The Importance of Good Property Services
The majority of school land and buildings are in the trusteeship of the Diocese. Schools use these facilities for the educational purposes of the Trust and are responsible for their maintenance. Most of the public funding available for this purpose is devolved to schools. Many LAs have reduced the level of their direct services to schools for property maintenance. Companies in the private sector are now targeting schools as potential clients for a range of property services such as ‘facilities management’. Joint public and private finance initiatives (PFI schemes) include the management of facilities by the PFI provider. The DfES would now expect that a major investment such as a new school would be protected by a facilities management plan.
Schools need to ensure that they have adequate provision, especially for support in emergencies. The LA may assist the school with emergency measures to allow the school to function. It may not extend this help to managing the restoration of basic services and school facilities. Many governing bodies have established links with companies which ensure adequate care and maintenance of the school buildings, management of emergencies and help with the preparation of plans for improvements.
Each company offers a different package of services. Schools need to check carefully whether their own needs are met. The Diocese does not provide a property management service but is able to advise on possible providers. Helplines and emergency intervention are desirable elements. Schemes based on annual contributions may appeal but some companies also expect an hourly rate. The attraction of an annual fee which acts as a form of insurance for specified risks may depend for their value on the current state of the school’s facilities. A comprehensive asset management plan may be a useful part of the package for some schools but a clause tying in the school to using the provider for future project management will be seen as restrictive by some schools.
Diocesan Recommended Providers
The Diocese has always maintained a list of recommended providers of professional services, such as architects and surveyors. The purpose was to ensure that providers had sufficient resources and good experience of the DfES system of funding for VA school projects. If the Diocese were being asked to administer the school building project, only providers on the list could be engaged by the school. As the system has become simplified, more providers have sought work with schools. The Diocese has begun to carry out evaluations at the completion of projects. This will enable all schools to check with the Diocese on the record of each provider. Comments on the effectiveness of providers should be sent to the Director of Finance at Bishop’s House.
Asset Management
Both LAs and schools must have up-to-date asset management plans in order to access DfES building funds (see next section). The priorities in the LA plan should reflect the overall needs of its schools as documented in school plans. Schools should seek to ensure that their own priorities are reflected in the LA’s asset management plan. They should work through the LA’s asset management planning group, on which schools and the Diocese are represented.
The DfES has produced three detailed guidance booklets on school asset management planning. Each plan should clearly identify the sufficiency, suitability and condition of the premises and show how resources will be used over a period to provide what is needed to maintain and raise pupils’ achievement.
Accessibility Strategies
From April 2003, every school has a statutory duty to produce an accessibility plan. In collaboration with the LA, the governors must take effective steps to increase accessibility for disabled pupils. Each LA will develop its own approach and produce an accessibility strategy document. Diocesan strategies should also be taken account of. A key aspect of accessibility is improving the physical environment of schools. An accessibility audit of the premises should be completed. Some LAs are undertaking professional audits of all schools, (costs of the audits met centrally).
Grant aid (90%) is available for approved accessibility building projects through the annual LCVAP programme. When governors have identified their school’s physical accessibility needs, they should be prioritised within their Asset Management Plan (AMP). If necessary, a bid for LCVAP funding should be made in the usual way via the diocesan Form DSC11. As with other LCVAP funds, grant is limited and allocated according to priority need. A provisional allocation is made via the LCVAP liaison group (LA and Dioceses), early in the spring. The school’s professional advisor then formally applies for the grant to the DfES, following the Blue Book procedures.
Health and Safety
The governing body is responsible for regular inspection, and assessment of risks, and maintenance of records.
Statutory testing and inspection requirements for school premises must be met, as these are part of ensuring safe operation. The requirements include tests of fire alarms, fixed fire equipment, portable fire extinguishers, emergency lighting, portable appliances, fixed electrical installations, gas appliances, boilers, water systems, swimming pools, lifts, lightning conductors, playground fixed equipment, PE equipment, safety glazing, asbestos based materials, construction work, exhaust ventilation from kitchens, fume cupboards, toilets, etc., and pressure systems.
Governors as employers may incur ‘vicarious liability’ for loss or injury even in cases involving people who are not their employees, and for activities of their employees, in some cases even off school premises and out of hours. (Croner Headteacher Briefing Issue No 240, Dec 2002)
Emergencies
In emergencies which significantly disrupt the education of children, (fire, flood, etc), the LA should be informed so that measures can be taken to restore the learning environment. The Schools Service should also be informed, particularly if there is injury or distress to staff, children or parents, or if the emergency is likely to bring press enquiries. If there is injury or damage to property, the Diocesan insurers must be informed through the Finance Office, so that assessments can be made and contractors engaged. If damage is thought to be malicious, local police must be informed.
