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New local authority school finance regulations

December 13th, 2013 by Thomas Ogg

The School and Early Years Finance (England) Regulations 2013/3104 will come into force on 1 January 2014.  They concern the funding arrangements made by local authorities for maintained schools and early years provision in England for the financial year 2014-15.

The 2013 Regulations largely reflect the provisions of the 2012 version of the regulations. The system, broadly, is that the Department for Education allocates a Dedicated Schools Grant to local authorities, before local authorities distribute funding to maintained schools through a locally determined formula. Note, however, that the Explanatory Memorandum to the 2013 Regulations suggests that a consultation is expected to begin shortly on proposals for reforms to the funding system which could be introduced in 2015-16.

The noteworthy provisions of the 2013 Regulations are:

  • the minimum funding per pupil in a local authority’s funding formula must is £2,000 per primary pupil and £3,000 per secondary pupil (regulation 13(5));
  • there is a threshold of £6,000 below which schools are required to meet the additional costs of pupils with special educational needs (SEN) from their own budgets (regulation 11(3));
  • special schools must receive at least £10,000 per pupil from 1 August 2014 (regulation 14(2)), although places reserved for children with SEN do not count towards a mainstream school’s pupil numbers for the purpose of calculating its budget through the local funding formula;
  • a local authority may now take account of the sparseness of schools in its area in its funding formula (see paragraphs 14 and 15 of Schedule 3). There are also changes to the way that local authorities may take account of prior attainment, and the number of looked after pupils;

The regulations also have the effect of removing the ability of local authorities to reduce the funding for early education providers in the private, voluntary and independent sectors who admit children above a limit previously agreed with the local authority. According to the Explanatory Memorandum, this is to promote parental choice.

Thomas Ogg

Update – exclusions; LA interventions; missing education; and there’s no such thing as a free lunch…

December 9th, 2013 by Rachel Kamm

This post picks up on two recent education cases, the Ofsted report on children missing education and funding arrangements for free school meals.

Local authority powers of intervention

In Governing Body of Uplands School v Leicester City Council (29 November 2013, judgment not yet available), Mrs Justice Thirlwall dismissed all but one ground of an application for judicial review of the Council’s exercise of intervention powers under section 60 of the School Standards and Framework Act 1998. This is the first case considering the interpretation and application of those powers.

The heart of challenge concerned the lawfulness of a requirement in the warning notice that the Governing Body “engage and communicate” with the Council. The Court held that: (1) this constituted “action” for the purposes of section 60(4)(b) of the 2006 Act; (2) as a matter of statutory construction, it was not necessary for the warning notice itself to identify any earlier failure to engage and communicate; (3) the requirement was clear on its face and in its context, and the Council had provided clarification of what was required.

The Council was entitled to require the Governing Body to take action during the compliance period. Its decision that the Governing Body had failed to comply with the requirement could not be said to be irrational. On the facts of the case, for the purpose of section 60(1)(e), the Council had provided “reasonable notice” of its intention to suspend the delegated budget.

Lastly, Thirlwall J held that the Council’s decision to suspend the headteacher was unlawful. The Council had failed to comply with its clear and unambiguous promise to seek to engage with the Governing Body before taking that step. However, the court held that any such engagement would have made no difference and for that reason declined to make any order.

Clive Sheldon QC and Sean Aughey appeared for the Council; Paul Greatorex appeared for the Governing Body; and Edward Capewell appeared for the headteacher as an interested party (all of 11KBW).

Exclusions and consent orders

In SA v Camden LBC Independent Appeal Panel [2013] EWHC 3152 (Admin)  the High Court quashed the decision of an Independent Appeal Panel which had upheld the decision of the Governing Body of a maintained school to exclude a child “S”. This is an unusual case because the situation was not covered by the relevant statutory provisions nor the guidance.  S had been diagnosed with attention deficit hyperactivity disorder but did not have a statement of special educational needs. Following an alleged incident with another student outside of school, it was decided that he should be permanently excluded. His behaviour had been deteriorating and the school considered his needs to be too complex for a mainstream school to deal with. The parents and the school submitted an “agreement letter” to the panel to the effect that it should overturn the permanent exclusion on the basis that S would not be reinstated due to exceptional circumstances. The panel found that it was not bound by the agreement and that permanent exclusion was proportionate.

