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Forthcoming consultation on “fair funding” for schools

November 23rd, 2015 by Tom Cross

The Chancellor’s Autumn Statement may be the subject of particularly close attention from local authorities and the governing bodies of maintained schools.

According to a number of mainstream media outlets (see here for the BBC: http://www.bbc.co.uk/news/education-34891689) the Statement will outline “plans to redress differences in school funding across England” following consultation which could begin in the next few months.

The context of the consultation is said to be the overall reductions in school budgets which will be seen in forthcoming years. Reductions across the board will hit some schools more than others. The Government seems to want to work out which areas may be most affected to inform how reductions may be made.

Achieving an overall reduction “fairly” is, of course, no easy task. By what indicators can or should it be assessed that particular schools or areas should receive a proportionately greater share of the diminished purse than others? Can or should they be the same as would be applied if now was a time of rising budgets? And to what extent is redressing differences in the quality of schools purely a financial matter, in any event?

No doubt whatever proposal emerges in due course will have its winners and losers. The BBC predicts that “London boroughs are likely to be among those that will lose out”. And no doubt lawyers in such boroughs, and elsewhere, will be examining the development of proposals closely to consider if there is scope for challenge in the courts.

New Higher Education Green Paper

November 6th, 2015 by Paul Greatorex

The Department for Business, Innovation and Skills has today published a green paper entitled “Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice”, which is open to consultation until 15 January 2016.

This is said to contain “ambitious proposals to put students at the heart of higher education”.  They include the following:

  • merging existing publicly-funded regulatory functions into a “single student champion organisation” called the Office for Students
  • a new Teaching Excellence Framework that will encourage a greater focus on high quality teaching and graduate employment prospects
  • measures to speed up the establishment of new higher education providers
  • encouragement for greater use of the Grade Point Average (GPA) system instead of the long-standing model of first, second and third class degrees
  • steps improve diversity and social mobility in higher education

All of which is a good excuse to remind you of our 11KBW Higher Education Conference on 16 November 2015 which still has some places available: for further information click here.

Paul Greatorex


Prosecuting parents for term-time holidays

November 5th, 2015 by Rachel Kamm

We posted last month about a decision by a magistrates’ court on the Isle of Wight to throw out the prosecution of a parent for taking his child on holiday during term time. The BBC reports that the local authority has appealed and that the question is whether “the unauthorised absence of a child for seven consecutive school days on holiday… amounts to the child failing to attend the school regularly“.

I’m grateful to Twitter for alerting me to this appeal and for asking whether I was aware of any articles setting out the law. Not being able to find any detailed analysis with a quick google, here is a summary of the (quite complex) legal context for the appeal.

The starting point is that there are two separate offences under section 444 of the Education Act 1996. Section 444(1) provides that “If a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, his parent is guilty of an offence“. If convicted, the parent is liable on summary conviction to a fine not exceeding level 3 on the standard scale (section 444(8)). The second offence builds upon the first offence. It is committed where a parent knows that the child is failing to attend regularly at the school and fails to cause the child to do so (section 444(1A)). If convicted of this second offence, the parent is liable on summary conviction to a fine not exceeding level 4 on the standard scale or to imprisonment for a term not exceeding three months or both (section 444(8A)).

There are a number of exceptions which are set out in section 444 itself. In particular, absences do not count if they are due to sickness or any unavoidable cause, if they are authorised by the school, if the day is exclusively set apart for religious observance by the religious body to which the parent belongs, or if the local authority failed to discharge a specified duty to make travel arrangements. There are particular provisions for children attending an independent school that is not within walking distance, where the local authority has not made arrangements for them to board or attend a nearer school.

If the child is a boarder, they are taken to have failed to attend regularly if absent without leave during any part of the school term (unless absent due to sickness or any unavoidable cause). There is no definition of “attending regularly” for non-boarders.

There is a statutory defence where the child has no fixed abode, the parent has a trade/business requiring them to travel, the child attended school as regularly as that trade/business allows, and the child attended at least 200 times in the previous year (if aged 6+).

It is the local authority (only) that has the power to prosecute (section 446). An authorised officer has the power to issue a penalty notice if there is reason to believe that an offence under section 444 has been committed (section 444A). Before instituting any proceedings, the local authority must consider  whether it would be appropriate (instead of or as well as instituting the proceedings) to apply for an education supervision order with respect to the child (section 447). The local authority also has powers to issue a school attendance order (section 347).