Insurance of Premises
The DfES is currently redrawing its guidance on the premises related liabilities of VA governors, following the change in the nature of these liabilities in April 2002. Questions on insurance should be addressed to the Financial Secretary.
The current position of the Diocese is laid out in a letter from the Financial Secretary to schools on 21st November 2002. The insurance arrangements reflect the respective responsibilities of the governors and LA for repair work. The LA is now responsible only for a minor element of property repairs, namely IT classroom equipment and school playing field buildings. The LA has 100% liability for these items. The governors have 10% liability for all of the buildings, all external structures, all fixtures and fittings, and all contents (except IT). The governors also have 100% liability for chapels, ‘mothballed’ classrooms and nursery schools. The Diocesan insurance covers the governors’ repair liabilities net of DfES grant.
‘So, for example, if a classroom were destroyed, the LA’s insurance pays for new IT equipment, the DfES pays 90% grant on rebuilding and provision of new fixtures, fittings and contents, and the diocesan insurance covers the governors’ 10% balance.’
‘A key point to note is that the provision of insurance for diocesan risks is the responsibility of the Diocese, not the LA; however, the responsibility for payment of the premium is with the LA, not the Diocese. The diocesan premium can therefore be paid out of the delegated school budget under the repairs and maintenance section. However, it may be paid out of the governors’ fund.’ Virtually all non-premises insurance remains with the LA. Acquisition and Disposals
All school land and buildings are vested in the Diocesan trust. The Trustees make the ultimate decision whether to buy or sell land. In all instances, the Finance Office must be involved from the earliest stages.
The disposal of land requires a surveyor's report to the Trustees as set out in the Charities Act 1993 Section 36 and its Qualified Surveyors Report Regulations 1992. Briefly, these require that Trustees before entering into an agreement for the disposal shall:
- obtain a written report on the proposed disposition from a Qualified Surveyor (as defined in the Act) acting exclusively for the Charity;
- advertise the proposed disposition unless in the report the qualified surveyor has advised it would not be in the best interests of the charity to advertise and decide that they are satisfied that the terms on which the disposition is proposed are the best that can be reasonably obtained for the charity.
Sales cannot be made to a person connected to the Diocese. This includes a trustee, a person who is a donor of any land, a relative of a trustee or donor, or an officer, agent or employee of the Diocese. Spouses of any such persons are also excluded. The list is, however, not complete and the Diocese's solicitor should be consulted if there is any doubt in this respect.
Generally, redundant school land is disposed of with the benefit of a planning consent for development. This gives the purchaser a degree of comfort in what the land may be used for. Land is sold to the highest bidder to obtain the best consideration in monetary terms. In a sale, the planning application for development will usually require the services of an architect and a valuation surveyor or a planning consultant to secure the maximum potential from the site. The fees of these and other professionals such as solicitors must be allowed for, regardless of whether the sale goes ahead. Occasionally, if the planning application is rejected, an appeal is made and this entails further professional costs.
Acquiring property and land is again the Diocesan Trustees' decision. The Trustees may require a valuation surveyor's report if deemed appropriate. A building surveyor's report on the physical condition of any buildings is usually required.
All professionals, in particular the valuation surveyor, solicitors, and architects, if appropriate, will be Diocesan appointments. This ensures a consistency in provision of advice. Instructions to these professionals are always through the Finance Office. Obviously, the school governors will have a considerable involvement in such buying or selling of land. Business leases, licences, easements, wayleaves, etc.
A lease is a disposition of property giving exclusive usage to a tenant. A licence allows a licensee to use property on a regular basis but without exclusive rights to any part. There are other forms of legal rights or control over Diocesan property, such as, easements, wayleaves, rights of way, drainage rights, listed building orders, conservation area allocation/status, preservation orders, restrictive covenants, planning agreements, etc. These matters affect the use of church property and in all instances the Diocesan Trustees have the ultimate decision whether to grant or accept them.
Leases/licences longer than seven years require a report by a qualified surveyor in the same way as for land sales above. The rent must be the best obtainable and the property should be advertised as recommended by the surveyor. The tenant must not be connected to the Diocese, in the same way as for land sales above. Leases to telecomm companies for mobile phone aerials have proved contentious with neighbours. When approached by a telecom company, the school governors should first contact the Finance Office for advice.
Short leases/licences for less than seven years do not necessarily require a report by qualified surveyors but from a ‘competent’ person, that is someone with knowledge of the rental market, such as estate or lettings agents, or bank managers. The rent must be the best obtainable and the tenant must not be a connected person.
