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Academies and Freedom of Information requests

July 16th, 2014 by Rachel Kamm

Robin Hopkins (@hopkinsrobin)  has posted the following on 11KBW’s information law blog (Panopticon), on the question of when academies are subject to the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIR”):

The question of whether information is ‘held’ by a public authority for FOIA or EIR purposes can raise difficulties. This is especially so where the boundaries between public and private service provision are blurred: consider outsourcing, privatisation of services, public/private partnerships, joint ventures, the use of external consultants and so on. Legal separation and practical day-to-day realities can often point in different directions in terms of who holds information on whose behalf.

Geraldine Hackett v IC and United Learning Trust (EA/2012/0265) is a recent First-Tier Tribunal decision which addresses such issues – specifically in the context of academy school provision.

The United Church Schools Foundation Limited delivers schools through two separate trusts: the United Church Schools Trust (which runs 11 private schools) and the United Learning Trust (which runs 20 academies, and receives approximately £110k of its £129k of annual income from public funds).

Para 52A Schedule 1 FOIA brings within the scope of FOIA “the proprietor of an academy” but only in respect of “information held for the purposes of the proprietor’s functions under academy arrangements.”

Geraldine Hackett asked for information about the employment package of ULT’s chief executive (pay, pension contribution, expenses etc) and of the other members of the ULT senior management team.

ULT said it did not hold the information; the information was instead held by UCST (the private school provider). The ICO agreed. So did the First-Tier Tribunal, but this was overturned by the Upper Tribunal on account of aspects of procedural fairness which had gone badly awry at first instance.

On reconsideration by a fresh First-Tier Tribunal, the ICO’s decision was overturned. The Tribunal asked itself the questions which the Upper Tribunal had invited for consideration:

“Was it really the case that ULT had delegated day-to-day running of its charitable activities to a chief executive of whose duties under his contract of employment, ULT was ignorant? Was it permissible to avoid FOIA by the device of a contract of employment made by another body?”

It applied the leading case of University of Newcastle upon Tyne v ICO and BUAV [2011] UKUT 185 (AAC) and concluded that ULT did hold the requested information for FOIA purposes. This meant that “ULT would fulfil its obligations under FOIA by disclosing not the total sums involved but that proportion, calculated in accordance with the agreement, which relates to the academies; in other words excluding that proportion which can be attributed to USCT’s private schools.”

The Tribunal noted that “in 2006 both trusts entered into an agreement with each other to apportion the expenditure on shared services” and observed that “it appeared to us from the oral and written evidence that staff work together seamlessly for all three trusts”.

Those who grapple with held/not held questions in contexts like this will wish to note the key paragraph (19) illuminating the Tribunal’s reasoning:

“We were told at the hearing, and we accept, that the disputed information is held in hard copy in one of the filing cabinets at the United Learning Head Office. Those with access to it work seamlessly, we have found, for all three trusts. They have responsibilities to all three trusts. For these purposes, we are not attracted by artificial theories suggesting that staff hold these documents only on behalf of one or two of the trusts. Looking at actualities, and applying the plain words of the statute, in our judgment the disputed information is held by ULT, even if it is also held by UCST and UCSF. This finding is consistent with the obligations of the ULT accounting officer in respect of senior officers’ payroll arrangements…”

The original post can be viewed here.

 

Enforced Academisation

July 14th, 2014 by James Goudie QC

A judicial review challenge to an enforced academisation has failed in R (Governing Body of the Warren Comphrehensive School) v Secretary of State for Education [2014] EWHC 2252 (Admin).  The case concerns the Warren Comprehensive School (“the Warren”), a mainstream school maintained by the London Borough of Barking and Dagenham.  The Warren had been placed into “special measures” by OFSTED in February 2013.  On 6 January 2014 the SoS made two decisions with respect to the Warren.  One was to make an Academy Order, pursuant to the Academies Act 2010.  The other was to appoint an Interim Executive Board (“IEB”), pursuant to the Education and Inspections Act 2006.  The following day the Claimants issued an application for permission to seek judicial review in respect of both decisions.  On 12 May 2014, following a consultation on academy conversion, the SoS decided that the Warren should (with effect from 1 September 2014) become an Academy, sponsored by Loxford Academy Trust.  The Claimants also sought to challenge that decision.