There have been quite a few decisions about the scope of section 444 over the years. However, these have focused on the applicable burden of proof (which led to an amendment of the section), the fact that it is a strict liability offence, and the available defences. Generally, the cases have concerned children with very high levels of absence, whose parents felt that prosecution was unfair because they were unable to force their children to attend school in their particular circumstances. I have not found any discussion about the meaning of regular attendance.

It seems to me that the statutory provisions about boarders and children with no fixed abode give a clue about the limits of “regular attendance”. The requirement for full attendance by boarders (only) suggests that full attendance is not required for a non-boarder to attend school regularly. On the other hand, 200 attendances a year (i.e. 100 days) will not be enough to count as regular attendance, given that this was set (in effect as an exception from the general rule) for a child with no fixed abode who travelled with their parent for their work. The legislation does not fix a particular number of days for other children, presumably because whether or not there has been regular attendance will depend on the pattern of attendance rather than just the number of days. It will be interesting to see whether the Court finds that an unauthorised absence of seven consecutive days counts as regular attendance in this case, in the context of the child’s attendance record over a longer period.

Rachel Kamm, 11KBW, @Kamm11KBW

11kbw top of the class for education law

November 2nd, 2015 by Holly Stout

We are delighted that 11kbw has once again been ranked as the leading set for education law in Chambers & Partners.  C&P say that we set the “gold standard for education work”.  With 4 ranked silks and 11 ranked juniors, we look forward to continuing to provide the best possible service to our clients in the coming year.  Many thanks to all our clients for your support. Gold stars all round!

But you promised! The High Court’s decision in R(C) v Westminster City Council

October 30th, 2015 by Tom Cross

A contention that a decision of a public authority is unlawful because it was taken in breach of the claimant’s legitimate expectation can be generally difficult to make out. R(C) v Westminster City Council (unreported), handed down in the last few days by the High Court, is a rare example of such an argument succeeding. More rarely still, the claimant established not that the council’s decision was in breach of a legitimate expectation that it would follow a particular process before being reached; but rather that it was in breach of his substantive legitimate expectation of a benefit, namely that the council would continue to fund his placement at a residential college for a further three years to allow for his completion of life skills courses and therapy.

The claimant was 21 and statemented. The local authority had confirmed that it would fund his three-year placement at an out-of-area residential college, at which he was to receive an academic course which normally lasted two years, as well as training towards independence, and speech and occupational therapy. The claimant successfully completed the course after two years but the other training and therapy which he was to receive remained outstanding. Upon the college’s requesting funding for a further two years, the authority decided to cease the placement and suggested that he attended a local college with a different support package.

The Court was unimpressed by the council’s change of position. It construed its initial confirmation of funding as being for three years providing the claimant progressed satisfactorily. The claimant had been the recipient of a clear promise to that effect. Although public authorities can seek to justify the frustration of a promise on the basis of an overriding interest, the council here did not seek to do so; it simply denied the existence of the expectation in the first place. So, the Court having found that the substantive legitimate expectation was, in fact, engendered, it followed that the claim succeeded.

Of some more general significance is the fact that the Court emphasized that the nature of the decision meant that it was subject to a greater degree of intrusive review by the court: few individuals were affected by it; it did not have any wide-ranging issues; the importance of what was promised was significant; and it only led to financial consequences for the local authority. This supports the view that the Courts may generally be more inclined to hold an authority to its promises in relation to the funding of special educational provision for an individual, than in other contexts.

The Court went on to find that, but for the breach of the claimant’s substantive legitimate expectation, it would otherwise have been lawful for the council to decide that the provision required by the claimant had changed. The problem for the authority was that the substantive legitimate expectation effectively precluded it from changing his support until the end of the period over which it had committed to provide it.

Fact-specific as this decision may have been, it provides a salutary warning to authorities about the importance of carefully expressing offers of provision, and encouragement to those who provision is withdrawn or changed in breach of an earlier commitment.

I was assisted in this blog by the case report obtained from Lawtel ©Thomson Reuters


Education and Adoption Bill Update

October 21st, 2015 by Rachel Kamm

Further to my summary of the education provisions in the Bill as introduced and Holly’s post about the Second Reading and Commons Committee stages, it’s time for another update.

The Commons Report and Third Reading stages took place on 16 September, without amendment to the Bill. The formality of the First Reading in the House of Lords took place on the same day. There is a very useful House of Lords Library Note, summarising the debates in the Commons and the reactions of some groups to the Bill.

Yesterday was the Second Reading in the House of Lords. You can read the debate here. Without attempting to summarise all of the arguments, here is a flavour of the discussion.

