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Teacher Appraisal Update

January 25th, 2012 by Christopher Knight

On 24 January 2012 the Education (School Teachers’ Appraisal) (England) Regulations 2012 were laid before Parliament. Shortly before this, the Department for Education published ‘Teacher Appraisal and Capability: A Model Policy for Schools’.

The combined effect of the Regulations and the Model Policy, both of which come into force on 1 September 2012, is to make a number of changes to the way in which teachers are appraised and are monitored prior to removal. The Regulations include the following:

•Governing bodies and local authorities will have to have a written appraisal policy for their teachers;
•Governing bodies will have to appoint an external adviser to advise them with appraising the head teacher;
•Objectives will have to be set for each teacher which contribute to improving the education of pupils;
•Schools will have to have an annual appraisal process for teachers;
•Teachers will have to be given a written appraisal report which sets out: an assessment of their performance; an assessment of their training and development needs; where relevant, a recommendation on pay progression;
•Teachers’ performance will be assessed against the relevant standards, against their objectives and against their role in the school. Under the current arrangements, the standards are seen merely as a “backdrop” to performance management discussions;
•Most of the prescription in the current regulations will disappear, including the three hour limit on classroom observation. After September 2012, governing bodies and local authorities will be free to make their own decisions about the amount of observation that is appropriate for their teachers. They will also be free to decide many other matters on which they currently have no flexibility.

The Model Policy removes an informal capability process and the suggested length of the monitoring and review period following a first warning has been reduced in length from 20 weeks to between 4-10 weeks. It is important to note that the length of the review period must be reasonable in the circumstances of each case, and must provide sufficient time for improvement to take place. This was the main headline from the Department’s press release, but is counterbalanced by the requirement of compliance with the ACAS Code and that any monitoring period be set by reference to a reasonable and proportionate length of time.

For more comment on the changes see this LexisNexis news article.

New admissions regulations and codes

January 11th, 2012 by Rachel Kamm

I posted in November 2011 that the Department had published the new admissions code and admissions appeals code in draft. On 1 December the Codes were laid before Parliament and, subject to the views of Parliament, will come into force on 1 February 2012, affecting the 2013/14 admissions intake.

The Government laid three draft Regulations before Parliament yesterday, which all relate to admissions and, again subject to the views of Parliament, will come into force on 1 February 2012:

The first set of Regulations are the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012, SI 2012/8. They consolidate, with amendments, the School Admissions (Admission Arrangements) (England) Regulations 2008, the School Admissions (Co-ordination of Admission Arrangements) (England) Regulations 2008, and the School Admissions (Local Authority Reports and Admission Forums) (England) Regulations 2008. They cover the following topics:

  • Selection;
  • Priority for looked after children;
  • Consultation on admission arrangements. The explanatory note states that “There is a new provision (regulation 14) that exempts schools that are their own admission authorities from having to consult on a proposal to increase or to keep the same admission number (the number of pupils they intend to admit). Admission authorities which are the local authority (for community and voluntary controlled schools) are required to consult the school’s governing body where they propose to increase or keep the same number. The period over which a consultation is not required when there has been no change to the admission arrangements is increased from 3 to 7 years (regulation 15). An increase to the admission number or a change made to comply with a mandatory requirement of the School Admissions Code or these Regulations is not a change that would require a consultation (a local authority, as admission authority, would consult the governing body of community or voluntary controlled school if they proposed an increase to the number as set out above). During a consultation admission authorities are required to publish their proposed admission arrangements on their website where they have one, and send copies on request to the people or bodies listed in regulation 12 (regulation 16). Consultation must last at least 8 weeks and be completed by 1st March. For admission arrangements for academic year 2014-2015 and subsequent years consultation must commence no earlier than 1st November 2012 (regulation 17).
  • Publication of admission arrangements;
  • Variation of determined admission arrangements;
  • Reference of objections to the adjudicator. Note that these provisions apply to both maintained schools and academies. The explanatory note states that “Objections that may not be referred include an objection regarding a decision to increase or keep the same admission number (though in relation to community and voluntary controlled schools the governing body, where it is not the admission authority, may object to an increase or no change to its admission number) and an objection to an agreement between the Secretary of State and the proprietor of an Academy that the admission arrangements for an Academy may vary from the School Admissions Code in an Academy’s funding agreement (Academy arrangement) (regulation 21). Provision is made restricting the referral of an objection regarding the same or substantially the same issue at a maintained school or Academy that has already been determined by the adjudicator within a two year period for that maintained school or Academy (regulation 22); for time limits for objections (regulation 23); for prohibiting anonymous objections (regulation 24); and requiring the information listed (in Schedule 1) to be provided by an admission authority when requested by the adjudicator (regulation 25).
  • Co-ordination of admission arrangements. The explanatory notes states that “The qualifying scheme will co-ordinate the applications made in the course of a normal admission round (applications for a normal year of entry, made according to the annual timetable for applying to primary and secondary schools) and late applications (applications for the normal year of entry, made outside the course of a normal admission round but before the first school day of the academic year). There is no requirement to co-ordinate in-year applications for 2013 and subsequent years. Provision is made for the actions to be taken by the local authority in formulating a scheme, including consultation where the qualifying scheme is substantially different to the scheme adopted for the previous academic year or where it is 7 years since the last consultation (regulation 27); for a local authority to inform the Secretary of State whether they have secured the adoption of a qualifying scheme by 15th April (regulation 28); and for the Secretary of State to impose a scheme if no such qualifying scheme has been adopted (regulation 29). Regulation 30 prescribes 1st March for secondary schools and 16th April for primary schools as the dates (the offer date) on which an offer must be sent to a parent regarding their child’s primary or secondary school place. Sections 496 and 497 of the Education Act 1996 are applied to a local authority or a governing body as if any obligations imposed under a qualifying scheme were imposed under that Act (regulation 32).”
  • Adding the clerk to an appeal panel as a relevant person for the purposes of section 88Q (relevant persons who must provide information to a local authority); and
  • Listing the representatives of the religions and religious denominations for schools designated as having a religious character.