In these judicial review proceedings, Mrs Justice Davis quashed the panel’s decision on ground that it failed to give reasons for not giving effect to the agreement reached by the parties. The panel should, in the absence of specific guidance, have adjourned the matter and invited representations from the parties and, if necessary, sought independent advice from a qualified lawyer. No good, or even adequate, reason was provided as to why it opted not to follow an agreement that was deemed to be in the best interests of the child.

Tom Cross of 11KBW represented the Independent Appeal Panel.

Children missing education

The Ofsted report is titled “Pupils missing out on education education: Low aspirations, little access, limited achievement“.  Ofsted examined the experiences of children and young people who are not in full-time education at school. Inspectors visited 15 local authorities and 37 schools and services, undertook 97 case studies of children and young people, and interviewed leaders in a further 41 secondary schools. Inspectors found poor quality and insufficient provision for many of these young people as well as incomplete information about it at a local level. The report makes the following recommendations for local authorities:

  1.  establish a central record of all children not accessing full-time education in the usual way, including those who are accessing alternative provision full time away from mainstream school, regardless of where they are on roll; and maintain good information about the achievement and safety of any child or young person not accessing education in the usual way.
  2. identify clear lines of accountability for the quality and amount of provision, as well as the educational and social outcomes, for all children and young people of compulsory school age who do not access education in the usual way; taking note of the survey’s finding that this was most effective when a named person at a senior level was held to account for this statutory duty.
  3. share information across local authority boundaries in a timely and appropriate way to minimise interruption to a child or young person’s educational provision.
  4. ensure that every child is on the roll of a school, regardless of circumstances, unless parents have elected to educate their child at home.

Ofsted also makes recommendations for schools (including free schools and academies):

  1. with immediate effect, stop unlawful exclusions and provide suitable support for children and young people with behavioural difficulties.
  2. establish clear accountability for the achievement, safety and personal development of all children and young people who are on the school roll but not accessing school in the usual way, and for the quality and amount of provision made for them.
  3. inform the local authority of any part-time education arrangements, regardless of the type of school.
  4. keep children and young people on the school roll during periods of illness or custody (or for as long as it is relevant), in line with Government policy and guidance.
  5. respond quickly to any early signs of children and young people’s raised anxiety or dips in their progress, attendance or engagement in learning.
  6. give governors sufficient information about children and young people who are not accessing school in the usual way, so that governors can challenge the amount of provision being made and evaluate its effectiveness.

Note that Ofsted has made a recommendation to itself, that it will regard any failure by local authorities to comply with their statutory duty as a matter likely to affect the overall judgement on safeguarding.

Free school meals

The Autumn Statement included details of the funding arrangements for free school lunches for every child in reception, year 1 and year 2 in state-funded schools. Nick Clegg announced that ”The government will be providing revenue funding of £450 million in 2014 to 2015 and £635 million in 2015 to 2016 to the Department for Education (DfE) to fund this commitment. This is new money into the DfE budget. It will also make £150 million of capital available to ensure that schools can build new kitchens or increase dining capacity where necessary. £70 million of this will be new money from the Treasury (HMT) and around £80 million will be from unspent DfE maintenance budgets.

Rachel Kamm, 11KBW

Admission Appeals Arrangements (Wales)

October 29th, 2013 by James Goudie QC

The Education (Admission Appeals Arrangements) (Wales) (Amendment) Regulations 2013, SI 2013/2535 (W.250) apply to all admission appeals heard on or after 1 January 2014 in respect of decisions to admit (or not to admit) pupils to schools.  They make amendments to the Education (Admission Appeals Arrangements) (Wales) Regulations 2005 (“the 2005 Regulations”), SI 2005/1398 (W.112).   

Regulation 2 substitutes a new Regulation 6 in the 2005 Regulations.  The new Regulation provides that Appeal Panels may consider whether admission arrangements are unlawful because they do not comply with either the School Standards and Framework Act 1998 (“the 1998 Act”) , or the mandatory provisions of any School Admissions Code (issued under Section 84 of the 1998 Act).   

