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Setting off students’ fireworks

July 25th, 2012 by Clive Sheldon QC

Members of staff of further education institutions and 16-19 Academies are empowered to search students if they have ’reasonable grounds for suspecting that a student at the institution may have a prohibited item with him or her or in his or her possessions’: section 85A of the Further and Higher Education Act 1992. That Act includes a lengthy description of ‘prohibited items’, which includes knives and blades, an offensive weapon, alcohol, a controlled drug, and a stolen article. If found on a student, these items may be seized.

The Secretary of State has now added to that list of ‘prohibited items’, by making the Further Education Institutions and 16 to 19 Academies (Specification and Disposal of Articles) Regulations 2012 (SI 2012/1925).
From the next academic year (1st September 2012), staff will be able to search for tobacco and cigarette papers, fireworks and pornographic images, save where the student concerned is aged 18 or over: as adults, the students are permitted to have these items in their possession and so can’t be searched for them.
The Regulations also explain what members of staff can do with the ‘prohibited items’ that are seized (see regulation 4):
(i) tobacco and cigarette papers can be retained or disposed of — presumably staff can smoke the said items if that is their wish;
(ii) fireworks can be retained or disposed of –
presumably staff can set them off on Bonfire Night if they see fit;
(iii) pornographic images can be disposed of, but if they are prohibited images of children or extreme pornographic images they must be delivered to a police constable as soon as is reasonably practicable. Staff cannot retain these items.

SEN and Academies: The Upper Tribunal has its say

July 11th, 2012 by James Cornwell

Academies are independent, non-fee-paying schools funded by the Secretary of State. For special educational needs (SEN) purposes, although Academies are deemed to be mainstream schools (see the Education Act 1996, s.316(4)(b)(iii)), they are not subject to the duties in relation to SEN that maintained schools (as defined in s.312(5)) are. That gap is, however, (at least partially) plugged by the terms of the Funding Agreement between the Secretary of State and the Academy Trust. Indeed, in relation to Academies created since the Academies Act 2010, s.1(7) of the 2010 Act requires the Funding Agreement to impose “SEN obligations” (i.e. the obligations under Chapter 1 of Part IV of the 1996 Act) on the Academy.

But what is the position of an Academy with an older funding agreement that pre-dates the 2010 Act and which may not contain such extensive requirements in relation to SEN?

That was the issue that arose before the Upper Tribunal in SC v The Learning Trust (SEN) [2012] UKUT 214 (AAC). Mossbourne Community Academy (MCA) is an oversubscribed Academy in Hackney. SC’s son has a statement of SEN. She expressed a preference that MCA be named in Part 4 of his statement. MCA opposed this on the grounds that admitting the child would be incompatible with the efficient education of other children. The Learning Trust (which performs the role of local education authority in Hackney) refused to name MCA. SC appealed to the First-Tier Tribunal (Health, Education and Social Care Chamber) (Special Educational Needs and Disability) in relation primarily to Part 4. The Learning Trust opposed the appeal on the grounds that the child’s attendance at the Academy would be incompatible with the efficient education of other children and that his SENs could be adequately addressed elsewhere.

The Trust also applied for the appeal to be struck out on the basis that due to the terms of the funding agreement the decision of the Tribunal would not be binding on MCA. The Tribunal acceded to that application and struck the appeal out on the basis that the appeal had no reasonable prospect of success.

MCA’s funding agreement, which was not in the current form of the DfE’s Model Funding Agreement, dealt with admissions of pupils with SEN at paras.23-26 of Annex 3. Paragraphs 24 and 26, in particular, provided that:

“Where a local education authority proposes to name [MCA] in a statement of SEN made in accordance with section 324 of the Education Act 1996, the Academy shall consent to being named, except where admitting the child would be incompatibly [sic] with the provision of efficient education for other children, and where no reasonable steps may be made to secure compatibility.

