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The importance of teaching – the Schools White Paper 2010

November 26th, 2010 by Edward Capewell

“At the heart of our plan is a vision of the teacher as our society’s most valuable asset…There is no calling more noble, no profession more vital and no service more important than teaching”. So says Michael Gove MP in his foreword to the White Paper published on 24th November (see Tim Kerr’s preview here) which sets out the coalition government’s aims for education in schools. Driving the whole paper appear to be two aims: (i) to break the correlation between wealth and educational attainment (the current situation being exemplified by the stark statistic that in 2007/2008 only 40 of 80,000 pupils eligible for free school meals went to Oxbridge – fewer than the number sent by Winchester College); and (ii) to ‘keep up’ with our international competitors.

This post focuses on changes to teaching and school discipline which the White Paper foreshadows. Some of the changes are relatively minor and un-surprising, some are more radical. This post describes a selection of the more interesting among them.

The government wants to change teachers’ performance, pay and capability procedures. More specifically, it wants to give more ‘freedom’ to schools to set them themselves. On pay the paper states:

-          “early in 2011 we will ask the School Teachers’ Review Body to make recommendations on introducing greater freedoms and flexibilities that will make the pay and conditions framework less rigid. We will consult on their recommendations, so that new and more flexible pay arrangements can be introduced at the end of the current pay freeze.” (2.31)

On performance and capability, it had been reported that the government wants to make it easier for head teachers to sack bad teachers. The paper states:

-          “The current regulations on teacher competence are complex, lengthy and fragmented. We will shorten and simplify them and remove the current duplication between the performance management and the ‘capability’ procedures for managing poor performance. This will enable head teachers to deal more swiftly, effectively and fairly with underperforming members of staff.” (2.33)

On 2nd June 2010, the government announced that it would be scrapping the General Teaching Council for England. No specific mention is made of the maintenance of a teaching register, but there will be a new, publicly available, ‘barred list’:

-          “After we abolish the GTCE in the forthcoming Education Bill…we will put new arrangements in place for the regulation of the teaching profession and for dealing with professional misconduct and incompetence. The Department will have the powers, where necessary, to bar teachers from the profession. There will be a simple list of those who have been barred which employers and the public will be able to access, and the disciplinary process will be simplified further by reducing the current range of sanctions to a ruling that a teacher will either be barred or not.” (2.36)

Much of the White Paper focuses on the need to reduce ‘bureaucracy’ which includes a welcome pledge to avoid over hasty resort to legislation:

-          “…we will remove statutory duties and requirements which we do not think need to be a legal requirement. Many of these requirements are ‘declaratory’ – they have little practical force – or else cannot reasonably be policed and enforced. Legislating in these areas is in our view ineffective…” (2.49)

Certain ‘duties and requirements’ are singled out for abolition:

-          “We will legislate to remove the duty on schools and colleges to cooperate with Children’s Trusts and abolish the requirement for local authorities to produce a Children and Young People’s Plan.” (2.50) The duties referred to here are those amendments made to sections 10 and 17 Children Act 2004 by sections 193 and 194 Apprenticeships, Skills, Children and Learning Act 2009.

-          “We will remove prescription on school governing bodies, simplifying the list of decisions that they are required to take” (2.52) “We are also removing the expectation on every school to complete a centrally designed self-evaluation form” (2.53) “we will abolish the Financial Management Standard in Schools (FMSiS) because it has become a tick-box paper exercise…”

-          “…we will legislate to abolish the requirement to give 24 hours’ notice for detentions.” (3.8) This is section 92 Education and Inspections Act 2006.

Statutory and non-statutory guidance will be cut down to a length suitable for holiday reading:

-          “we are reviewing all existing guidance, aiming to remove what is not necessary and sharply cut back what is left. We aim to establish a simple, definitive suite of guidance which can reasonably be read by a head teacher over a half-term break” (2.58)

-          In particular “Existing anti-bullying guidance is too long and fragmented, so we will rationalise and simplify this from nearly 500 pages to around 20 pages.” (3.21)

There are some new powers however, most notably those ‘quasi-police’ powers which Mr Gove had suggested he wanted to introduce. The White Paper says this:

-           “Teachers have been given powers to use force or physical restraint where necessary…” (which is presumably a reference to sections 242-245 Apprenticeships, Skills, Children and Learning Act 2009 which added sections 550ZA ff to Education Act 1996 and were brought into force on 1st September 2010. These give teachers a power to search pupils for alcohol, knives and other weapons, controlled drugs and stolen property. This will be “extended to include pornography, tobacco, and fireworks“(3.10)). Furthermore, the government will “issue a short, clear, robust guide on teachers’ powers to use reasonable force… [and] will legislate through the forthcoming Education Bill to give teachers a more general power to search for any item which they reasonably believe is going to be used to cause harm to others or to break a law…” (3.9-3.10)

