Emma Swann sets out the key changes to statutory guidance for school hire facilities agreements

 

As schools seek to maximise their commercial offering, they must consider the latest statutory guidance to ensure that effective and compliant hire facilities agreements, that specifically reference and implement safeguarding requirements, are in place. This is an overview of recent updates to both statutory and non-statutory safeguarding guidance that schools should consider when letting school facilities for non-school activities.

What has been updated?

The Department for Education (DfE) has recently updated the following guidance:

• Keeping Children Safe in Education 2023 (KCSIE) – statutory guidance for all schools and colleges.
• ‘Keeping children safe in out-of-school settings’ – non-statutory safeguarding guidance for providers of after-school clubs, community activities and tuition, to keep children safe where individuals or organisations provide these services.

Why hiring school facilities is popular

Schools increasingly seek alternative streams of income to thrive and maximise their assets. Many options are available to generate additional income, one of which is hiring out facilities.

Hiring facilities is traditionally attractive as it makes use of facilities already at the school’s disposal which may be unused for periods of time. For example, a school may choose to hire out its sports hall to a community activities group in the evening, or boarding accommodation during school holidays. We frequently find that in this regard, independent schools can operate as a year-round business. The risk of a future Labour government’s plans to increase VAT on school fees by 20%, also lends additional urgency to plans to increase income to offset this potential threat.

What changed from September last year?

There are a number of key considerations which all schools should keep in mind when putting in place any hire arrangements.

KCSIE is updated annually (usually in September) and last year the updates included provisions which directly affect facilities hire. KCSIE now references ‘Keeping children safe in out-of-school settings’ and confirms that it sets out safeguarding arrangements that schools should expect providers of services such as after-school clubs to have in place.

In relation to safeguarding, new provisions have been inserted in KCSIE which stipulate that when a school receives an allegation relating to a safeguarding incident that happened when an individual or organisation was using the school premises to provide activities for children, the school should follow its own safeguarding policies and procedures, including informing the local authority designated officer (LADO). Hirers are expected to report any incident to the school’s designated safeguarding lead (DSL) within a set period and we would usually recommend this is within 24 hours.

Keeping children safe

Hirers are expected to meet safeguarding requirements as a matter of best practice set out in ‘Keeping children safe in out-of-school settings’. It is important that schools ensure that this guidance is reflected in hire facilities agreements. There are a number of core features of this guidance.

Hirer’s staff

The staff of hirers should undergo basic safeguarding training. The updated guidance takes expectations further, and now recommends that all staff present, or in a position of responsibility when using the school premises, completed basic health and safety training relevant to children.

Furthermore, the hirer should conduct regular performance reviews of staff and volunteers to check their suitability and training requirements. Most employers will already be conducting regular appraisals of staff performance, which should focus on the suitability of staff to participate in activities in out-of-school settings and ensuring the training is adequate.

Risk management

The hirer should conduct a risk assessment appropriate to the proposed activity, reviewing and updating it annually (or earlier if the circumstances or public health advice changes) and put in place active arrangements to monitor whether the controls for managing risks are effective and working as planned. The hirer should also have in place a fire safety and evacuation plan, as well as a plan to respond effectively to an emergency on the school premises.

Policies

Schools should expect hirers to have a number of policies in place before hiring school premises. The key policy, of which schools should request a copy, is the hirer’s child protection and safeguarding policy. Schools should also seek confirmation that the hirer has a complaints procedure in place that includes provision for children, young people and families to raise safeguarding concerns, together with a whistleblowing policy so staff can raise concerns about the maltreatment of any children, as well as a staff behaviour policy.

There are also certain expectations which schools should place on hirers where the activity involves children under five years of age. In these circumstances, schools should expect hirers to provide paediatric first aid training to their staff, unless there’s an exemption from registration with Ofsted. The hirer should also have in place a GDPR-compliant registration form for children in its care, including essential contact information and medical details, where it has five or more members of staff.

What documentation should schools have?

All too often, schools rely on inadequate hire agreements with hirers which offer limited clarity regarding the obligations of the parties and provide little protection to the school.

To ensure safeguarding is in place and to protect the school commercially, a robust hire facilities agreement will ensure consistency and certainty that obligations will be met. The agreement’s terms should cover payment, liability, force majeure and termination, in addition to appropriate safeguarding provisions.

Alongside the hire facilities agreement, schools should put in place a supplemental letter of undertaking, which the hirer must sign when entering into the hire agreement. This requires the hirer to undertake to comply with its safeguarding obligations pursuant to the hire agreement.

The hire agreement may also be supplemented by a safeguarding checklist, solely for use by the school to ensure and document that all safeguarding obligations placed on the school are achieved. For example, this checklist would include ensuring the hirer has in place a child protection and safeguarding policy, and that a copy has been requested and checked by the school to ensure it is appropriate for the purposes of the hire facilities agreement.

Role of the governing body

A school’s governing body has a strategic leadership responsibility for its school’s safeguarding arrangements. Governing bodies must ensure governors receive appropriate safeguarding training so they have the knowledge to provide strategic challenge to test and assure themselves that the safeguarding policies and procedures in place are effective and support a robust whole-school approach to safeguarding. Governing bodies should have safeguarding as a standing item on its agenda and the hiring of facilities should be included as part of a review of processes. These arrangements should be monitored and included as part of any assurance framework.

Review the strategy

In the current political and economic climate, schools must consider carefully ways to review their strategy, and look to increase their income while managing and balancing any risks and ensuring compliance with legal obligations.

Schools that hire out their facilities, or are considering doing so, should review and update their existing hire agreement, or prepare one to ensure that it reflects all of the recent updates made by the DfE in both the statutory and non-statutory guidance.

Emma Swann is a partner and head of academies at law firm Harrison Clark Rickerbys.