The eventual grounds of challenge were in two parts.  First, it was alleged that both the decision to convert the Warren to an Academy and the decision to appoint an IEB were flawed as being based on a material error of fact, namely that the statistical evidence shows that sponsored Academies are more likely to deliver attainment and improved progress in Schools in need of intervention than maintained Schools.  The second was that the decision to convert the Warren into an Academy was flawed as failing to have regard to the level of disruption that would be caused and being irrational.

The case based on material error of fact was not made out on the evidence: paragraph 74 of the Judgment of Supperstone J.

The case based on the allegation of failure by the SoS to have regard to possible disruption to staff and pupils if the Warren converted to Academy status also failed on the evidence: paragraph 78.  At paragraph 80 Supperstone J observed that the SoS appreciated that it was likely that there would be some disruption during the process of Academy conversion, but considered that Loxford would appropriately manage the process in order to mitigate any such disruption.

Supperstone J further ruled, at para 84, that the SoS was entitled to conclude that the persistent under-performance of the Warren meant that steps should be taken without further delay to bring about a long-term sustainable improvement.

11KBW’s Jonathan Swift QC and Joanne Clement appeared for the Secretary of State.

James Goudie QC

The Special Educational Needs (Personal Budgets) Regulations 2014

June 28th, 2014 by Rachel Kamm

These regulations will come into force on 1 September 2014. They basically extend  the current pilot scheme for personal budgets to all local authorities and apply it to the new Education Health and Care Plans regime. I posted back in 2012 about the pilot scheme and these  new regulations make very few changes to the substance of that scheme.

The DfE’s guidance includes the following about personal budgets:

“Services which can be offered as a personal budget:

‘As part of their local offer, local authorities should set out a local policy for personal budgets, developed with parents and young people, which describes the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and includes clear and simple statements of eligibility criteria and the decision making processes that underpin them.

To achieve this, local authorities should work with their partners to:

      • identify and agree the funding streams and services for inclusion from September 2014 and develop the necessary infrastructure to support their inclusion;
      • identify and establish the information advice and support necessary at an area and individual level to help families consider options for, and to take up and manage, personal budgets;
      • develop a pathway for personal budgets within the assessment and planning process and the workforce and cultural changes necessary for a person centred approach; 
      • identify how the new joint commissioning strategies will support greater choice and control beyond September 2014, with a view to new enhanced offers from September 2015 through to September 2017 (and beyond) as the market is developed and funding streams freed up from existing contractual arrangements; and
      • maintain the core principles in the SEND Code of Practice at all times, ensuring children, young people and families are involved in the decision making processes at both an individual and strategic level.”

There are examples of case studies and lessons learnt from the pilot scheme here.

[I posted this yesterday and it started a discussion on Twitter (@Kamm11KBW) about how the current pilot scheme is working. As I commented in 2012, " Whilst it is only a pilot scheme, it applies to a fairly large number of local authorities and those pilot authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments". The discussion on Twitter suggested that some parents' experience is that some local authorities have been slow to recognise that the pilot scheme gives rights to individuals, and also that some parents were not clear about the content of those rights or about how personal budgets fit into the wider SEN system.  So, here is a very brief summary of how it should be working now and how it should work in future with EHC Plans:

The LA must provide the special educational provision in the SEN statement / EHC Plan. One way in which it can do that is by providing a sufficient personal budget to the parent (or other appropriate person, under the regulations) for them to secure any of the goods and services listed in section 532A(2) of the Education Act 1996. The LA only has a power to make a direct payment if various conditions are met, as set out in the regulations. The parent / young person does not have an absolute right to a personal budget, but they do have rights (i) to receive information and advice, (ii) to have any request for a personal budget considered, (iii) to be given reasons if they are not granted a personal budget, and (iv) to a review of any refusal. A direct payment can only be used for goods/services in a school or college  if the head teacher / principal  consents. If the LA grants a personal budget, it must monitor the use of the budget, which can only be used to secure the agreed provision. There are some changes to the detail of this scheme, with the introduction of EHC Plans covering SEN from early years to age 25, but the general idea remains the same.]

Rachel Kamm, 11KBW, @Kamm11KBW

New rules for school lunches – would yours comply?

June 23rd, 2014 by Paul Greatorex

The Requirements for School Food Regulations 2014 (SI 1603/2014) have been promulgated, setting out the rules for school lunches and other food provided in school which will come into force on 1 January 2015.  They apply to:

  • maintained schools
  • pupil referral units
  • academies, except for those those who entered into funding agreements between September 2010 and June 2014 (when apparently no relevant clause was included in the funding agreement)
  • maintained nurseries and nursery units within a primary school
  • food provided by a local authority or governing body to pupils on school trips of 7 days or longer

Requirements for school lunches include:

  • meat or poultry at least 3 times per week, but processed meat no more than once (primary schools) or twice (secondary schools) per week and no economy burgers
  • oily fish at least once every 3 weeks
  • one portion each of vegetables, fruit and dairy (cheese, yoghurt, fromage frais and custard) per day
  • fried food and food including pastry no more than twice a week
  • a fruit-based dessert (at least 50% fruit) at least 2 times per week
  • no salt to be available to add to food
  • semi-skimmed and lactose reduced milk to be available at some point during school day

And when reaching for your afternoon snack, note the rules for food provided otherwise than as part of a school lunch (i.e. tuck shops etc.):

  • fruit and/or vegetables must be available
  • no sweets, cakes, biscuits, savoury crackers or breadsticks
  • no crisps or other pre-packaged snacks apart from nuts, seeds, vegetables and fruit with no added salt, sugar or fat
  • no sweet fizzy drinks

The Department for Education has also published advice for governing bodies on the new rules which is available, together with a copy of the regulations, here.

Bon appetit!

Paul Greatorex

 

Brown v Board of Education No.(2)? Maybe.

June 15th, 2014 by Thomas Ogg

On 10 June 2014, Judge Treu of the Superior Court of California struck down three laws relating to teacher retention as unconstitutional.  Such is the significance of the case, he began his judgment with a quotation from Brown v Board of Education (1954) 347 US 483.  The case of the plaintiffs (as there they are still called) was summarised by Judge Treu as follows:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.  Plaintiffs’ equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state“.

The laws that were struck down were:

  • A “Permanent Employment Statute” whereby tenure is granted to teachers after approximately two years;
  • A set of “Dismissal Statutes” which are apparently “too time consuming and too expensive” for officials to contemplate using to dismiss ineffective teachers.  The evidence before the court was that dismissing a teacher costs $50,000 to $450,000 and takes between two and ten years.
  • A “Last-In-First-Out Statute”, which requires that when redundancies are to be made, the most junior staff must be dismissed before more senior staff.

The case, Vergara v State of California, was brought in the name of nine California public school students (i.e. state school students), and was funded by telecoms millionaire David Welch by means of an advocacy group called Students Matter.

The case is interesting because (as the Judge notes), it is ostensibly not about educational equality, but about the quality of education.  The evidence relating to the impact of those teachers on their students, Judge Treu held, “is compelling.  Indeed, it shocks the conscience“.  The evidence he refers to states that the 1-3% of teachers in California who are “grossly ineffective” cost the students in their respective classrooms $1.4 million in lifetime earnings per teacher (when lost earnings of all students in that class are summed).   The Economist claims that teacher quality is more important than class size, income level, or access to high-tech equipment in influencing educational outcomes.