Lord Nash (Parliamentary Under-Secretary of State, Department for Education and academy sponsor) opened the debate, emphasising that ” we know that becoming a sponsored academy is the start of the process of rebuilding school performance, not the conclusion“. On the hot topic of coasting schools, he explained that “the Government published their proposed coasting definition at the end of June. Noble Lords have my reassurance that it is of course of paramount importance to the Government, as it is to the entire education sector, that we get the coasting definition right. We will therefore launch a public consultation seeking views on our definition, as well as listening to Parliament’s views during the course of our debates. We propose that the definition of a coasting school should be based on the progress pupils make and should take into account data over three years rather than a single Ofsted judgment. To qualify as coasting, schools will have to fall below a bar for each of the previous three years. Schools which fall within our definition of coasting will become eligible for intervention. I wish to reassure noble Lords that that the Bill does not propose any automatic interventions or academisation for coasting schools.

Lord Watson of Invergowrie (Labour) responded: “In practice, the Bill will simply fast-track many more so-called underachieving schools into academy chains and create a new label to stigmatise them and their staff and pupils with the toxic notion of coasting schools. There is a grave danger that this Bill will create a situation in disadvantaged areas where schools are simply unable to attract head teachers and teachers, because the chances of these schools being found wanting and forced into an academy chain are so great, with the implicit stigmatisation of their staff.” On coasting schools, he commented that “Adding insult to injury is the fact that the coasting label would apply only to maintained schools, although many academies are likely to fulfil the criteria that have now been laid down. What plans do the Government have to deal with academies that are coasting? The term “coasting” cannot apply; academy chains cannot be inspected by Ofsted and successful local authorities are not allowed to oversee failing academies in their area. That raises the question: quis custodiet ipsos custodes?

Lord Storey (Liberal Democrat) was also critical of the Bill: “it is more centralising, more bureaucratic, more undemocratic, and accountability is given a back seat. We cannot give parents a say in the matter because it is far too important; if a school is failing, we must get on with it—we cannot allow parents a voice. Neither can we give local authorities any say, even if they are a model of good practice and success, because they have no part in our plans. We will establish the wonderful term “coasting schools”, so that when the Secretary of State determines that a school is coasting we will be able, if we want, to force it to become an academy. What is more, because we cannot micromanage from the centre any more, we will give these Government-appointed regional commissars —sorry: commissionaires—the power to do so. Is that really the way to develop an educational policy or build up confidence with our school leaders? Would it not be more honest, if you share the Minister’s aim, to say what you really want to achieve and then work with schools to plan out the road map for the academisation of all our schools?

The Second Reading debate was the chance for the Lords to make general comments about the Bill (and education policy more widely). It is only once the Bill goes to Committee that amendments will be proposed and the detail of the drafting discussed. However, it is clear from the tone of the Second Reading debate that there will be some interesting discussions ahead.

Rachel Kamm, 11KBW, @kamm11kbw

Statistics on converter academies

October 21st, 2015 by Paul Greatorex

A House of Commons briefing paper was published yesterday which examines data on the number of converter academies and the types of schools that have decided to convert.  The first schools converted to academy status in September 2010 and as at 1 September 2015 the total number to have done so is 3,420.  This number breaks down as follows:

  • The majority (54%) are primary schools, making up 11% of all state funded primary schools
  • 1,393 converter secondaries, making up 41% of all state funded secondary schools
  • 132 special academies, making up 14% of all state funded special schools
  • 31 Pupil Referral Units and three 16+ institutions

There is considerable geographical variation: there are four local authorities where at least 90% of maintained secondary schools have converted (15 local authorities if sponsored academies are included) and one (Bury) with no secondary school conversions.  Local authority conversion rates for primaries are lower, only exceeding 50% in 2 local authorities (Darlington and Bromley) and 0% in 5 (Sefton, Warrington, Greenwich, City of London and Isles of Scilly), but over 20% in 45 authorities .

In terms of pupil intake, the report notes that secondary school converters had a smaller proportion than the national average of:

  • pupils eligible for free school meals (7.7% vs 15.4%)
  • pupils from minority ethnic groups (21% vs 23%), and
  • pupils with SEN (1.8% vs 2.0% statemented and 17% vs 20% unstatemented.

On the controversial subject of exam results, the 2014 GCSE results suggest that attainment levels were highest in schools that had converted to academies, clearly lower in sponsored academies, and the fastest improvements were in maintained schools, but the paper also points out that none of this is particularly surprising .  It refers to the Local Government Association report of July 2014 (which suggested there was no significant difference in attainment progress after two years between converter academies and similar non-academy schools) and agrees with that report’s view that a longer time frame is needed to get a better indication of the impact of conversion.

