These FAQs are not intended to be a substitute for professional legal advice. AoC recommends that clerks and others obtain further information from the governance helpline or seek legal advice.
If you have a question which is not listed here, please email the governance helpline including 'helpline enquiry' in the subject line, or call the governance helpline on 020 7034 9900. All enquiries will be treated in the strictest confidence and we aim to reply on the same day.
One of the basic principles of governance is openness and transparency, and this is founded upon the Nolan Principles – selflessness, integrity, objectivity, accountability, openness, honesty, and leadership - on which college governance is founded.
Therefore the starting point in governance is to consider that all documents would be made publicly available unless an exemption, as detailed within the Freedom of Information (FoI) Act could be applied. Additionally there could be consideration of exemptions under the Data Protection Act and this should also be taken into account. The public interest test should also be applied against FoI exemptions before a decision is reached.
Redaction of sections of a document is also possible and should be considered before marking an entire document as confidential inappropriately.
At times splitting the report into public and confidential reports can also be considered, alongside non-confidential summaries. However, the principles of openness and transparency should be paramount and clerks should be prepared to challenge on confidentiality to ensure it is used appropriately.
This is a complex legal area; case law is still developing as the Acts are relatively new. Careful consideration needs to be given to applying exemptions, particularly to whole reports, and advice should be sought if there is any doubt in the matter. Guidance can be found on the Information Commissioner's website and legal firms that give advice to the sector will also be able to provide support and guidance on such matters.
A board will wish to keep appraised of the number and type of Freedom of Information requests and that they are being met in a timely fashion. This is most commonly dealt with through an annual report to the board on the number and nature of the requests made during the year. Such a report can help inform any changes in practice that are required.
The circumstances under which a clerk can be asked to withdraw were outlined in the Instrument and Articles of Government April 2012 as follows:
Instrument 14 (10) The Clerk:
(a) Shall withdraw from that part of any meeting of the Corporation, or any of its committees, at which the Clerk’s remuneration, conditions of service, conduct, suspension, dismissal or retirement in the capacity of Clerk are to be considered; and
(b) Where the Clerk is a member of staff at the institution, the Clerk shall withdraw in any case where a member of Corporation is required to withdraw under para (5)
Clauses 11 and 12 state that the Corporation or committee appoints a person from among themselves to act as Clerk during this absence. Clauses 7(1) and (2) state that the Principal may not be appointed as Clerk including as temporary Clerk.
Subject to Clause 14 the Clerk should not be asked to withdraw from a meeting under any other circumstances as the Clerk is the professional advisor to the board and its committees on governance matters and should therefore be present at all meetings.
Unless a college has modified their Instrument and Articles these are the circumstances that would apply. If any changes are proposed legal advice should be sought.
The Statute of Limitations and Data Protection Act apply. Sector-specific guidance is set out on the JISC website.
General rules are that signed minutes of Corporation meetings and committee meetings should be retained indefinitely in hard copy. Paper copies of Corporation [and committee] papers should be retained for six years. Declarations of interest forms should be retained for six years. Papers relating to capital projects or other issues where legal claims may arise should be retained for 12 years. In general paper copies may be destroyed where electronic copies are retained and adequate back up arrangements are in place. Documents containing personal information on Corporation members, staff or students should only be retained for as long as deemed necessary and should be destroyed securely under the Data Protection Act 1998.
My Principal is about to be absent from the college for up to six months due to an illness but is then expected to return. One of the Vice Principals will be acting up in the post for that period. The Vice Principal is not currently a SPH. As clerk, what do I need to do to ensure that they are replacing the Principal on the Governing Body, and acting as the Chief Accounting Officer?
The board has to approve the appointment of any person to the role of acting Principal and Chief Accounting Officer. Every college must have a designated Chief Accounting Officer. Both appointments should be notified to the appropriate funding agency/ies. It is usual for both roles to be carried out by the same person but there may be circumstances when they are separated. As acting Principal they should automatically become a member of the governing body (assuming the Principal is a member). It would be prudent for all of the above to be set out in a resolution to the board for approval. The board will also need to consider any changes to the terms and conditions of employment for the VP for the duration of the appointment to reflect the additional responsibilities.
Under charity law trustees should not profit from the office they hold unless this is authorised by their governing document [Instrument & Articles], statute or Principal Regulator. College governing bodies are subject to charity law and governors are the equivalent of trustees of their organisations. There are therefore restrictions about payment to trustees that need to be considered. Various websites can offer guidance on this, including that of the Charity Commission. Additionally, BIS have published a useful guidance document that outlines the circumstances under which a governor could be remunerated: A review of Further Education and Sixth Form Governance: report on findings and remuneration July 2013, Annex B. Full consideration must be given to the restrictions that are in place and if appropriate where permission needs to be sought. If in any doubt, legal advice should be sought.
