropriate religious authority where the academy is designated as having a religious character.

Alternatively, following determination of PAN, an academy may be able to admit pupils above its PAN. The academy must notify the local authority that it is able to admit above its PAN, and we recommend that you do this in good time to allow the local authority to coordinate effectively in the local area. It may also be that, via in-year admissions, the academy admits pupils above its PAN. Whilst any such admission above PAN do not constitute an increase to the PAN, your academy should only provide additional places if you are rated ‘Good’ or ‘Outstanding’, otherwise a ‘full business case’ significant change application, setting out the reasons for expansion, and how education will be improved, must be submitted.

Planning permission and planning obligations

In addition to ensuring that you discuss your academy’s plans to increase pupil numbers with the relevant parties and follow the significant change process where necessary, if you are considering increasing the number of pupils at your academy, we advise reviewing the planning history of the academy’s site first to check whether there are any limitations placed on pupil numbers. This could be either via a planning condition displayed on a planning permission relating to the academy site, or via a separate legal agreement known as a planning obligation. Both planning permissions and planning obligations create restrictions which run with the land and therefore apply to future owners and operators of a school site.

Once any limits on pupil numbers have been identified, it is important to review pupil numbers over at least the previous 10 years to consider whether there is already a planning breach. Often, we see that academies want to increase pupil numbers but are already in breach of a planning condition or obligation. A breach and subsequent enforcement by a local planning authority can have significant consequences both for the academy and its pupils, as the academy could be forced to reduce pupil numbers. In the case of a breach of planning obligations the local planning authority may enforce many years into the future, whilst in the case of a breach of planning conditions, there is a time limit.

Potential remedies

There are several options potentially open to an academy if they find themselves with a potential or subsisting breach. Some possible remedies might be:

• Application for a certificate of lawfulness – this would only be relevant in the case of a breach of condition but not for a breach of a planning obligation, and only where a breach has occurred continuously for more than 10 years. We regularly help schools to obtain these.
• Application for planning permission to vary the restrictions – this might be a viable option whether the time limit for enforcement has been reached or not but only in cases of a planning condition, not an obligation. This option should be considered if there is not a current breach but there would be if pupil numbers increased in line with an academy’s plan for growth. Once again, we recommend seeking advice first
• Seeking a variation to the planning obligation – you may request to have the obligation varied or discharged but the local planning authority will consider whether doing so would be appropriate, and there will be costs associated with preparation of the necessary deed
• Insurance can be taken out to guard against financial impacts of enforcement action. However, it cannot prevent action being taken and will be limited by the terms of the policy, and if you have insurance and later alert the local planning authority to a breach, the policy will be invalidated

Practical steps

When planning pupil numbers, academies will be aware of the need to collaborate with the local authority, together with the trustees and religious authority where necessary, to take a co-ordinated approach to place planning and delivery. The DfE expects academy trusts to support the local authority by providing additional places where necessary and reducing the number of places offered where there is a surplus.

However, we have increasingly seen academies overlooking the need to make an application for a significant change and update their funding agreement to reflect the change in pupil numbers. We have also seen numerous academies fail to consider any planning conditions or planning obligations which may impact the number of pupils permitted at the academy. We can advise you as to whether your proposed change requires a significant change application, and the process to be followed, as well as assisting you with undertaking a planning history review at an early stage and advising on next steps.

It is important to also consider the steps to be taken if a breach is identified carefully. Taking any positive steps to rectify the breach puts the local planning authority on notice that a breach has occurred and invalidates insurance. The most appropriate option if there is a potential or subsisting breach will depend on the individual circumstances of the case, so we suggest getting in touch so that we can tailor our advice to your needs prior to contacting the local authority. Whether or not there is a breach, it is good practice to keep a clear record of pupil numbers every academic year.

If you require legal support with increasing your academy’s pupil numbers or reviewing potential or historic planning permission or planning obligation breaches, please do not hesitate to contact our education team.