Finally, the paper notes that as at 1 September 2015 a further 782 schools had applied to convert (67% primary, 26% secondary, 4% special and 3% PRUs).

Paul Greatorex


Sir Michael Wilshaw evidence to the Education Select Committee and Caroline Lucas’s Personal, Social, Health and Economic Education Bill

October 20th, 2015 by Holly Stout

Some of you may have been following the progress of the Education Select Committee inquiry into the work of Ofsted. At a one-off evidence session with Sir Michael Wilshaw on 16 September 2015 Sir Michael answered questions about the new Common Inspections Regime and the 1200 additional inspectors who were ‘let go’ when that was implemented.  He assured the committee that, contrary to certain press reports, the additional inspectors were released not because they were not ‘up to the job’, but because they were surplus to requirements as the newer regime requires fewer inspectors and Sir Michael has brought inspection back ‘in house’.  Many former additional inspectors have successfully applied for the new in-house positions.  Sir Michael has now submitted further written evidence to the Committee in which he:

  • Reassures that former additional inspectors were not involved in the training of new inspectors;
  • Explains that records are not kept of individual inspectors school subject specialisms as that is not how inspections work, inspectors being trained to recognise quality teaching and learning regardless of subject;
  • Explains Ofsted’s approach to the inspection of local authority children’s services, with its emphasis on “clear lines of accountability and governance”;
  • Details the importance Ofsted places on being open with senior leaders about emerging findings during the inspection process, and how senior leaders are invited to inspection team meetings;
  • Explains that where complaints are made, Ofsted considers that the requests for information under the Freedom of Information Act 2000 (“FOIA”) can be refused while the complaint is ongoing. (It is not clear what FOIA exemption Sir Michael is referring to here, but possibly Ofsted has in mind s 31 (Law enforcement) which provides an exemption where disclosure of the information would, or would be likely to, prejudice, among other things, the exercise of a public authority’s functions for the purpose of ascertaining whether any person is responsible for any conduct which is improper, or which would justify regulatory action.)
  • States that Ofsted will routinely provide the ‘evidence bases’ written during its inspections in response to FOIA requests (redacted where appropriate to remove personal data).


There is also a Commons Briefing Paper out on Caroline Lucas’s Private Members’ bill on Personal, Social, Health and Economic Education. Read the full paper here.  The purpose of the Bill is to make PSHE a statutory part of the national curriculum.  This was Labour policy under the last Labour government.  The Coalition Government decided against it. Campaigns to make PSHE have generally met with resistance because many interested parties consider that PSHE is primarily the responsibility of parents.  Caroline Lucas’s Bill had its First Reading on 15 July and is due to have a Second Reading in the Commons in January 2016.

Holly Stout

Grammar school expansion

October 18th, 2015 by Rachel Kamm

There has been much debate in the news (e.g. BBC, Daily Mail, The Times) about the pros and cons of grammar schools, in light of the Government’s decision (welcomed by Kent County Council) to permit a grammar school in Tonbridge (Weald of Kent) to open a new annex in Sevenoaks for 450 girls (adding 90 places to the grammar school’s annual intake). The Secretary of State for Education, Nicky Morgan, made a statement to Parliament explaining the decision:

“I have today written to the head teacher at the Weald of Kent Grammar School in Tonbridge, Kent, to confirm that I have approved their proposal to expand on to a new site in Sevenoaks, Kent.

It is this Government’s policy that all good and outstanding schools should be able to expand to offer excellent places to local students. The Weald of Kent Grammar School is one of the top performing schools in the country, with 99% of its students achieving five A*-C grades in GCSE exams in 2014, and 98% of sixth form students achieving at least 3 A-Levels at grades A*-E.

The Weald of Kent Grammar School submitted a proposal for expansion in 2013. At that stage the then Secretary of State could not approve the proposal as an expansion because the proposal at that time was for a mixed sex annexe when the existing school was single sex. The school submitted a revised proposal in September 2015 under which girls will be educated on both sites alongside a mixed sex sixth form. I am satisfied that this proposal represents a genuine expansion of the existing school, and that there will be integration between the two sites in terms of leadership, management, governance, admissions and curriculum. I am also satisfied that the excellent quality of learning currently delivered will be replicated across the newly expanded school. I welcome the fact that the newly expanded school will better meet the needs of parents in the local area, with 41% of existing pupils at the Weald of Kent Grammar School already travelling from the Sevenoaks area.