These Regulations mainly apply in relation to arrangements under which pupils are admitted to schools in England for the academic year 2013-2014 and subsequent years.  The exception is that the provision for the co-ordination of admissions only applies to arrangements for admission to schools in England for the academic year 2014-2015 and subsequent years. In respect of objections to admission arrangements, the Regulations apply to both schools and Academies.

The second set of Regulations are the School Admissions (Appeals Arrangements) (England) Regulations 2012, SI 2012/9. These Regulations are short and only prescribe the manner in which an appeal panel is to be constituted (regulation 5 and the Schedule) and the payment of allowances to appeal panel members by the body or bodies responsible for making the arrangements in respect of financial loss, and travel and subsistence expenses (regulation 6). The explanatory note states that “These Regulations revoke and replace the Education (Admission Appeals Arrangements) (England) Regulations 2002 and two sets of Regulations that amended them. Those Regulations provided for matters of procedure and decision making in appeals and imposed duties to advertise for lay members and train and indemnify panels. Those provisions are not replicated in these Regulations as such matters are provided for in the School Admission Appeals Code issued by the Secretary of State under section 84 of the School Standards and Framework Act 1998. These Regulations condense provisions of the previous Regulations relating to the composition of appeal panels, and permit panels to consist of any number of members provided there are at least three (the Schedule).” The Regulations apply to appeals lodged on or after 1 February 2012.

The third and final set of Regulations are the School Admissions (Infant Class Sizes) (England) Regulations 2012, SI 2012/10. They revoke and replace the Education (Infant Class Sizes) (England) Regulations 1998 and the Education (Infant Class Sizes) (England) (Amendment) Regulations 2006, adding new categories of excepted pupils and changing the circumstances in which pupils cease to be excepted.The limit imposed is a maximum of 30 pupils in an infant class at any time while an ordinary teaching session is conducted by a single school teacher (or, where the session is conducted by more than one school teacher, a maximum of 30 pupils for every teacher). This limit applies in relation to the 2013-2014 school year and subsequent years for any maintained school which contains an infant class. Excepted pupils are children for whom suitable education cannot be provided in an infant class at that school without relevant measures (as defined) having to be taken and who are:

  • A child with a statement admitted to the school outside a normal admission round as a result of the local authority specifying the school in the child’s statement under section 324(5)(b) of EA 1996(7);
  • A child without a statement who is looked after by a local authority (within the meaning of section 22(1) of the Children Act 1989(8)) and is admitted to the school outside a normal admission round;
  • A child without a statement who was previously looked after by a local authority but ceased to be so because they were adopted(9) or became subject to a residence order(10) or special guardianship order(11), and who is admitted to the school outside a normal admission round;
  • A child without a statement admitted to the school outside a normal admission round who was initially refused admission to the school owing to a failure properly to implement the school’s admission arrangements, but was subsequently offered a place by virtue of a determination by the admission authority that there had been such a failure in relation to the child;
  • A child without a statement admitted to the school outside a normal admission round by virtue of a determination of an appeal panel in accordance with section 94(6) of SSFA 1998(12);
  • A child without a statement admitted to the school outside a normal admission round—(a) in relation to whom the school is the only school (apart from any school to which the child has already been refused admission or from which the child has been permanently excluded) which— (i) is within a reasonable distance from the child’s home, and (ii) provides suitable education; and (b) who did not, at the relevant time (as defined), ordinarily reside at a place which was within a reasonable distance from the school. The local authority is required to confirm in writing that they are satisfied the child fulfils criterion (a);
  • A child without a statement whose parent is in the armed forces and who is admitted to the school outside a normal admission round;
  • A child without a statement whose twin or other sibling from a multiple birth is admitted in the same age group otherwise than as an excepted pupil;
  • A child (with or without a statement) who is a registered pupil at a special school(13) but, by arrangement between the school and the special school, receives part of their education at the school; or
  • A child (with or without a statement) who is normally educated in a unit which forms part of the school and is specially organised to provide education for pupils with special educational needs, but spends a minority of their time in the infant class.

