Serious incidents in academies: when and how to report

If a serious incident occurs at a school, it’s vital that it’s reported to the right body as soon as possible. In academies, the board of governors must understand their responsibilities as charity law trustees and act promptly.

They are responsible for deciding whether an incident is serious enough to report and for ensuring the report is submitted promptly (note that these individuals are different from local governors for individual academies). If a report is not made, or is delayed, the governors may be held accountable.

For most charities, the reporting body is the Charity Commission (the “Commission”), which acts as their principal regulator. Academies, however, are in a different position. Under Schedule 3 of the Charities Act 2011, academies are classed as ‘exempt charities’, meaning they aren’t directly regulated by the Commission. Instead, their principal regulator is the Department for Education (DfE).

In practice, this means academies (whether single or multi-academy trusts) should report serious incidents to the Secretary of State for Education via the DfE, rather than to the Commission directly. This arrangement is set out in the Memorandum of Understanding between the Commission and the DfE, under which the DfE acts as a ‘gatekeeper’ – receiving reports from academy trusts and referring matters to the Commission where it considers it appropriate to do so.

The Commission may only open a statutory inquiry into an exempt charity following consultation with, and at the request of, the DfE.

Despite being exempt charities, academies must still comply with both Commission guidance and charity law.

The Academy Trust Handbook

The Academy Trust Handbook (formerly the Academies Financial Handbook) is one of the DfE’s main governance documents for academy trusts. Compliance with the Handbook is a condition of each trust’s funding agreement with the Secretary of State for Education.

The Handbook also confirms that, where there’s a concern, the DfE may refer trusts to the Commission. This reflects the Commission’s interest in addressing non-compliance with legal or regulatory requirements, or misconduct or mismanagement in the administration of any charity.

We have seen this happen in practice, with the DfE stating that it will refer a case to the Commission where there’s continued non-compliance with the Academy Trust Handbook following the issue of a Notice To Improve.

Serious incident reporting: guidance

The DfE doesn’t have detailed guidance on the specific content or format of a serious incident report for academy trusts. In the absence of bespoke guidance, the Commission’s guidance remains the most comprehensive and authoritative framework for academies to refer to when reporting a serious incident to the DfE.

The Commission defines a serious incident as an adverse event (actual or alleged) which results in, or risks, significant:

• Harm to individuals connected with the trust
• Loss of the trust’s funds or assets
• Damage to trust property
• Harm to the trust’s work or reputation.

Whether an incident is ‘significant’ will depend on the particular trust, having regard to its relative size, operations, finances and reputation. As with charitable organisations, academy trustees (that is, the governors) are ultimately responsible for deciding whether an incident meets this threshold and requires reporting.

The Commission provides detailed guidance on reporting serious incidents, including an examples table to help trustees decide what may or may not be a serious incident.

Serious incidents should be reported in a prompt, full and frank manner and should include:

• Details of what happened
• The impact on the trust and its connected people
• Whether other regulators have been informed
• Steps taken to manage the incident
• Measures put in place to prevent a similar incident recurring.

If trustees decide not to report a particular incident, they may later be required to justify that decision. Clear, detailed and factual record-keeping is essential, particularly for borderline incidents where the decision is not to report.

It can be challenging for trustees to assess what amounts to ‘significant’ harm. Reportable incidents can be broadly categorised, without limitation, as follows:

• Incidents that have resulted in, or risk, significant harm to beneficiaries and other people who come into contact with the charity through its work
• Financial crimes such as fraud, theft, cyber crime and money laundering
• Large donations from an unknown or unverifiable source, suspicious financial activity using the charity’s funds or other significant financial loss
• Links to terrorism or extremism, including banned organisations, individuals subject to an asset freeze or kidnapping of staff
• Incidents such as insolvency, forced withdrawal of banking services without an alternative, significant data breaches or losses or incidents that materially affect the charity.

Depending on the nature of the incident, academy trustees may also be required to make disclosures to other regulators, such as a local authority or the police.

Delegating the power to report

The act of reporting a serious incident may be delegated to, for example, a member of the senior leadership team or the designated safeguarding lead. However, ultimate and collective responsibility for reporting rests with the academy trustees, including ensuring reports are accurate and not misleading.

Updating a serious incident report

Once an incident has been reported, trustees can update or provide further information as the situation progresses or circumstances change. The DfE (or the Commission, where appropriate) is likely to ask to be kept informed even after the initial serious incident report has been submitted.

Other considerations

1. Reporting to both the DfE and the Commission

Although the primary obligation is to report serious incidents to the DfE, there’s nothing preventing a trust from also making a voluntary notification to the Charity Commission in line with trustee duties. A belt-and-braces approach may be prudent, particularly where an incident has attracted, or risks attracting, adverse media coverage that could affect the reputation of the academy or wider trust.

It’s almost always preferable for a trust to report a serious incident itself, rather than the DfE or the Commission becoming aware of it through a third party such as the media. Trustees in that position may be asked to explain not only what occurred, but why it wasn’t reported. Early, proactive reporting places the trust in a far stronger position.

2. Engaging professionals

Academy trustees should consider whether to seek legal support from charity and education lawyers with experience of serious incident reporting. This may be appropriate even where trustees decide not to report, to help confirm and document their decision-making.

Where a serious incident occurs, communications are as important as legal compliance. Academy trusts may also wish to instruct PR professionals to help prepare clear, consistent messaging for students, parents, staff, stakeholders and the media.

Taking control of the narrative early can demonstrate that the trust is managing the incident responsibly and helps ensure it remains on the front foot with both the DfE and the Commission.

3. Internal steps

External reporting is only one part of the response. Internally, the senior leadership team should work closely with trustees to develop a clear action plan addressing the incident, including communications with staff, parents and other stakeholders where appropriate.

It’s equally important to ensure lessons are learned. Trusts should review how the incident occurred and what steps can be taken to prevent a recurrence. This may include reviewing and updating policies and procedures, such as safeguarding arrangements. Depending on the nature and severity of the serious incident, an external governance review may also be appropriate to identify any areas of weakness or exposure.