When a child is refused a place at school on the basis that to admit the child would breach the statutory limit on infant class size unless a relevant measure were taken to avoid that breach, Appeal Panels may uphold the appeal only on certain limited grounds.  The new Regulation 6 provides that an Appeal Panel may uphold such appeals if it is satisfied that either the child would have been offered a place if the relevant admission arrangements had been “properly implemented”, or if they had been lawful, or if the Appeal Panel is satisfied that the decision of the admission authority was unreasonable, in the sense that it was not one which a reasonable admissions authority would have made in the circumstances of the case. 

R ota Nfuni v Solihull MBC [2013] EWHC 3155

October 27th, 2013 by Peter Oldham QC

In this case the claimant was a failed asylum seeker. She had arrived in the UK at the age of 16. When she turned 18, the local authority continued to support her accommodation and education under section 23C of the Children Act 1989. This imposes after-care duties towards “former relevant children”, including by subsection (4) financial assistance in connection with education or training “to the extent that [her] welfare and [her] educational or training needs require it”.

The authority’s pathway plan for the claimant stated that she intended to apply for a university place but that her immigration status would make this difficult. She did indeed apply, but before she had been informed whether her applications had been successful, the authority gave her 1 month’s notice of termination of her accommodation funding. Her applications for a university place were then rejected, but she was offered a place on a foundation course which might lead to a university course. The authority decided that she had no educational need for such a course, given her pathway plan and her immigration status. It referred to the Court of Appeal decision in R (Kebede) v Newcastle CC [2013] 16 CCLR 388 where the Court held that the immigration status of a former relevant child was relevant to the issue of the extent of his or her welfare and educational needs.

The claimant brought judicial review proceedings, asserting that the authority was in breach of its section 23C duties.

The Court held that the pathway plan did envisage the authority supporting a university place should she obtain one, but she did not do so. At that point, she ceased to follow the pathway plan with the result that the authority’s duties under section 23C came to an end. Nor did a duty arise under section 23CA (duties to a former relevant child to whom section 23C duties are no longer owed).

Peter Oldham QC

Education (Information Sharing) Bill 2013

October 27th, 2013 by Peter Oldham QC

This private member’s bill is due for its second reading in the Commons on 29th November 2013. It was introduced by Andrew Selous MP, Conservative member for South West Bedfordshire. On his website he says that the aim of the Bill is to require or permit publication of:-

“information on which vocational qualifications, GCSEs and A levels lead to the highest and lowest earnings returns. It will mean that young people and their parents will get reliable information on which courses and qualifications are likely to lead to a job and higher earnings. Pupils, teachers and parents will be able to see the earnings premium between say doing a GCSE in chemistry as compared with one in additional science.

Schools, colleges and universities need the information the Bill will provide to assess their own effectiveness in creating routes to employment and good earnings. Critically they will really help young people and their parents to take much more informed decisions. I think this is a poverty reducing measure.

The Bill will also show the earnings potential of apprenticeships. At the moment only five per cent of students take an apprenticeship after their GCSEs and only three per cent after their A levels. I believe that this low take up is in quite large part because pupils and parents do not realize that apprenticeships are leading to some of the highest paid and most prestigious careers in the UK and abroad.”

The Bill has three operational clauses, each of them inserting a section into existing Education Acts.

Clause 1 adds a new section 253A to the Apprenticeships, Skill, Children and Learning Act 2009, allowing a person to provide “student information of a prescribed description” to the Secretary of State/Welsh Ministers, an information collator, a prescribed person, or a person falling within a prescribed category. “Student information” is information relating to an individual’s educational qualifications, but there is an express bar on the publication of information which identifies any individual. An “information collator” is defined as a body responsible for collating such information.

Clause 2 provides a new section 49B for the Further and Higher Education Act 1992. It allows SoS/Welsh Ministers to provide “destination information” to the governing body of an FE institution. “Destination information” means

“information which—
(a) relates to a former student of the institution, and
(b) includes information as to prescribed activities of the former student after leaving the institution.”

Again the information cannot identify an individual.