There are also plans to protect teachers from ‘false allegations’ made against them, though it remains a little unclear by whom, or at what point, an allegation will be deemed to be ‘false’. The White Paper states that DfE will work with local authorities, the Home Office and ACPO on ‘speeding up’ investigations, “without compromising their integrity”. These are some of the other plans:

-           “…we will legislate to give anonymity to teachers accused by pupils” (3.11)

-          “We will update guidance to schools to ensure that allegations against a teacher do not automatically result in their being suspended. Where there are no risks to children, we want to see alternatives explored…” (3.13)

-          “…We will clarify that in future when employers are asked to give references for teachers they should never be required to report prior allegations which were found to be malicious or untrue. We will legislate to introduce reporting restrictions that prevent a teacher’s identity being revealed until the point at which they are charged with a criminal offence.” (3.14)

Last, but certainly not least, the government wants to reform the current system of exclusion appeals. The intention appears to be to make the Head teacher’s decision on exclusion more conclusive as IAPs will no longer have the power to re-instate a pupil, irrespective, it seems, of the needs of the child or the gravity of the error in excluding:

-           “…the possible re-instatement of an excluded pupil – however rarely this happens – can undermine the head teacher’s authority. We will legislate to reform independent appeals panels, so that there is still an independent review of decision making, but the review will not be able to compel re-instatement. If the review panel judges that there were flaws in the exclusion process thy can request that governors reconsider their decision and schools may be required to contribute towards the costs of additional support for the excluded pupil. But schools will not be forced to re-admit children who have been excluded.” (3.29)

The decision to exclude may also soon become one of very considerable consequence for the school itself however, under “a new approach” that the government “plan to trial”. This approach has strong echoes of the plan outlined in the Health White Paper to get GPs to commission hospital services themselves. It will operate like this:

-          “Schools will be free to exclude pupils, but they will then be responsible for finding and funding alternative provision themselves…we will explore shifting the money for alternative provision from local authorities to schools so schools can purchase for themselves the alternative provision they think will best suit disruptive children.” (3.38)

-          The government does accept however that “certainly in the short to medium term, we would need local authorities to retain a duty to ensure that sufficient provision is available, and to take responsibility for quality assurance. Over time, we hope to see responsibility pass more and more to schools themselves.” (3.41)

My next post will look at what the White Paper holds in store for the organisation of the Schools system, particularly the much-reported pledge to make Academies ‘the norm’.

Ofsted Annual Report

November 25th, 2010 by Edward Capewell

On 23rd November 2010 the Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, better known as the Ofsted Annual Report was published. The report is of course made pursuant to section 121 of the Education and Inspections Act 2006. It can be read here and there is a rather more easily digestible (though quite brief) summary here. The report of course covers the full range of Ofsted’s responsibility – so includes children’s social care and local authority children’s services – but the lion’s share deals with schools (see paragraph 51ff). I set out in this post some of the more interesting features of the report (with apologies for the torrent of statistics):

-          There were nearly 32,000 inspections and regulatory visits made between September 2009 and August 2010. That included inspections of over 6,000 maintained schools      (including academies) and 300 independent schools.

-          Of those schools inspected in 2009-2010, 13% were ‘outstanding’, 43% were ‘good’ 37% were ‘satisfactory’ and 8% were ‘inadequate’ (figures are rounded).

-          The number of outstanding schools was down from 19% the previous year and the number of inadequate schools was up 4% (from 4%). Ofsted is at pains to emphasise however that those figures are largely attributable to the new, more rigorous, section 5 Education Act 2005 framework for inspections which was published on 6th August 2010 (but applies to inspections carried out from September 2009) (fig 16).

-          55% of schools which were outstanding when last inspected were no longer outstanding when inspected in 2009-2010.

-          Nursery schools had the highest proportion of outstanding inspections (59%) with primary schools having the lowest (9%) (fig 13).

-          Nursery schools also had the lowest proportion of inadequate schools (3%) with secondary schools having the highest (13%).

-          Special schools generally performed better than ordinary maintained schools with 35% rated outstanding and 43% good (paragraph 58). However those figures hide considerable discrepancies between types of special school: those catering for children with behavioural, social and emotional difficulties were less than half as likely to be outstanding and more than twice as likely to be inadequate as other special schools. These issues are dealt with in more detail in Ofsted’s recent report on SEN (September 2010).

-          The figures for quality of teaching in different types of school are striking. The teaching in 57% of nursery schools was rated outstanding – the figure for primary schools a mere 5% and for secondary schools only 4%. 52% of primary schools and 47% of secondary schools provided good teaching however (fig 22).