Whatever you think of the politics of the case, it is illustration of the global trend of activist groups turning to the courts to achieve their aims.  In the UK, most of the big education cases have been reactions to changes to policy – see for example the Building Schools for the Future and English GCSE judicial reviews, and the mooted JR of the new rules on taking holidays during school terms.  The Vergara case, however, is different because it is a direct challenge to an established orthodoxy.  An equivalent legal challenge in the UK might, for example, be to the grammar school system (though I doubt the evidence in such a case would be nearly as striking as in Vergana).

Vergana is also interesting because it reflects a longer-term focus in academia on how ‘teacher quality’ is important to educational outcomes: see the world leading research produced by the Centre for Educational Policy Analysis at Stanford University.  As UK judicial reviews have tended to be reactive in nature, the evidence relating to the issue of concern has usually been scanty.  See for example the tuition fees judicial review (in which, as with the above JRs, 11KBW members were prominent).  There, Elias LJ noted: “The debate before us has consisted of each side marshalling arguments directed largely to predicting what the cumulative outcome of the various measures will be… In my judgment, at this stage it is all too uncertain and it would be wrong for the court to find disparate impact where that is neither an obvious nor even a strong inference from the facts.

Putting aside the other grounds on which Elias LJ found that claim to be unfounded, perhaps what Vergana illustrates is the value of pursuing a case once the academics have done their research, and not before (putting aside problems of delay, which are often surmountable).  The employment tribunal fees judicial review, in the which the court in effect told the claimants to come back when (or if) there is enough evidence to determine the substantive issue, is perhaps another illustration of this idea.  The extent to which concrete evidence, rather than speculative evidence, might affect the merits of a case heard by an English court on a matter of social policy would be interesting to see.

The ruling made in Vergana is stayed pending appeal, and has caused a considerable political storm in the USA.  I wonder, though, whether in the meantime it will inspire solicitors working in education law to spend more time with education academics, or to try to persuade groups like the Sutton Trust to take the legal route?

Thomas Ogg

Children and Families Act 2014

June 13th, 2014 by Rachel Kamm

I posted yesterday about the publication of the SEND Code. Everything is coming together (finally!)  for the start of the new SEN regime from 1 September 2014.

The key provisions in Part 3 of the Children and Families Act 2014 commence on 1 September 2014. There will be Education, Health and Care Plans for children and young persons up to age 25, replacing both SEN statements and Learning Difficulty Assessments. For a summary of the changes and issues raised, see the  presentation produced back in April by Joanne Clement of 11KBW.

Since the Act gained Royal Assent, the Special Educational Needs and Disability Regulations 2014 have been laid before Parliament and also will come into force on 1 September 2014. The Special educational needs and disability code of practice: 0 to 25 years is in place, subject to Parliamentary approval. The Department has set out the proposed transitional arrangements and published implementation guidance.

To get an idea of what an EHC Plan may look like in practice, have a look at the examples of EHC Plans that have been published on the SEND pathfinder website.

Rachel Kamm, 11KBW

Publication of the SEND Code and announcement of funding for Councils

June 11th, 2014 by Rachel Kamm

The Government has published the Special educational needs and disability code of practice: 0 to 25 years. Subject to obtaining Parliamentary approval, it will apply from 1 September 2014 (when the majority of Part 3 of the Children and Families Act 2014 comes into force).

Alongside the Code, the Government has published a note setting out its intentions for the transitional arrangements and (recently updated) implementation guidance for local authorities and health partners.

The DfE today announced that Councils will receive £45m in funding to prepare for the new SEN regime.