In the event of any disagreement between the … Academy and the local education authority over the proposed naming of [MCA] in a statement, the Academy may ask the Secretary of State to determine whether [MCA] should be named. The Secretary of State’s determination shall be final.”

In reaching its decision the Tribunal’s reasoning was essentially: (1) an Academy is not a maintained school so s.324(5)(b) of, and para.3 of Schedule 27 to, the 1996 Act do not apply; (2) MCA had not provided a confirmation of place which the Tribunal would expect from an independent school before it would name an independent school and it was not prepared to; (3) the funding agreement was silent as to the effect of any Tribunal decision and neither imposed nor imported into the agreement any obligation on MCA to comply with a Tribunal decision; (4) even if the Tribunal were to name MCA, the Academy would not admit the child and the order would be unenforceable; and therefore (5) the appeal had, in practical and legal terms, no reasonable prospect of success.

SC appealed to the Upper Tribunal. Judge Rowland allowed the appeal without an oral hearing and remitted the case to the Tribunal to proceed to a full hearing.  SC’s first ground of appeal was that the Tribunal had erred in having regard to the potential enforceability of a decision in favour of the parents. Judge Rowland rejected that argument: the enforceability of the decision was a plainly relevant consideration in relation to the appeal’s prospects of success and a school ought not to be named if it was under no obligation to consider admitting the child and made plain that it would not. The parents’ second ground of appeal was that the Tribunal erred by assuming that MCA would not change its mind even if the Tribunal decided in their favour. Judge Rowland ultimately accepted this argument: MCA was under a public law duty to reconsider its position in the light of the decision of the Tribunal and it would be “irresponsible and irrational” not to look at the view of an expert and experienced tribunal on the very issue that MCA had to express a view on.

The parents’ third ground of appeal was, however, the crux of the case: had the Tribunal erred by considering that a decision in the parents’ favour would be unenforceable? The Secretary of State provided written submissions to the Upper Tribunal setting out his understanding of what would happen in those (now rare) cases where the funding agreement contained no reference to the effect of Tribunal decisions. The Secretary of State’s position was that on appeal the Tribunal stood in the shoes of the local authority and proposed the naming of a school. If the Academy disagreed with that proposed naming then it could object to the Secretary of State whose decision would be final. However, the Secretary of State found “it very difficult to envisage” circumstances where he would disagree with the Tribunal.

Judge Rowland essentially accepted the Secretary of State’s position. First, on the basis of the funding agreement if MCA was named in a statement following a proposal, MCA had to admit the child. Secondly, the Tribunal naming MCA could be construed as the “proposed naming” of the Academy for the purposes of the funding agreement. Thirdly, if there was a clearly unresolvable dispute between the local authority (or, standing in its shoes, the Tribunal) MCA was obliged (not simply permitted) to refer the matter to the Secretary of State to make a binding determination. The Judge concluded that the funding agreement was perfectly consistent with the parents’ right of appeal to the Tribunal. Following a successful appeal the local authority would propose to MCA its naming in the statement and MCA would then (in deciding whether to consent to the naming or refer the matter to the Secretary of State) be bound to have regard to the Tribunal’s decision and the likelihood of the Secretary of State agreeing with it.

The Judge concluded that the position of MCA and other Academies was “totally different” to that of a private independent school and was not greatly different from that of a maintained school.

Teacher Capability

July 11th, 2012 by James Goudie QC

The School Staffing (England) (Amendment) Regulations 2012, SI 2012/1740, made pursuant to ss 35 and 36 of EA 2002, and coming into force on 1 September 2012, amend the School Staffing (England) Regulations 2009 (“the 2009 Regulations”).  They insert a new regulation (Regulation 8A) which requires the Governing Body of a maintained school to confirm whether or not a member of the teaching staff at that school has, within the last two years, been the subject of capability procedures (that is to say, procedures established in accordance with reg 8 of the 2009 Regulations for dealing with lack of capability on the part of staff at the school), and, if so, provide details, if asked to do so by the Governing Body of a maintained school, or the proprietor of an Academy School, to which that person has applied for a teaching post.  These Regulations also amend reg 4 of the 2009 Regulations to allow a Governing Body in accordance with that regulation, to delegate the performance of the function conferred on it by new regulations 8A.