-          Of 43 academies inspected, 11 were outstanding, 9 were good, 20 were satisfactory, and three were inadequate. Most of the academies inspected however were section 482 academies (typically converted from ‘failing schools’) rather than what the report describes as ‘fast track’ Academy Act 2010 academies (converted from outstanding schools) (paragraph 127).

-          The best academies, the report states, have “inspirational leadership”, ”a distinctive and flexible curriculum including a wide range of academic and vocational choices”, “highly committed and effective governance”, “very high and shared expectations across all classrooms” and “stimulating and interesting lessons” (paragraphs 130-132).

-          As at 31st August 2010, there are 300 schools (1.3% of the total) in special measures and 276 (1.2%) which have been given a notice to improve. (For more detail on the destinations of schools placed in special measures or given a notice to improve last year see paragraphs 440-514).

The Prime Minister’s foreword to the White Paper published yesterday promises to “re-focus Ofsted inspections on their original purpose – teaching and learning…” which appears to suggest that there will be another new framework for inspections soon. That no doubt means we can look forward to next year’s statistics not being directly comparable to this year’s, in the same way that this year’s are not directly comparable to last year’s. Not, perhaps, exactly a recipe for achieving what the White Paper calls “a streamlined and effective accountability system”.

The Freedom of Information (Time for Compliance with Request) Regulations 2010

November 24th, 2010 by Rachel Kamm

These Regulations are made under the Freedom Of Information Act 2000 and extend the time limit for Academies to respond to requests for information. The normal time limit for responding is twenty working days of date of receipt of the request. However, where the information is requested from an Academy, then any working day which is not a school day for that Academy is disregarded (subject to a long stop of sixty working days). These are the same timeframes as apply to schools covered by The Freedom of Information (Time for Compliance with Request) Regulations 2004 (S.I. 2004/3364) and The Freedom of Information (Time for Compliance with Request) Regulations 2009 (S.I. 2009/1369).

This post is also on 11KBW’s information law blog: http://www.panopticonblog.com/.

The Schools White Paper

November 23rd, 2010 by Tim Kerr QC

The Schools White Paper is due to be published on 24 November 2010.  It has been quite heavily trailed.  On 9 November last, the Today Programme reported that Mr Gove intends to compel schools to publish data on teachers’ salaries, qualifications and sickness records, so there will be fresh regulatory obligations as well as abolition of some old ones.  The same news report attributed to the Secretary of State an intention to shorten the 86 page admissions code and to allow successful schools to expand, presumably by removing the cap on the admission number.  The concept of rewarding success with expansion is easy to understand, but the expanded schools will have to find premises for classrooms and teachers to teach the additional pupils.  On 20 November 2010 a news report suggested that Mr Gove was planning to extend teachers’ powers by giving them power to frisk pupils for mobile phones, PDAs and games consoles, and to confiscate them.  It appears that the coalition government is keen to continue the previous government’s idea of enhancing teachers’ authority over pupils by giving them quasi-police powers.  It is too early to tell whether these will improve school discipline and academic achievement.

New Free Schools Likely to Bypass Planning Laws

November 23rd, 2010 by Tim Kerr QC

The government is currently (until 10 December 2010) engaged in a written consultation exercise, to consider in relation to England only (in the words of the consultation document) “whether classes of development within the Town and Country Planning (Use Classes) Order 1987 (as amended) should be given permitted development rights to change use to a school; and if so, which classes should have that right attached to them.”  The plan is (again in the words of the consultation document) “to reduce unnecessary regulation and make it easier for buildings currently in other uses to be converted to schools. …  [The government] proposes changes that apply to all schools. They will affect only those developments that involve purely converting non-school buildings for school use. Where a schools development requires any additional work to change the exterior of an existing building or is a new build development, planning permission will be required in the normal way”.  Among the options under consideration is the option to give a “permitted development right” – i.e. no need for planning permission – for certain existing uses (shops, offices, business premises, warehouses, hotels, residential institutions, leisure premises) to convert to school use; or to give a permitted development right to (nearly) all uses to convert to school use; which would mean that restaurants, bars, cafés and dwelling houses too could be converted to school use.  The second of the two options above would mean that your next door neighbour’s house could turn into a new free school (academy) and you would not be able to object through the planning system.  Government expects to exclude unsuitable premises through the process of agreeing terms for setting up of new schools – though the proposals are to apply to all schools, including local authority maintained ones.  The consultation document and recognises that some premises would be unsuitable for conversion to school use – giving the example of a skating rink.

