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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

Teacher bans and Free Schools

February 9th, 2014 by Thomas Ogg

More on teacher bans

On Friday, the Department for Education began a consultation on new regulations regarding the banning of individuals from participation in the management of independent schools, including academies and Free Schools.  The consultation page is here, and remains open until 10 April 2014.

The consultation document states that the regulations are to be made because the current banning regime under section 142 of the Education Act 2002 makes “inadequate provision” in respect of the need to “uphold high standards of behaviour expected of members of the teaching profession” and to “to protect schools and the education service generally from fraud or deception“.

The DfE prefer, therefore, to rely on their powers under section 128 of the Education and Skills Act 2008 (which appear to be partially in force already).  The consultation document states that the DfE intend to use the new regulations against individuals with extremist views, and in respect of “Egregious Conduct and Professional Misconduct” that falls short of criminal conduct.

The regulations are to be made as part of a wider package of reforms, including the commencement of other sections concerning independent schools in the Education and Skills Act 2008 (replacing those under the Education Act 2002), and revisions to the Independent School Standards.

For details of the teacher banning regime generally, see this blogpost.  For an example of a recent prohibition case, see here.

Free Schools

You may be interested in this article in this article, published in Counsel magazine last year on Free Schools: “Opening a Free School: the Legal Pifalls”.

Thomas Ogg

Staff restructuring and efficiency savings

February 7th, 2014 by James Goudie QC

In  Hazel and Huggins v Manchester College [2014] EWCA Civ 72 the Court of Appeal has dismissed the College’s appeal against a majority Employment Tribunal decision that the dismissals of two lecturers at HMP Elmley in Kent, Mrs Hazel and Mrs Huggins (“H&H”) were not for an “economic technical or organisational” (ETO) reason that entailed a change in the workforce, but were because they refused to agree to new, reduced terms, and this was connected to a TUPE transfer, making their dismissals automatically unfair.  Regulation 7 of TUPE provides that where, either before or after a “relevant transfer”, any employee (of the transferor or transferee employer) is dismissed, that employee shall be treated, for unfair dismissal purposes, as unfairly dismissed if the sole or principal reason for dismissal is the transfer itself  or “a reason connected with the transfer” that is not an ETO reason “entailing changes in the workforce”.

The College is a provider of further and higher education courses and vocational skills-based training. Among other things it provides offender learning in prisons. In 2009 it successfully bid for contracts to provide services in six regions of the Prison Service. In August 2009 it took over, under TUPE, the employment contracts of about 1,500 staff, including H&H,  in addition to about 2,000 already employed in offender learning and about 3,000 in the rest of the organisation.

A few months later the College’s Board agreed to a package of proposals set out in two reports from its Principal for what were described as “staff restructuring and efficiency savings” and “contract change for Offender Learning and other related staff’. The impetus for the proposals came from a number of factors. The general economic situation facing the further education sector was challenging.  There had also been changes in the funding allocation machinery.  Moreover, there were particular problems in Offender Learning.  Hidden costs had been encountered following the bid. In addition, employees in Offender Learning were on very disparate terms and conditions of employment, as a result of the College having built up this part of the business by absorbing a large number of different entities whose staff brought their previous terms with them.  Apparently they had to deal with no fewer than 37 sets of terms. Such a state of affairs was plainly very undesirable from the point of view both of effective management and of staff relations.  There was no doubt also a risk of equal pay claims. The total costs saving which it was planned to achieve from all aspects of the package was £5million.

Against this background, the package had a number of different elements.  These includedg redundancies and other restructuring of roles, efficiency savings, and the proposed standardisation of contractual terms, including a single pay-scale for all staff in Offender Learning. The number of potential redundancies notified to the DWP was 300. As regards the changes in terms and conditions, the plan was to ask staff to sign new contracts of employment.  If they did not agree they would be dismissed and offered re-engagement on the new terms.  The various elements in the package were in practice inter-related. The College made the point in the course of the process that the introduction of the standard terms and conditions which it was offering would produce costs savings which would reduce the number of redundancies required.

The process of implementation of the proposals was complex. It required much negotiation and consultation both with the University and College Union and with individual employees. H&H were initially warned that they were at risk of redundancy or a reduction in contractual hours, but in due course it became clear that they would retain their existing jobs. Both were sent letters explaining the new terms being offered and enclosing contracts for their signature. It was explained that they were at risk of dismissal if they did not sign. The proposed salaries were 18.5% less than the current level for Mrs Hazel and 13.2% less for Mrs Huggins, though there would be a one-year period of protected pay. That was not acceptable to either of them. There was a period of further consultation, during which they in due course confirmed that they would agree to all the proposed changes except those affecting pay. Eventually they were sent notices of dismissal, but before those took effect they accepted the new terms, albeit under protest and expressly “without prejudice”. On that basis they continued to work for the College, but they were paid only at the reduced level. They then brought their proceedings in the Employment Tribunal complaining that they had been unfairly dismissed.

Underhill LJ said (para 22) that in a case where Regulation 7 of TUPE, and, more particularly “the ETO defence” is in play, three questions (the last with two sub-questions) arise: (1) What is the reason, or principal reason for the employee’s dismissal? (2) Is that reason the TUPE transfer itself, in which case the dismissal will be automatically unfair, or a reason “connected with the transfer” or neither? (3) If it is “connected with the transfer”, (i) is the reason ETO and (ii) does it “entail changes in the workforce”?

As to the second question, it was common ground that the dismissals were connected with the TUPE transfer.  The Court concluded that the answer to the first question was that the reason for their dismissals was that H&H had refused to agree to the new pay terms, and that the answer to the third question followed (as will generally be the case) from the first, namely that the refusal to agree to new terms and conditions was not a reason which entailed changes in the workforce, applying the Court of Appeal decision in Berriman v Delabole Slate Ltd [1985] ICR 546.

The College had argued with respect to the first question that the reason for the dismissals was the entirety of the package of proposals agreed by the College’s Board and that the package incorporated proposed redundancies that did “entail changes in the workforce”.  The Court of Appeal accepted that the proposed harmonisation of terms was “in a general sense” related to the proposal for redundancies. They were adopted as part of the same package of proposals. Both were intended to contribute to the required costs savings.  The achievement of the standardisation of terms would reduce the number of redundancies needed.

However, said Underhill LJ (para 23) “the fact that there was a relationship of this kind has no bearing on the statutory question” of what was the reason for the dismissals.  It is trite law that what matters is the factors that operate on the employer’s mind as to cause him to dismiss the employees.  The College’s need for redundancies played no part in its reason for giving H&H notices of dismissal.  Their dismissals had nothing to do with the other elements of the package or the fact that some other employees had been, or were proposed to be, made redundant.  The Employment Tribunal had adopted the correct approach and had been entitled to find as a matter of fact that in the sequence of events the principal, indeed the only, reason why H&H were dismissed was that they had refused to agree to the new terms of pay.

James Goudie QC