New literacy catch-up programme

July 10th, 2012 by Rachel Kamm

On 14 May 2012, the Government announced up to £10m additional support for pupil premium children who leave primary school without Level 4 literacy. Today, more details have been provided. The press notice says that projects “will be set up across England to help disadvantaged pupils, who fail to reach the expected level of English by the end of primary school (level 4 at Key Stage 2). Some projects will be fast-tracked through the bidding process to start from this September, while other projects will start in 2013“.

Applications for funding from the Education Endowment Foundation (EEF) can be made here. The EEF is a charity which has received an endowment of £125m from the Department for Education. The press notice says that it “will run a competitive bidding process to fund innovative projects that build on either robust evidence or a strong and practical theory. It is expected that schools themselves, along with charities, local authorities and universities, will bid for the programme. Projects could start at the end of Year 6, in the summer between Year 6 and Year 7, and in Year 7 itself. The Foundation will also consider some projects which include mathematics“.

Rachel Kamm, 11KBW

Educational Providers

July 9th, 2012 by James Goudie QC

In R (CNM) v SSHD [2012] EWHC 1851 (Admin) the Claimant College challenged the Home Secretary’s decision to refuse their application for highly trusted sponsor (“HTS”) status under Tier 4 of the points-based system of the Immigration Rules. The requirements for Tier 4 Sponsors and HTS status are set out in Guidance, provided by SSHD, which has changed from time to time. The material Guidance came into force on 5 September 2011.  It provided that all Tier 4 sponsors who had held licences for 12 months or more had to apply for HTS status by 9 October 2011.

Tier 4 of the points-based system of the Immigration Rules lays down criteria for the entry and stay of students in the UK. Since 22 February 2010, all potential international students have required a CAS (Confirmation of Acceptance for Studies) issued by a licensed sponsor in order to obtain leave to enter or remain under Tier 4. All education providers wishing to take students from outside the European Economic Area for over 26 weeks (or over 11 months in the case of English language providers by way of a temporary concession from the Rules announced by the Minister on 13 December 2010) must be licensed sponsors. Education providers have been able to apply to join the Register of Tier 4 Sponsors since 28 July 2008. From 31 March 2009, any education provider who wishes to recruit international students has been required to obtain a Tier 4 licence and to be registered as a sponsor with the UKBA.

The eligibility criteria for HTS status include the requirement that the total number of CASs assigned by a sponsor and refused should not exceed 20 per cent.  CNM’s HTS status was refused on the basis that its refusal rate was greater than 20 per cent.  They submitted that in the absence of harm to immigration control, it was irrational for SSHD to refuse HTS status.  They argued that SSHD ought rationally to have discounted three students from its assessment of their refusal rate as those students were later successful in their applications and that should have brought the refusal rate to below 20 per cent.

However, Supperstone J held that the purpose of the criteria for HTS status is not just to exclude educational providers who have in fact harmed immigration control, but also to exclude those providers whose past behaviour indicates they may cause damage to immigration control in the future.  In essence, the SSHD and UKBA entrust to sponsors the vital function of monitoring compliance of its students with immigration law.  The policy applies equally to prospective students who are refused entry to the UK and to those who have already entered the country. In the case of the former there will be no actual harm to immigration control. However their cases may suggest that the sponsoring education providers do not have the processes they need to comply with their sponsorship duties. SSHD is not required to ignore such evidence when considering an application for HTS status. There is no justification for requiring SSHD to demonstrate that the sponsor has caused actual harm to immigration control in order lawfully to refuse their application for HTS status.