Rachel Kamm, 11KBW

Update on DfE publications

May 24th, 2014 by Rachel Kamm

This has been a busy month for DfE already, including new guidance and consultations in the following areas:

Admissions

  • guidance for admissions to free schools;
  • guidance for the admission of summer-born children to maintained schools;
  • guidance for admission authorities managing the admission of previously looked-after children, as set out in the School Admissions Code; and
  • information and data on free schools applications per place for September 2014.

Governors

SEN and medical conditions

  • Statistics on SEN as at January 2013, including England information on primary type of need by age, gender, ethnicity, free school meal eligibility, national curriculum year group, first language and also information on secondary type of need; and
  • proposed text for guidance that will be issued under section 100 of the Children and Families Act 2014 (duty to make arrangements for pupils with medical conditions, which comes into force on 1 September).

School transport:

  • consultation until 3 June on new home-school transport guidance, which is intended to reduce prescription and allow greater freedoms for local authorities to develop transport policies that meet the needs of their areas.

Maintained schools causing concern

  • statutory guidance for local authorities when dealing with any maintained schools causing concern.

Schools funding

  • initial application guidelines for a second phase of the Priority School Building Programme, valued at around £2 billion, and due to run from 2015-2021;
  • Capital allocations for 2014-15, covering capital maintenance and devolved formula capital (DFC) allocations;
  • statutory guidance for schools and local authorities on what happens to a surplus or deficit balance when converting to academy status.
  • consultation until 2 June on proposals for converting non-recoupment academies to recoupment academies from the financial year ending 2016, which is intended to simplify the administration of academies funding; and
  • consultation until 19 June on how to implement reductions to the Education Services Grant by around £200 in 2015-16, as announced in the 2013 Spending Review.

Rachel Kamm, 11KBW

Revision of the ‘SEND code of practice: 0 to 25 years’

May 3rd, 2014 by Rachel Kamm

If anyone is short of things to do over the bank holiday weekend, there are still a few days left in which to respond to the DfE’s second consultation on its Draft special educational needs and disability code of practice: 0 to 25 years. The deadline is 5pm on 6 May 2014.

 Rachel Kamm, 11KBW

Section 9 “public expenditure” is that of any public body says Court of Appeal

April 3rd, 2014 by Paul Greatorex

The Court of Appeal has just given judgment in the case of Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398 reversing the decision of the Upper Tribunal which I covered in a blog post last September.

The UT had held that “public expenditure” in section 9 of the Education Act 1996 meant only expenditure from the relevant local authority’s education budget.  The Court of Appeal allowed the parent’s appeal and held that it means any expenditure incurred by any public body, as opposed to any private expenditure incurred by a private body.

The Master of the Rolls (Lord Dyson), with whom Pitchford and Rafferty LJJ agreed, held that this was the natural meaning of the words and such an interpretation does not give rise to difficulties which are so serious as to make the statutory provision unworkable or impracticable.

Although as Dyson J he had come to the opposite view in C v Special Educational Needs Tribunal [1997] ELR 390, largely on the basis of the difficulties in obtaining relevant information that such an interpretation would impose, he said that point had been dealt with convincingly in the case of O v Lewisham [2007] EWHC 2139 (Admin).  To summarise, the two answers given there were:

  1. section 322 of the 1996 Act which (in its current form) enables a local authority to call for assistance from another local authority, the National Health Service Commissioning Board, a clinical commissioning group or a Local Health Board, and
  2. the likelihood that these bodies would be eager to cooperate rather than reluctant because of the possibility that their budget will be relieved.

The position in practice of course remains to be seen, but the Court of Appeal also pointed out that section 9 does not impose a duty to act in accordance with parental wishes but merely lays down a general principle to which regard must be had.  It emphasised that it leaves it open to the local authority to have regard to other things as well and also to make exceptions to the general principle if it thinks it fit to do so.  An indirect effect on a ring-fenced education budget (something the UT had relied upon as a reason for the narrower interpretation) was given as an example of an “other thing” that might justify a refusal to accede to the parental preference.

Paul Greatorex