All in all, there is a lot of detail to take on board before 1 February 2012…

Rachel Kamm

Local schools for local children

January 3rd, 2012 by James Cornwell

The Administrative Court has held in R (on the application of Roberts) v Welsh Ministers and Cardiff City Council [2011] EWHC 3416 (Admin) (http://www.bailii.org/ew/cases/EWHC/Admin/2011/3416.html) that a local authority is not precluded from adopting a policy which seeks to match school places with the likely demand from children within the catchment area of the school.

The case concerned a challenge to the decision of the relevant Welsh Minister to approve a proposal from Cardiff City Council to reorganise primary provision in the Whitchurch area of the city. Two English medium schools (Eglwys Wen and Eglwys Newydd – “EW” and “EN”) were to be closed and replaced by a single school located at a site shared by EW and a Welsh-medium primary school, Ysgol Melin Gruffydd.

Section 9 of the Education Act 1996 (“the 1996 Act”) imposes a duty upon the Secretary of State (or, in Wales, the Welsh Assembly Government) and local authorities to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. Section 86(1) of the School Standards and Framework Act 1998 (“the 1998 Act”) obliges a local authority to make arrangements for enabling the parent of a child to express a preference as to the school at which he wishes the child’s education to be provided.  Section 86(2) makes it mandatory for a local authority to comply with that parental preference but the duty does not apply if the preference would prejudice the provision of efficient education or the efficient use of resources.

Wyn Williams J identified the “nub” of one plank of the claimant’s challenge to be to the local authority’s avowed policy of “local schools for local children” (i.e. a policy essentially of ensuring that there were enough places for children in the catchment area but closing surplus places) (see at [123]). The Judge held that the effect of the above statutory provisions was that all local authorities have a duty to comply with parental preference unless compliance with the preference would prejudice the provision of efficient education or efficient use of resources within their administrative area. However, these did not preclude the adoption of a policy which sought to match school places with the likely demand from children within the catchment area of the school. Nor did the provisions make it unlawful for a local authority to have a policy which encourages children to attend the school in whose catchment area they reside. Wyn Williams J held that a local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area (under section 13 of the 1996 Act) and it was open to them to conclude that an appropriate means of securing such efficient education for the whole of its area was to seek to achieve a reasonable match between the number of places at a particular school and the demands for such places from the catchment area of the school. See at [124-125].

The Judge did not accept that, because a possible effect of the proposal might be that pupils who would attend EN or EW (should those schools continue to exist) but who resided out of their catchment areas would be forced to attend a school other than the new school which was intended to replace them, the policy was thereby in conflict with section 9 of the 1996 Act or section 86 of the 1998 Act. The aim of the policy was the provision of efficient education in whole of the administrative area and parental choice in any given case and, more particularly, the fact that choice in an individual case might be denied was not a reason for concluding that the policy was unlawful. See at [127].

Also of wider significance within Wales (although not England) is Wyn Williams J’s consideration of the Welsh Assembly Government’s Circular 21/2009, “School Organisation Proposals”. Section 2 of the Circular contains guidance relating to “popular” schools. The question arose as to whether the Minister should have treated EN as a “popular” school. The term “popular school” is not defined in the Circular. The Judge held, applying R (Raissi) v Secretary of State for the Home Department [2008] QB 836 that it fell to the court to determine the meaning of guidance contained in the Circular (rather than the court being limited to assessing whether the Minister’s interpretation of the guidance was a rational one). The Judge held that, in the context of the Circular, a reasonable and literate person would regard a school as popular only if the school’s surplus places were 10% or less over a period of time (see at [45-46]). The Judge further held that one of the bases on which the Minister had in fact decided that EN was not a popular school, namely relying on the number of surplus places at a particular moment in time when he knew or ought to have known that  the number was very unlikely to be properly representative, was irrational (see at [55-58]).

However the Judge decided not to quash the decision because he was satisfied that had the Minister applied the correct test there was no material that would have permitted the conclusion that EN was a popular school (see at [67-70], [149-162]). Similarly the Judge’s finding that the Minister failed to comply with his duty under Secretary of State for Education v Science v Tameside Metropolitan Borough Council [1977] AC 1014 to ascertain a proper factual basis for his assessment of the capital costs of implementing the proposal (see at [93-97]) did not lead to the decision being quashed because the issue in relation to costs simply did not arise if EN was not a popular school (see at [148], [158]).

Wyn Williams J also considered and rejected a number of other grounds of challenge specific to the particular facts of the case.