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Secondary school admissions

March 25th, 2012 by Rachel Kamm

The Government has published statistics giving local authority level information about secondary school applications and offers received by parents on National Offer Day 2012 (1 March). It details the number of applications received, offers made based on preferences expressed, alternative offers and offers to schools within and outside of the local authority. It reports that the key points are:

  • 85.3 per cent of families received an offer of a place at their first preference school – an increase of 0.7 percentage points compared to March 2011 and continuing the recent rising trend.
  • 95.9 per cent of families received an offer of a place at one of their top three preferred schools – an increase of 0.3 percentage points compared to March 2011 and continuing the recent rising trend.
  • 97.6 per cent of families received an offer of a place at one of their preferred schools – an increase of 0.3 percentage points compared to March 2011 and continuing the recent rising trend.

The Government’s press notice highlighted that around 5,000 fewer children missed out on a place at their first choice secondary school than last year. However, it acknowledged that this year there were around 8,500 fewer children applying for a place at secondary school compared to 2011 and that the total number of places available remained broadly the same.

Rachel Kamm, 11KBW

New Permanent Secretary for the Department for Education

March 23rd, 2012 by Christopher Knight

For those of you who follow such things, the Department for Education has announced the identity of the next Permanent Secretary of the Department.

The lucky winner is Chris Wormald, who is currently the Director General for the Deputy Prime Minister’s Office. His predecessor, Sir David Bell, has left to take up the Vice-Chancellorship of Reading University.

Mr Wormald will take up his new post at the end of March.

Transport costs

March 23rd, 2012 by Rachel Kamm

The Court of Appeal has considered whether two schools can be named in Part 4, with the parental preference only named on condition that the parents pay the transport costs: Dudley MBC v Shurvinton & Ors [2012] EWCA Civ 346.

The child’s statement provided in Part 4 that “The Local Authority would consider that [J's] needs could be met in his nearest special school for pupils with moderate learning difficulties, namely Halesbury School…[The parents] have expressed a preference for The Brier School…which has been agreed. However in accordance with the Local Authority’s home to school transport policy [the parents] will be responsible for all travelling expenses and arrangements”.

The parents appealed to the First Tier Tribunal, which ordered that Part 4 should name Brier School (alone). It found that both schools could meet the child’s needs but that it would not be an inefficient use of resources to pay the slightly higher transport costs involved in meeting the parental preference. As this blog reported last February, the Upper Tribunal upheld the FTT’s decision and provided the following guidance for cases where two schools are suitable and the parents prefer School B:

(1) The first stage is for the FTT to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.

(2) If the FTT determines that the costs of transport to School B is not incompatible with the efficient use of resources, the FTT must name School B in Part 4 (and only School B, even if School A is also suitable).

(3) If the FTT determines that the cost of transport to School B is incompatible with the efficient use of resources then it is not required to specify School B in the Statement and should normally specify School A (although the UT took the, perhaps surprising, view that the FTT still has a residual discretion to name School B in those circumstances in order to give effect to parental preference).

(4) Alternatively, the FTT may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

The Court of Appeal has upheld the Upper Tribunal’s decision (whilst expressing one reservation about the reasoning). The Court rejected the local authority’s argument that the FTT did not have jurisdiction to consider transport costs in this way, as transport was not educational provision. This argument put form over substance; there was a dispute about educational provision, in that the local authority would only agree to the parents’ choice being named in Part 4 if the parents agreed to pay the transport costs. The FTT ‘stood in the local authority’s shoes’ at the appeal stage and so if the local authority had brought transport costs into play then the FTT was required to resolve that issue.