Confirmation of opening up of academy applications

November 19th, 2010 by Rachel Kamm

Further to Peter’s post on Wednesday, the DfE website now confirms that a wider range of schools will be able to apply to become academies. Michael Gove has announced that ”Alongside outstanding schools, all schools that are ranked good with outstanding features by Ofsted will automatically be eligible for academy status. All other schools – primary or secondary – that wish to enjoy academy freedoms will also be eligible, providing they work in partnership with a high-performing school that will help drive improvement. In addition, for the first time, special schools will also have the opportunity to become academies, providing them the opportunity to operate with greater freedom and autonomy in order to better respond to the needs of children with special educational needs or disabilities. Special schools will be able to apply to convert in January.” (http://www.education.gov.uk/schools/leadership/typesofschools/academies/a0068006/academy-model-extended-so-every-school-can-benefit). More than 220 schools have applied and 80 academies have opened since July 2010.

Opening up academy applications

November 17th, 2010 by Peter Oldham QC

Peter Oldham QC

Section 3(1) of the Academies Act 2010 does not limit the type of maintained school that may apply to become an academy to those which have an outstanding OFSTED report.  Any English maintained school may apply.  However, at least until now, it has been the DfE’s policy to approve applications only from schools with an oustanding OFSTED.  There are media reports that the DfE is to open up the opportunity for successful applicants for academy conversion to be drawn from a wider group, to include schools with an OFSTED rating of good, with some outstanding features, and to schools which enter into some form of partnership arrangement with an outstanding school.  This, however, is not reflected by the current DfE website, so we await further details.

Peter Oldham QC

Can Governors/Head teachers sue for defamation?

November 5th, 2010 by Clive Sheldon QC

There is a long established principle that local authorities cannot sue for defamation: see Derbyshire CC v. Times Newspapers Limited [1993] AC 534. As Lord Keith explained in that case, ‘It is of the highest public importance that a democratically elected governmental body or indeed any governmental body should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech’. This principle will probably apply to Governing Bodies of maintained schools: they are public authorities, and so are akin to a ‘governmental body’. But, what about individual governors and head teachers. Can they sue for defamation with respect to how they have managed or governed a maintained school?

This question was recently answered by Tugendhat J. in the case of  McLaughlin v. London Borough of Lambeth [2010] EWHC 2726 (QB). The case concerns a claim for defamation in respect of a number of emails sent by the local authority to the Department for Children, Schools and Families, and a local MP, concerning the affairs of a school in Lambeth (now an Academy). The emails were allegedly defamatory, in that they suggested that successive Head Teachers of the school and the Chairman of Governors were ‘culpably responsible’ for, among other things, ‘failing to implement proper training standards or provide proper support for’ newly qualified teachers; ‘unreasonably dismissing able teachers’; and ‘failing to comply with’ the Council following an audit of the school’s finances, leading to a concern that ‘there remains a lack of transparency’ in the arrangements between the school and a third party management company’, and that the school’s Director for Education and Development ‘is being allowed to benefit improperly and/or unfairly from these arrangements to the detriment of the school.’

The Defendant local authority sought to strike out the claim on the grounds that it contravened the principle in Derbyshire. The Court rejected this submission. It was noted that in Derbyshire itself, Lord Keith had observed that ‘If the individual reputation of any of [the councillors] is wrongly impaired by the publication any of these can then himself bring proceedings for defamation’. This was recognised by LB Lambeth, but the local authority argued that this was not a ‘genuine’ claim brought for the purpose of vindicating an individual’s right, but was in substance a claim brought on behalf of the Governing Body of the school itself. It was an attempt to get round the rule in Derbyshire.

Tugendaht J. rejected this argument. He explained that ‘There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of business of a public body.’

So, those who wish to make complaints about Head Teachers or Governors should beware: they have no blanket protection from the law of defamation, even if what they are complaining about relates to the way in which the affairs of a school are being handled. Will this decision, and the risk of defamation claims, have a chilling effect on those who wish to make complaints? I doubt it.

11KBW speak at the LGG Education Conference

November 1st, 2010 by admin

On 9th November 2010 Tim Kerr QC, will be chairing the LGG Annual Education Law Conference. The day is to be held at the Royal College of Surgeons, London and is an essential legal update for Heads of Legal and all Lawyers involved in Education Law. James Cornwell will provide a comprehensive Case Law Update, Tim Kerr QC will provide an insight into the current legislation and the outlook for the future, James Goudie QC will discuss the Equality Act, Nigel Giffin QC will discuss Education Staff matters in misconduct, discipline and access to children, Joanne Clement with provide a SEN update and a case study featuring Peter Oldham QC, Rachel Kamm and Edward Capewell focusing on discipline and Information Rights.  There will also be an opportunity to participate in a question and answer session with the expert panel of speakers.

For more information regarding the conference go to http://www.lgg.org.uk/training/education-and-childrens-services/744