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Publication of the SEND Code and announcement of funding for Councils

June 11th, 2014 by Rachel Kamm

The Government has published the Special educational needs and disability code of practice: 0 to 25 years. Subject to obtaining Parliamentary approval, it will apply from 1 September 2014 (when the majority of Part 3 of the Children and Families Act 2014 comes into force).

Alongside the Code, the Government has published a note setting out its intentions for the transitional arrangements and (recently updated) implementation guidance for local authorities and health partners.

The DfE today announced that Councils will receive £45m in funding to prepare for the new SEN regime.

Rachel Kamm, 11KBW

Update on DfE publications

May 24th, 2014 by Rachel Kamm

This has been a busy month for DfE already, including new guidance and consultations in the following areas:


  • guidance for admissions to free schools;
  • guidance for the admission of summer-born children to maintained schools;
  • guidance for admission authorities managing the admission of previously looked-after children, as set out in the School Admissions Code; and
  • information and data on free schools applications per place for September 2014.


SEN and medical conditions

  • Statistics on SEN as at January 2013, including England information on primary type of need by age, gender, ethnicity, free school meal eligibility, national curriculum year group, first language and also information on secondary type of need; and
  • proposed text for guidance that will be issued under section 100 of the Children and Families Act 2014 (duty to make arrangements for pupils with medical conditions, which comes into force on 1 September).

School transport:

  • consultation until 3 June on new home-school transport guidance, which is intended to reduce prescription and allow greater freedoms for local authorities to develop transport policies that meet the needs of their areas.

Maintained schools causing concern

  • statutory guidance for local authorities when dealing with any maintained schools causing concern.

Schools funding

  • initial application guidelines for a second phase of the Priority School Building Programme, valued at around £2 billion, and due to run from 2015-2021;
  • Capital allocations for 2014-15, covering capital maintenance and devolved formula capital (DFC) allocations;
  • statutory guidance for schools and local authorities on what happens to a surplus or deficit balance when converting to academy status.
  • consultation until 2 June on proposals for converting non-recoupment academies to recoupment academies from the financial year ending 2016, which is intended to simplify the administration of academies funding; and
  • consultation until 19 June on how to implement reductions to the Education Services Grant by around £200 in 2015-16, as announced in the 2013 Spending Review.

Rachel Kamm, 11KBW

Revision of the ‘SEND code of practice: 0 to 25 years’

May 3rd, 2014 by Rachel Kamm

If anyone is short of things to do over the bank holiday weekend, there are still a few days left in which to respond to the DfE’s second consultation on its Draft special educational needs and disability code of practice: 0 to 25 years. The deadline is 5pm on 6 May 2014.

 Rachel Kamm, 11KBW

Section 9 “public expenditure” is that of any public body says Court of Appeal

April 3rd, 2014 by Paul Greatorex

The Court of Appeal has just given judgment in the case of Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398 reversing the decision of the Upper Tribunal which I covered in a blog post last September.

The UT had held that “public expenditure” in section 9 of the Education Act 1996 meant only expenditure from the relevant local authority’s education budget.  The Court of Appeal allowed the parent’s appeal and held that it means any expenditure incurred by any public body, as opposed to any private expenditure incurred by a private body.

The Master of the Rolls (Lord Dyson), with whom Pitchford and Rafferty LJJ agreed, held that this was the natural meaning of the words and such an interpretation does not give rise to difficulties which are so serious as to make the statutory provision unworkable or impracticable.

Although as Dyson J he had come to the opposite view in C v Special Educational Needs Tribunal [1997] ELR 390, largely on the basis of the difficulties in obtaining relevant information that such an interpretation would impose, he said that point had been dealt with convincingly in the case of O v Lewisham [2007] EWHC 2139 (Admin).  To summarise, the two answers given there were:

  1. section 322 of the 1996 Act which (in its current form) enables a local authority to call for assistance from another local authority, the National Health Service Commissioning Board, a clinical commissioning group or a Local Health Board, and
  2. the likelihood that these bodies would be eager to cooperate rather than reluctant because of the possibility that their budget will be relieved.