The Court of Appeal’s only reservation about the Upper Tribunal’s guidance related to (3) above.  The Upper Tribunal had said at paragraph 42 that if two schools were suitable and the parental preference would be incompatible with an efficient use of resources, “The tribunal should then consider whether that school should nonetheless be specified taking account of the duty to have regard to parental preference under s.9. If the conclusion is to that effect after taking into account transport costs to the parents’ preferred school … then for the same reasons the parents’ preferred school alone should be named in Part 4 of the Statement”. As this blog commented, the Upper Tribunal’s reasoning here was surprising. The Court of Appeal has now clarified that the FTT does not have any residual discretion to name the parental preference (alone) if it would be incompatible with an efficient use of resources for the local authority to pay the associated transport costs.  Section 9 does not mean that parental preference is to prevail unless it involves unreasonable public expenditure; in dealing with special schools, the local authority and FTT must also observe the specific provisions of paragraph 3(3) of Schedule 27 (which has the effect that a preference may be expressed but it is subject to the qualifications set out in paragraphs 3(3), one of which is the efficient use of resources).

It follows that the guidance (as amended in light of the Court of Appeal’s decision) is that where two schools are suitable and the parents prefer School B:

(1) The first stage is for the FTT to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.

(2) If the FTT determines that the costs of transport to School B is not incompatible with the efficient use of resources, the FTT must name School B in Part 4 (and only School B, even if School A is also suitable).

(3) If the FTT determines that the cost of transport to School B is incompatible with the efficient use of resources then it is not required to specify School B in the Statement and should normally specify School A.

(4) Alternatively, the FTT may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

Rachel Kamm, 11KBW

Questions of liability when things go terribly wrong on a school trip.

March 20th, 2012 by Clive Sheldon QC

Taking children on school trips can provide them with tremendous educational opportunities. On the other hand, things can go wrong, and questions of legal liability can arise. The recent case of XVW & YZA v. Gravesend Grammar School for Girls [2012] EWHC 575 (QB) explores the legal responsibilities of schools where something has gone terribly wrong on a school trip.

Two girls between the ages of 15 and 17 took part in an adventure trip to Belize where they were raped by a local man (A) who owned the farm where they were staying. On the trip the girls were accompanied by a female school teacher, and two representatives of an adventure travel group. A claim for negligence was brought against the school and the company involved in arranging the trip.

Mackay J. rejected the argument that the school was vicariously liable for A’s actions. It was suggested that although he was not an employee of the school, he was “recruited or enlisted as part of the leadership team and entrusted with the supervision and care of the girls”. Mackay J. explained that the test of vicarious liability was set out by the House of Lords in Lister v. Hesley Hall Limited [2002] 1 AC 215: the key question was whether there was a sufficient connection between the acts of the tortfeasor and the work he had been employed to do such as to make it fair and just that the employer should be liable for them. In Lister, the sexual abuse of children by the warden in a boarding house was ‘inextricably interwoven with the carrying out by the warden of his duties’, and vicarious liability was made out.

In the Gravesend case, Mackay J. accepted that the girls did work on A’s farm, and that A allocated the work and explained what was to be done. Nevertheless, Mackay J. found that the work was carried out under the direct and continuous supervision of the leaders, and “true control” of the tasks performed by the girls lay with the leaders and not A.  Similarly, although A had facilitated a trip to a local swimming pool the day before the rapes, and had driven them to and from a bar the previous evening, the judge found that the girls were continuously under the direct supervision of the leaders. In the circumstances, Mackay J. held that the facts fell far short of a situation where it would be just and reasonable to hold the school vicariously liable for A’s actions.

Mackay J. also rejected a claim based on direct liability. It was contended that the school breached their duty of care in arranging for only one teacher to be allotted to the group. Reference was made to the Department for Education and Employment’s good practice guide: Health and Safety of Pupils on Educational Visits, applicable at the time. (This has now been replaced by a much shorter document put out by the Department for Education: Health & Safety: Advice on Legal Duties and Powers for Local Authorities, Head Teachers, Staff and Governing Bodies, Updated: 7 February 2012).

The previous guidance provided that ‘A minimum ratio of one adult to ten pupils is a general rule of thumb’ for school trips, and that ‘at least two of the adults should be teachers.’ On this trip, there were three adults attached to the group, but only one was a teacher. Mackay J. rejected the argument that it was negligent not to have arranged for another teacher to go with the group. The other two adults were former soldiers who had very substantial experience of this kind of trip. The judge found that ‘There was no occasion on this expedition when difficulties were caused by the absence of a second teacher; the presence of two technical experts, who between them had 50 years of military service and a large number of years of experience of expeditions in all environments, was a positive bonus.’