Reasonable out of pocket expenses may be reimbursed where these are incurred undertaking legitimate business of the Corporation. It is good practice to have a policy in place for authorisation of such expenses and to require proof of expenditure.
A number of governing bodies have applied to the Charity Commission to have their Chair remunerated and had this request approved. Please see our Guidance on Remuneration for more information.
An Instrument must provide for the authentication of the seal by the college and colleges may make their own rules in this regard. Usually application of the seal will require the signature of two corporation members. Commonly the seal is held by the Clerk who witnesses its use and reports it to the next board meeting. Under general law any document executed as a Deed by the governing body must be done under seal. Only a very few documents would require application of the seal. For example, these generally include contracts for the sale of land or property, leases, or when the Corporation wishes to extend the time under which it could bring a breach of contract claim.
Useful guidance which outlines the process to be followed and any restrictions has been published by BIS: Further Education Corporation names: guidance on changing existing corporation/college name or developing new names [October 2010]. Changes of name will require the approval of the Secretary of State for Business, Innovation and Skills.
Consideration could be given at this early stage to introducing a mediation process in an attempt to resolve the difficulties in the relationship that currently exist before the complaint is made. The advice of your HR Director may be of assistance to you here.
It is essential that a robust complaints procedure is in place and that this procedure is adhered to at each stage. Unless the governor in question is the Chair, the Chair will need to be informed immediately and kept informed at each step of the procedure. The Chair may appoint an investigator to look into the complaint, if that is part of the procedure. The Clerk may be required to support the work of the investigator.
It is essential that the other governors are not given full details of the investigation or complaint as it proceeds, or detailed information on the outcome, to ensure that any potential arising procedures are not impacted in any way. For example, if the complaint is upheld there may be consideration of a disciplinary action or an appeal, and it is essential that other governors can address that in a fair and unbiased manner.
Even the most experienced clerks can find issues of complaint or grievance challenging as they may occur in many forms and result in different pressures on the Clerk. The Clerk plays a significant role in supporting the process and needs to remain impartial throughout. Any clerk or chair should seek legal advice if there is any doubt about the process to follow.
Clerks and chairs could benefit from checking their current procedures against a variety of what if scenarios, to ensure that they are robust enough to cover known potential situations, for example:
- a governor makes a complaint against another governor
- a governor makes a complaint against the principal
- the principal makes a complaint about a governor
- a member of staff makes a complaint about a governor
- a member of the public makes a complaint about a governor
- a member of staff takes out a grievance against the Principal and / or a senior post holder
Any policies and procedures covering such eventualities i.e. complaints and grievance procedures, should be regularly reviewed and updated.
There are no provisions within the Instrument & Articles for the suspension of a governor, only their appointment and removal. There are also no regulations under charity law for the suspension of a trustee. Therefore the applicable rules are those that the individual governing body might have approved. Legal advice should be sought in constructing any such rules on suspension in order to preserve fair and natural justice.
Yes. Only the Chair is precluded from being Chair of the Audit Committee.
This is as stated in the Joint Audit Code of Practice 2015 which says:
"a minimum membership of three, a majority of whom must be governors, but must not include the chair of the corporation or the principal"
Where the Vice Chair is Chair of Audit Committee a board may wish to consider having a Vice Chair of the Audit Committee enabling the Vice Chair of Corporation to be released from their duties of Chair of Audit Committee if they find they are going to be acting as Corporation Chair for a significant period of time.
It is highly likely that the college will have indemnity insurance in place that includes coverage for governors, although this should be checked for assurance.
Corporation is a corporate body created by an Act of Parliament with its own legal status and powers to enter into contracts and employ staff. Governors are members of the statutory corporation and, in principle, cannot be individually liable for the debts of the statutory body. As long as members ensure that Corporation does not exceed its powers in law, and as long as members exercise a duty of skill and care, and act reasonably, honestly and prudently, in good faith in the interests of the Corporation, individual members should not be held personally liable.
Only staff governors can be governors and be employed by the College.
Instrument Clause 8 (3) stated: A person who is a member of staff of the institution may not be or continue as a member except as a staff member or in the capacity of Principal.
There are many similarities between the role of college governor and that of a school governor. In both cases, the Governing Body is responsible for financial monitoring, standards within the institution, the employment of the Principal and compliance with key legislation. The principal difference, however, is the legal status of FE Governing Bodies as independent Corporations under the Further and Higher Education Act 1992 and as exempt charities. This passes many of the statutory responsibilities of the local authority to the Corporation, and provides more freedom and flexibility in governance. Colleges are directly funded by central government and colleges are accountable directly to Government through the Skills Funding Agency and Education Funding Agency.
The amount of time that you will spend on your governor role varies from college to college, the number of Corporation meetings and your membership of any additional committees. The Clerk to the Corporation will be able to advise you of these things and issue you with a calendar of meetings for the year. As a minimum, you will be expected to attend full Corporation meetings. These are generally at least two hours long, but you should also allow time to prepare by reading the paperwork in advance. In addition, you may periodically be sent other reading, and be required to attend training, away days and college events.