The position in practice of course remains to be seen, but the Court of Appeal also pointed out that section 9 does not impose a duty to act in accordance with parental wishes but merely lays down a general principle to which regard must be had.  It emphasised that it leaves it open to the local authority to have regard to other things as well and also to make exceptions to the general principle if it thinks it fit to do so.  An indirect effect on a ring-fenced education budget (something the UT had relied upon as a reason for the narrower interpretation) was given as an example of an “other thing” that might justify a refusal to accede to the parental preference.

Paul Greatorex


Faith schools banned from redacting evolution questions

March 31st, 2014 by Rachel Kamm

Ofqual has issued a statement today on whether schools can redact examination papers:

“We have today written to all awarding organisations to set out our position on the redaction, or blacking out, of certain exam paper questions.  This position has been supported by the relevant exam boards.

“Having looked into the issue, we concluded that while the practice was very rare, it should not be allowed.  Denying learners access to all the questions on a paper prevents the candidate achieving their full potential and therefore disadvantages them. It also threatens the validity of the qualification.

“If awarding organisations suspect that schools or centres are redacting exam papers in the future we would expect them to act in the same way as they would for any other case of malpractice.”

TES reported today that:

” OCR, the board involved, had previously said the most reasonable approach was to “come to an agreement” with schools out of need to respect religious beliefs. But today, it also published a statement clarifying its position, saying: “We have now been able to consider our position and have concluded that as a matter of policy schools should not be permitted to tamper with question papers prior to a student sitting an exam.””

This follows recent media interest on the issue, including that Yesodey Hatorah Senior Girls’ School (an Orthodox Jewish institution in Hackney, east London) had blocked out questions about evolution on 52 test papers in two separate exams last year.

Ofqual’s statement applies equally to faith schools and non-faith schools; it prohibits redactions of  questions on any ground.

Rachel Kamm, 11KBW

Education (Wales) Bill 2013

March 27th, 2014 by Rachel Kamm

The Bill was agreed by the Assembly on 25 March 2014. As set out in clause 1:

Part 2 makes provision about—

(a) the reform of the General Teaching Council for Wales and its renaming as the Education Workforce Council;

(b) the registration of certain persons who educate children and young people;

(c) the regulation of registered persons, including—

(i) the obligation of registered persons to comply with a code specifying the
standards of professional conduct and practice;
(ii) the action that can be taken against a registered person;

(d) the sharing of information about registered persons.

Part 3 makes provision about—

(a) the fixing of term and holiday dates for schools in Wales;

(b) the times of school sessions;

(c) the appointment of persons to Her Majesty’s Inspectorate of Education in Wales;

(d) education functions of local authorities which, by virtue of section 25 or 26 of the School Standards and Organisation (Wales) Act 2013, are to be treated for all purposes as exercisable by persons directed by the Welsh Ministers.

In future, Welsh local authorities will fix the term dates for community, voluntary controlled and community special schools and also maintained nursery schools. Governing bodies of foundation and voluntary aided schools will fix their own term dates. The local authority will have a duty to co-operate and co-ordinate with governing bodies and other local authorities to ensure that the term dates determined are the same (or as similar as can be) for every maintained school in Wales. The Welsh Ministers will have the power to direct local authorities and governing bodies about term dates.

As for the timing of school sessions, this will be the responsibility of governing bodies. However, Welsh local authorities will have the power to give notice if the local authority considers it necessary or expedient to change the school session times in order to promote the use of sustainable modes of travel or to  improve the effectiveness or efficiency of travel arrangements made, or to be made, by the authority under that Measure.

Note that when introduced, the Bill also contained provisions relating to:

  • the reform of the registration and approval of independent schools in respect of special educational need; and
  • post-16 assessment of educational and training needs and specialist Further Education (FE).

These SEN provisions were removed from the Bill during Stage 2 proceedings.

The Bill is now in the four week period of intimation (26 March – 22 April 2014). During this period:

  • the Counsel General or the Attorney General may refer to the Supreme Court the question whether it is within the Assembly’s legislative competence;
  • the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent.