The judge went on to consider the further contention that the leadership team of three were in breach of their duty to exercise reasonable skill and care to keep the girls free from foreseeable harm at the hands of A, and specifically to respond appropriately to indications that A posed a risk to the girls: he had acted inappropriately towards them the previous day – at the swimming pool, and at the bar in the evening.

It was accepted by the school that a duty of care in tort was owed to the girls: that the school was obliged to take such reasonable care to ensure the safety of the pupils on the trip as would be taken by a reasonably careful parent. Mackay J. explained that the scope of this duty was whether “the situation was one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk” (per Sir Anthony Clarke MR in X and Y v. LB Hounslow [2009] EWCA Civ 286); which was merely another way of stating the principle from Caparo v. Dickman [1992] AC 605 that the imposition of the duty must be “fair just and reasonable”.

On the facts, Mackay J. found that the leaders were not put on notice that A had been “grooming” the girls as potential victims. They had not heard comments that A had made at the pool, and the comments were not reported to them. As for the suggestion that there was, in any event, a foreseeable risk of sexual assault of some kind which should have been protected against, and that the checks carried out on A were inadequate, Mackay J. held that he was satisfied that the checks were appropriate. There was no criminal record that had gone undiscovered. Furthermore, the girls were continuously supervised, and the judge found that ‘Short of posting a guard on the door of each cabana, or instituting some system of watch-keeping, there would have been no way of defeating’ A’s assault on the girls. A was ‘an unscrupulous, determined and skilful attacker’, and the precautions taken were found to be ‘reasonable and proportionate’.

In essence, Mackay J’s judgment acknowledges that schools must take seriously their responsibilities for risk assessment of school trips, and allocate appropriate resources. Schools cannot, however, be held liable for anything that goes wrong on the trip, even something that goes terribly wrong. There are some circumstances in which it is simply not just and reasonable to impose liability on schools for wrongdoing towards pupils in their care.

Some new SIs relating to teachers

March 8th, 2012 by James Cornwell

On 5th March 2012 a small cluster of statutory instruments following on from some of the changes brought in by the Education Act 2011 were laid before Parliament. Primarily, these address some of the consequences of the abolition of the General Teaching Council for England (“the GTCE”) (abolished by section 7 of the 2011 Act as from 1st April 2012). The regulations are the Teachers’ Disciplinary (England) Regulations 2012 (SI 2012/560) (“the Disciplinary Regulations”), the Education (Teacher Student Loans) (Repayment etc) (Amendment) Regulations 2012 (SI 2012/555) (“the Student Loans Regulations”), and the Education (Induction Arrangements for School Teachers) (England) (Amendment) Regulations 2012 (SI 2012/513) (“the Induction Amendment Regulations”) . All three regulations come into force on 1st April 2012.

The Disciplinary Regulations are the most substantial of the three. They provide for the procedure to be adopted by the Secretary of State when considering making a prohibition order under the new arrangements for teacher disciplinary regulation under sections 141A to 141E of the Education Act 2002 (inserted by the 2011 Act) following the abolition of the GTCE. The main points are:

  • Any decision under the Regulations may take into account a failure to comply with the personal and professional conduct standards set out in Teachers Standards.
  • Where the Secretary of State considers that a teacher may be guilty of unacceptable professional conduct or conduct that may bring the profession into disrepute or has been convicted of a relevant criminal offence, he must consider whether to discontinue the case or refer it to a professional conduct panel.
  • The professional conduct panel will consists of three persons (including at least one teacher and at least one other person) and must hold a hearing unless the teacher requests otherwise.
  • If the panel decides that the case is proven it must consider whether to make a recommendation to the Secretary of State that he make a prohibition order. The Secretary of State has to consider that recommendation and publish his decision. Where he decides to make such an order he must give notice to the teacher setting out the text of the order, the effect of the order and his reasons for making the order. The reasons must also be published. The Secretary of State must specify whether the order may be reviewed and, if so, the minimum period before which an application for review may be made.
  • The Secretary of State may also at any time when a decision is pending as to whether to make a prohibition order make an interim prohibition order if he considers it necessary in the public interest to do so. The teacher must be given seven days’ notice. The Secretary of State must review the order within 6 months and thereafter at 6 month intervals if the teacher makes a written application requesting a review.
  • There is a right of appeal against a prohibition order (but not an interim prohibition order) to the High Court within 28 days of notice of the order being served.