In all instances, it is a Diocesan requirement that the Diocesan solicitor draws up the requisite legal document. Leases and licences are specialist documents and the essential data required by the solicitor is set out in guidance available from the Finance Office. Leases are always excluded from the Landlord and Tenant Act 1954 thus removing a tenants statutory right to renew and allowing the Diocese to regain control at the end of the lease. The school governors should first contact the Finance Office before embarking on buying or selling, or agreeing leases or licences of Diocesan property. The Diocese will ensure that the school governors are fully involved in decisions. Only the Diocesan Trustees can sign the legal documents.
Letting of Land or Fields
Great care must be taken in allowing animals in particular to use school grounds or fields. An agricultural tenancy may be inadvertently created with severe limitation placed on the Diocese as landlord. The Finance Office should always be consulted first.
Assured Shorthold Tenancy for Residential Tenancies
Assured shorthold tenancy can only be used for the residential occupation of Diocesan properties. It is a disposition of land and the Trustees have to comply with the requirements of the Charities Act 1993. When a tenant is found, the Trustees have to receive a report from a ‘competent’ person or a chartered valuation surveyor on the proposed tenancy. A ‘competent’ person is someone with knowledge of the rental market such as an estate agent, letting agent or bank manager. The rent must be the best obtainable. Then the Diocesan solicitor will draw up the legal documents. The tenancy agreement must be signed by the tenant(s) before occupying the property. Tenants must not be allowed into the property before signing the documents.
The Diocesan solicitor will draw up a tenancy agreement based on the information supplied by the school governors on a pro forma available from the Finance Office. We recommend using the minimum tenancy period of six months, and then to allow the tenancy to run on beyond that on a month by month basis as a ‘periodic’ tenancy. This has the advantage that the tenancy can be drawn to an end by the landlord giving two months' notice of termination. The earliest that notice may be given is at four months' in order to give the minimum six month period. The tenant can give one month's notice.
Although a tenancy is allowed to run on, rent should be reviewed annually on the anniversary date. If an increase is required, the Finance Office can issue a standard letter to the tenant(s) giving the new details.
Where the tenant refuses to agree an increase in rent, then the Finance Office can bring the tenancy to an end with the appropriate notice period.
The school governors should contact the Finance Office at least four weeks before tenants are due to move in to allow time to complete all the necessary documents and distribute them to the appropriate parties.
The Diocese usually recommends the use of a letting agent for residential lettings. The agent acts as intermediary between the school governors and tenant and this helps reduce any personal involvement or difficulties with the tenant. However, the agents must use the tenancy agreement drawn up by the Diocesan solicitors. Also the letting agent should not terminate the agreement at the end of six months. Some agents regrettably do this automatically. They must not.
It is a legal requirement that where houses or flats are let all electrical and gas appliances belonging to the landlord are subject to annual safety checks by qualified contractors.
Service Occupancy Agreements for Employees
Some employment positions require an employee to live in Diocesan accommodation for the better performance of his/her duties. This could apply to caretakers or pastoral assistants for example. The Employment Contract must be accompanied by a Service Occupancy Agreement (SOA) regulating the use of the accommodation. The employee must sign the SOA before moving in. The employee will occupy the accommodation free of charge. Our legal advice indicates that charging a rent could create a tenancy which will be difficult to rescind even if the employee leaves his/her job. The SOA is linked to the employment, so if the employee leaves or is dismissed, s/he has to quit the accommodation at the same time. The proposal to provide accommodation should be discussed with the Finance Office before any action is taken. The Finance Office can arrange drawing up the SOA.
Hiring of School Premises
Regular lets, say one day a week for an aerobic class, or every day for a nursery school, should be regulated by a licence. The school premises Hiring Agreement is designed for one-off lets, for example, for parties or for a one month language school. Surveyors’ reports under the Charities Act 1993 are not required. The Chairman of Governors may sign the agreement with the hirer.
Hiring out the school premises can generate some income as a contribution towards its upkeep. The management of lettings needs careful consideration. In particular, the cleaning of the floors, toilet facilities and kitchen needs planning between lets. It is better to have one person responsible for the hall management.
The hirer must hold public indemnity insurance and proof should be given to the school governors. Hirers may hold private parties but must not hold public entertainments.
A standard school premises Hiring Agreement is available from the Finance Office. A separate information sheet should be drawn up giving the hire rates for the different parts of the building. The best way to assess rates is by comparing them with other facilities in the vicinity.
Property Deeds
The legal deeds of all school properties are held by the Diocesan solicitors. Any queries about ownership, boundaries, or any other legal matters should be directed to the Diocesan Financial Secretary in the first instance.