As we’ve previously commented on this blog, the Welsh introduction of uniform term dates contrasts with the English move in the other direction. The Deregulation Bill, which is currently in the Commons debate stage, includes in Schedule 15 an amendment to give governing bodies responsibility for fixing term dates.

Rachel Kamm, 11KBW

Academy and Free School Presumption: DfE Guidance

March 9th, 2014 by Thomas Ogg

The Department for Education has issued new guidance entitled The academy/free school presumption: Departmental advice for local authorities and new school proposers.  

The (short) guidance available here, and should be of interest to local authorities and new school proposers.

The guidance addresses the so-called ‘free school presumption’ under section 6A of the Education and Inspections Act 2006 (inserted by paragraph 2 of Schedule 11 to the Education Act 2011).  It addresses the local authority consultation; impact assessments; seeking proposals; funding arrangements; the assessment of proposals; and the involvement of the Department of Education in the process.

Thomas Ogg

Fair deal

March 5th, 2014 by James Goudie QC

The Teachers’ Pensions (Amendment) Regulations 2014, SI 2014/424, amend the Teachers’ Pensions Regulations 2010, SI 2010/990, as previously amended, which govern the Teachers’ Pension Scheme (“the TPS”).  The 2014 amendments facilitate the implementation of the new Fair Deal – a non-statutory policy issued by HM Treasury in October 2013 (and provide for the third and final year of increased employee contribution rates, as recommended by Lord Hutton as part of his review into the affordability and sustainability of public sector pension schemes).   Amendments are made to existing arrangements to allow for access to the TPS for a new type of employee.  

Regulations 3 to 7 amend the 2010 Regulations so as to implement new Fair Deal.  Access to the TPS is expanded to allow a previously excluded type of employee (one who has been out-sourced from the public sector to an independent provider delivering public services) to retain their membership of the scheme.  Individual members continue to have access to the TPS while they remain employed on the out-sourced contract, and their access will continue following any subsequent compulsory transfers, so long as it is in respect of that same public service contract.

Education Law for Local Authorities in the Age of Academies

February 26th, 2014 by Tim Kerr QC

Tim Kerr QC delivered this paper at the Eighth 11KBW & Winckworth Sherwood Joint Local Authority Seminar on 24th February 2014.

To read Tim’s paper click here

Student exemption from council tax and another banned teacher

February 24th, 2014 by Paul Greatorex

Two recent cases are covered in this post.

The first concerns the exemption from Council tax for students: to qualify for this you need to be a “full-time” student, as defined in Sch 1, para 4(1)(b) of the Local Government Finance Act 1992.  This requires, amongst other things, enrollment on a course of at least 24 weeks’ study per year at an average of at least 21 hours per week.  The claimant in R (Steven Earl) v Winchester City Council [2014] EWHC 195 (Admin) had enrolled on a full-time, two-year course of education but spent the second year re-taking a double module from his first-year which he had failed, following which (in his third year) he completed the second year of the course.  Unlike the first and third years which did amount to full-time study, his second year required just 3 hours of lectures and had a recommended study period of 10 hours per week.  The University regarded him as a full-time student throughout but the parties agreed this was not determinative.

Thirlwall J held that he was not entitled to the statutory exemption during his second year because during that year he was enrolled to undertake a course of education which would lead him to complete the double module only.  You can read the decision here.

The second case follows on from the previous post by Tom Ogg and concerns another prohibition order made by the Secretary of State for Education banning a teacher from teaching: Adam Walker v Secretary of State for Education [2014] EWHC 267 (Admin).  The claimant had received a suspended prison sentence of 18 months for various offences arising out of an incident in which he had behaved in a threatening manner towards three children. The recommendation from the professional conduct panel was a prohibition order with a review after 2 years but the decision by the Secretary of State was to impose a prohibition order without any possibility of review.

HHJ Clive Heaton QC (sitting as a deputy High Court judge) was “wholly unpersuaded” by any of the arguments advance by the Appellant (who was representing himself) and, holding that the Secretary of State has a “wide ambit of discretion in respect of such decisions” [44], dismissed the appeal.  The judgment is available here.

Paul Greatorex