The Education (Teacher Student Loans) (Repayment etc) Regulations 2003 provide for reduction and repayment of student loans owed by newly qualified teachers in subjects where there are shortages of teachers. The Student Loans Regulations do two things. First, they remove the reference to the GTCE from regulation 10 of the 2003 Regulations (which requires the GTCE and General Teaching Council for Wales to provide information to the Secretary of State when he is considering an application by a teacher). Secondly, they revoke the Education (Teacher Student Loans) (Repayment etc) Regulations 2002, which should have been revoked when the 2003 Regulations came into force but were not.

The Education (Induction Arrangements for School Teachers) (England) Regulations 2008 provide that no qualified teacher is to be employed as a teacher at a relevant school unless he or she has satisfactorily completed an induction period. The Induction Amendment Regulations amend the 2008 Regulations in three areas:

  • They allow an induction period to be served in a 16-19 Academy (once the provisions in section 53 of the 2011 Act establishing such Academies are fully in force).
  • They add two new categories to the list of persons exempt from completing an induction period, namely those with Qualified Teacher Learning and Skills status and those qualified to teach in the state sector in Australia, Canada, New Zealand or the USA.
  • They substitute the Secretary of State for the GTCE in relation to certain functions in respect of induction periods. These principally concern: (a) the appointment of appeal panels to consider appeals against a decision that an induction period should be extended or that a teacher has failed satisfactorily to complete an induction period, and (b) the maintenance of a list of persons who have begun, but failed satisfactorily to complete, an induction period.

Discipline in Academies – the tyranny of legislation

March 7th, 2012 by Edward Capewell

One of the principal planks of the Academy schools programme is that Academies are ‘independent’ schools. The Coalition government’s aim was concisely expressed in ‘The Importance of Teaching’, the white paper which led to the Education Act 2011: “We want every school to be able to shape its own character, frame its own ethos and develop its own specialisms, free of either central or local bureaucratic constraint.”

The School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012 (SI 2012/619) could be seen as just such a constraint however.

In order to understand what they are about it is necessary to refer to section 550ZA Education Act 1996 which, as everyone knows, was inserted into that Act by section 242 Apprenticeship, Skills, Children and Learning Act 2009 and amended by section 2 Education Act 2011. Section 550ZA gives members of staff the power to search pupils for ‘prohibited items’ such as knives or drugs. One of the amendments introduced by the Education Act 2011 provides that ‘the school rules’ can identify ‘prohibited items’ beyond those prescribed by the statute. Mobile phones and ipods are perhaps obvious candidates.

What though, is meant by ‘the school rules’? In the nature of modern legislation this cannot be left to chance, or common sense. In the case of maintained schools they are “measures determined and publicised by the head teacher under section 89 of the Education and Inspections Act 2006.” What, though of Academy schools? Surely they can set their own rules without ‘bureaucratic’ interference?

Enter the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012. These do not say what the rules should contain, but prescribe the process which the principal of the Academy must follow in setting the rules. So by regulation 2 the principal must consult pupils, parents, staff and the proprietor of the Academy before making any such rules. She must also have regard to any guidance issued by the Academy proprietor. By regulation 3 she must make them ‘generally known’ among parents and pupils and must publicise them ‘in the form of a written document’ and take steps to bring them to the attention of pupils, parents and staff ‘at least once in every school year’.

Surely this was not what was intended by freedom from bureaucratic constraint?