The school expects to be able to start educating pupils at its new Sevenoaks site from September 2017.

My decision in this case has been taken on the basis of the proposal from the Weald of Kent, in line with legislation and criteria determining what constitutes an expansion. It does not reflect a change in this Government’s position on selective schools. Rather it reaffirms our view that all good schools should be able to expand, a policy which is vital to meet the significant increase in demand for pupil places in coming years. Further applications from good selective schools to expand will continue to be considered within the framework of the statutory prohibition on new selective schools and would have to meet the criteria for being a genuine expansion.”

Aside from the policy debates about selective schools, this is a controversial decision from a legal perspective. The Guardian speculates that “legal challenges are expected, with a judicial review most likely“. The issue is that there are legal limits on when schools can select by ability or aptitude in their admissions arrangements and the Government cannot create new grammar schools:

  • The Secretary of State’s power to designate schools as grammar schools is limited to maintained schools that had selective arrangements for all or substantially all of their pupils in 1997/8 (section 104 of the School Standards and Framework Act 1998).
  • Section 39 of the Education and Inspections Act 2006 provides that no admission arrangements for a community, foundation or voluntary school may make provision for selection by ability of compulsory school age pupils, unless (i) the school is a grammar school; (ii) the  selection arrangements existed back in 1997-8 without significant change and the proportion of selected pupils has not increased (under section 100 SSFA); or (iii) the selection arrangements are for pupil banding (under section 101 SSFA).
  • Selection by aptitude is only permitted under section 99 SSFA if (i) the  selection arrangements existed back in 1997-8 without significant change and the proportion of selected pupils has not increased (under section 100 SSFA); or (ii) the selection arrangements relate to aptitude for prescribed subjects and apply to up to 10% of admissions only (under section 102 SSFA).
  • The general rule for academies is that they have to provide education for pupils of different abilities (section 1A of the Academies Act 2010). However, existing grammar schools and schools with pre-existing selection arrangements can continue to be selective if they convert to academy status (section 6 AA).
  • The process for expanding existing maintained schools (including grammar schools) is set out in Part 2 of the Education and Inspections Act 2006 and the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2013/3110. The statutory guidance discusses when an expansion onto a new site will be a genuine expansion and when it will be treated as a new school. Decisions are taken on a case-by-case basis, taking into account the reasons for the expansion, how the two sites will be used, governance and administration arrangements, and the use of the facilities.
  • Where the grammar school in question is an academy (as in this case), the relevant statutory guidance provides that academies have to obtain Secretary of State approval (via the EFA) for any significant change.  An expansion that increases the published admissions number (PAN) must be made as set out in the School admissions code. As with maintained schools, if an expansion onto a new site is proposed, the Secretary of State will take into account reasons for the expansion, how the two sites will be used, governance and administration arrangements, and the use of the facilities. Before seeking the Secretary of State’s approval, the Academy Trust must first consult (including with the local authority and parents) and consider the equality implications of the proposal.

Given this legal framework, the big question is whether the Weald of Kent is proposing a genuine expansion of an existing grammar school or whether the expansion is unlawful because (in substance) it would be a new school. It sounds as though the grammar school is taking steps to move pupils between the two sites and to organise the governance arrangements so as to meet the test for a genuine expansion. However, any court challenge would be likely to consider the factual arrangements in detail and so it is difficult to predict the outcome at this stage.

As a footnote, it is interesting to see that the number of grammar school places in fact have increased since the late 1990s.  The House of Commons Library has a very useful briefing paper on Grammar School Statistics, last updated in December 2013, that explains that “There has been a very gradual but steady increase in the number and proportion of pupils at existing grammar schools over the past 25 years as their average size has increased“.

Rachel Kamm, 11KBW, @kamm11kbw



Prosecuting parents for term-time holidays

October 16th, 2015 by Paul Greatorex

A number of newspapers today reported the decision of a magistrates’ court on the Isle of Wight to throw out the prosecution of a parent for taking his child on holiday during term time.  The only details available are those reported in the press, but it appears that the court accepted the father’s argument that the holiday did not mean his daughter had failed to attend school regularly.  Decisions of magistrates’ courts are not binding and of course other similar prosecutions have been upheld.  It will only be if the matter comes before the Divisional Court (on an appeal by way of case stated) or the Administrative Court (on a claim for judicial review) that the point will be decided authoritatively.

Two of the reports are in the Guardian and the Daily Mail.  (Just remember that GCHQ can probably tell which one you click on and will make a note on your file.)

Paul Greatorex