Most Corporations set a target for governor attendance: this is important to ensure a quorum and that the decision making process is robust. If there are any factors which might affect your ability to attend meetings, it is important that you discuss them with your Clerk and Chair.
Generally accepted good practice is that notice of meetings, with agendas, must be sent at least seven days before each meeting. Any supporting papers will usually be sent to you at the same time. These days, many Corporations are moving toward e-governance. If you prefer to work electronically then do discuss options with your Clerk to the Corporation. Individual board practice is normally set out within its Standing Orders.
A key resource for governors is the Association of Colleges’ website where you can find governance resources which is specifically designed to support college governors and clerks and contains guidance and briefings. You can sign up to receive weekly AoC briefings on governance. You can also access sector information on the following websites: Department for Business, Innovation and Skills, Department for Education, Skills Funding Agency, Education Funding Agency, Ofsted and Pearson’s Policy Watch. If you are a governor, your Clerk should be able to signpost you to relevant material.
All new governors should receive an induction to give them the basic tools and information to start the role. This should include the key responsibilities of governors including: strategic direction, teaching learning and assessment, the college curriculum, the needs of the communities served by the college, financial and performance monitoring, risk management, safeguarding, equality and diversity, and health and safety. In addition, as a governor you will receive further training and information through briefings, papers, presentations, college visits, and opportunities for external training and conferences. Your Clerk will be the first point of contact both for induction and future training and development in your role.
All governors are required, on appointment, to declare any interests that may potentially conflict, or be perceived as conflicting, with the role as governor and the interests of the college. These are often financial interests, but can also include membership of or connections with other organisations or interest groups. The Register of Interests covers your close relatives, including partners. The acid test is whether the other interest might compromise your independent judgement or be perceived by others as doing so. Once an interest is declared, the Corporation will decide whether you will need to withdraw from consideration of any item where a conflict might occur.
Governors will be asked to declare interests on appointment, and annually, but should declare any changes in-year which impact on their declaration.
The Charity Commission has issued Conflict of Interest Guidance.
Your first step should be to discuss your concerns with the Chair or the Clerk. The Corporation is a collective decision making body, which means that individual governors are bound to abide with a decision, even if they disagree with it, if it has been made reasonably and honestly. If, however, you have very serious concerns about a decision you can make a request to the Chair to put the item back on the agenda at the next meeting.
It is a statutory requirement for a Corporation to have at least one staff and one student governor, and Corporations can choose to have more. Unless a Corporation modifies its Instrument and Articles to provide otherwise, these categories of governor will be nominated and elected by other staff and students respectively. Both categories of governor give students and staff a voice on the board and enable governors to hear first-hand from key college stakeholders who are not the Principal or members of the senior management team. It is important to note, however, that no governor is permitted to be bound by a mandate, or lobby on behalf of any individual or group and must, at all times, act in the best interests of the college. There are, therefore, limited circumstances under which staff and student governors are automatically required to withdraw from meetings. These are normally laid out within the Instrument and Articles and/or Standing Orders. Staff and student governors are to be considered as equal to any other governor and potential conflicts of interest are to be considered and managed by the Corporation on a case by case basis. These usefully describe the tensions in the roles and are a valuable resource for induction.
At incorporation no certificate was issued. However all colleges recognized by BIS are listed at the back of the Instrument & Articles and inclusion on this list is proof of incorporation.
Following an annual survey AoC publishes a report on Remuneration of management Staff and Senior Post Holders. This covers key posts including Principal and Clerk benchmarked by size of college and region. This can be helpful to governors in giving an indication of salary levels but users need to bear in mind it is a retrospective survey, and it cannot reflect the diversity of practice, e.g. the different clerking models in the sector and the support allocated, and the different senior management structures.
There is no blanket requirement for governors to undergo Disclosure and Barring Service (DBS) checks. The April 2014 Act ‘Keeping children safe’ states that checks are only required where the person has "significant unsupervised access to young people & vulnerable adults." It is therefore for individual colleges and corporations to carry out a risk assessment and decide whether their governors should undergo DBS checks. This can depend on the number of vulnerable students and students under 18, and on whether governors are perceived to have significant unsupervised access. Rather than undertaking enhanced DBS check with barred list, colleges may request an enhanced DBS check without a barred check as part of their appointment process. Further information can be found at: DfE Keeping children Safe in Education: Statutory Guidance July 2015.
Further Education colleges are required in the Skills Funding Agency Financial Memorandum Part 1 to inform the Chief Executive [of the SFA] in writing of the vacating or filling of the positions of Chair of the governing body, Principal and Clerk. It is usual for this responsibility to rest with the Clerk and vital that any new clerk is made aware of this.