School and teachers not to blame for 14-year-old’s drowning on school trip

July 6th, 2012 by Holly Stout

Owen J has dismissed the claim brought by the mother of Charlotte Shaw, the 14-year-old who tragically died in May 2007 while on a school trip training for the Ten Tors expedition on Dartmoor.  Mrs Shaw claimed damages for personal injury, namely a chronic grief reaction and severe PTSD resulting from the death of her daughter and, as administratrix of her daughter’s estate, damages for loss to the estate.  The damages were agreed at £350,000, subject to Mrs Shaw establishing that the school and/or teachers responsible had acted negligently in relation to her daughter’s death.

The training was over a weekend, with 11 children and 4 adults, walking and camping on Dartmoor.  The children were, on the Sunday, to walk to checkpoints where they would meet their teachers.  They reached the first an hour early, but the teachers were not there as they had become lost orienteering.  It was cold and raining.  They rang their teachers, who told them to wait where they were.  Then a scout master, Mr Wills, found them.  He considered that they were too cold and should continue walking.  He rang the teachers and advised them accordingly.  The teachers agreed.  However, in order to reach the next checkpoint they had to cross a flooded brook (Walla Brook).  The teacher advised them to walk round the long way, but Mr Wills intervened and said he had crossed at a certain place earlier and that he considered it was safe to cross there.  He helped the group across the brook.  The penultimate girl was nervy and so Mr Wills told her to take her rucksack off.  She then crossed safely and Mr Wills asked Charlotte (the last girl) to throw the rucksack and then cross.  She dropped the rucksack, reached for it and fell in after it and was swept away.  Mr Wills was unable to reach her.

Owen J held that although the teachers leading the expedition had no relevant qualifications, they appeared competent and had prepared the team appropriately.  He also considered that the group had been capable and fit to continue at the time of the accident.  He accepted that Mr Wills’ intervention was the immediate cause of the accident, and that without his advice the group would have done as their teachers had thought appropriate and gone round the long way.  He also accepted that the teachers having themselves got lost was not negligent; the training for the Ten Tors was supposed to include the group learning to navigate on their own and, by getting to the checkpoint early they had demonstrated they were competent to do this.  Accordingly, liability as against the school and teachers was not established.  No claim appears to have been brought against Mr Wills, who had in any event died before the hearing.

The battle against school dinners: can Leon roar its way to success?

July 6th, 2012 by Holly Stout

Another furore about school dinners.  Michael Gove has called in the healthy fast-food chain Leon to report on school dinners.  The original king of school dinners, Jamie Oliver has not greeted this as warmly as one might expect.  He says “Now is not the time for more costly reports”.  This is “time for action”, but this “doesn’t seem to be what we get from Mr Gove”.  Leon will not report until 2013.  According to Jamie, Gove is endangering pupils’ nutrition, and he has predicted that Leon’s report is “destined to be ignored”.  However, Gove thinks that Leon will take the reforms instigated by Jamie’s campaign to the next level.  Current standards are still unimpressive: half of secondary schools offer pizza daily. Read more about it click here

Welsh Consultation on SEN

July 5th, 2012 by Holly Stout

The Welsh Government has launched a consultation on reform to the SEN system – Click Here 

The proposed legislative reforms are similar to those proposed for England following the consultation last year Support and aspiration: A new approach to special educational needs and disability (click here  for the latest on that).

The Welsh Government also proposes new legislation that will 

  • give a statutory footing to the concept of additional needs (AN);
  • replace SEN statements with new integrated Individual Development Plans (IDP) for children and young people;
  • replace the framework for the assessment and planning of provision for children and young people with SEN with a simpler more person-centred system;
  • set out how integrated plans will cover those aged 0–25 years who fall within different categories of need;
  • set out the duties to be imposed on relevant bodies (such as local authorities and the NHS);
  • set out the resolution process for any disputes;
  • impose a duty on the Welsh Ministers to issue a code of practice in relation to the new statutory framework for AN; and
  • impose a duty on relevant bodies to collaborate in respect of AN provision.

 Responses to the consultation are invited by 19 October 2012.