Clause 3 amends sections 87 and 91 of the Education and Skills Act 2008. Section 87 currently allows SoS and Welsh and Scottish Ministers to share education-related information for the purposes of certain education and training functions, but this (a) excludes information about higher education, and (b) cannot be used in connection with under 19 education functions. These limitations are removed.

Peter Oldham QC

School swimming lessons

October 26th, 2013 by Thomas Ogg

Earlier this week the Supreme Court gave judgment in Woodland v Essex County Council [2013] UKSC 66.  The case is important because it extends the circumstances in which schools and local authorities will be liable for injuries to the children in their care that are caused by negligence [28].

Factual background and proceedings below

The Claimant, Annie Wooland, was a pupil at Whitmore Junior School, for which Essex County Council was responsible.  On 5 July 2000, when she was ten years old, she participated in a swimming lesson in which she nearly drowned.  She was resuscitated, but suffered a serious brain injury.

The swimming lessons were required by the national curriculum, and had to take place during school hours.  The school had arranged for the lessons to be provided by an independent contractor, Direct Swimming Services, and they took place outside of the school premises.  None of the staff of Direct Swimming Services were employed by Essex County Council.

The Claimant’s allegation was that the staff of Direct Swimming Services negligently failed to notice that the Claimant was in difficulties in the water, and that this was the  cause of her injury.

Essex County County were alleged to be liable for this negligence because they owed the Claimant a “non-delegable duty of care”.  The Council were successful in striking out this allegation in the High Court and the Court of Appeal (Laws LJ dissenting), but the Claimant succeeded in her appeal before the Supreme Court.  Lord Sumption gave the lead judgment, and Lady Hale gave a supporting judgment.

The non-delegable duty of care

The normal duty of care owed by schools to pupils is only to take reasonable care in the performance of the functions entrusted to the school, and only to the extent that the school performs those functions itself or through its employees.

The ‘non-delegable duty of care’, however, is a duty to procure that reasonable care is taken in the performance of the school’s functions whoever the school arranges to perform those functions.  In other words, as Lord Sumption sets out at [7], this type of “duty is a positive or affirmative duty to protect a particular class of persons against a particular class of risks, and not simply a duty to refrain from acting in a way that foreseeably causes injury”.  Such a duty is a departure from the normal fault-based principles of the law of negligence, and so must arise only exceptionally [22].  The duty arises from the pre-existing relationship between the defendant and claimant [7].

The circumstances in which the duty will arise

Lord Sumption at [23] set out five defining features of the circumstances in which a non-delegable duty of care has already been found by the courts (putting aside certain aberrant classes of case):

(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.

(2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.

(3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.

(4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant’s custody or care of the claimant and the element of control that goes with it.

(5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

Lord Sumption emphasised at [24] that the ‘essential element’ of the circumstances in which such a duty will arise is “control over the claimant for the purpose of performing a function for which the defendant has assumed responsibility”.  He also stated that it would have to be fair, just and reasonable for the duty to be imposed [25].

The reasons for the Supreme Court’s decision

In addition to the reasons embodied by the principles set out by Lord Sumption above, the Supreme Court was clearly moved by the argument that it is unfair that a child who suffered injury due to negligence may, if the child attends an independent school, sue in contract; but if the child attends a state school, may only sue in tort if the tortfeasor is employed by the school [25, 30].  This was especially true given that more and more functions of state schools are now carried out by outsourced contractors [25(4)].

Limitations on the circumstances in which the duty will arise

Lord Sumption was at pains to emphasise that Woodlands does not create an open-ended liability.  It does not apply to extra-curricula activities outside school hours, or to the negligence of individuals who have not been granted control over the children (e.g. other adults on trips such as bus drivers or museum staff, in circumstances where the school staff retain control over the children) [25(3)].  For example, secondary schools are not required by the national curriculum to organise swimming lessons.  Does that mean that a non-delegable duty of care does not arise?  Or does the matter turn on whether the lessons take place during school hours or on the school site?  Some of those distinctions may prove to be rather difficult to justify, and guidance from the lower courts will no doubt be forthcoming.  In the Court of Appeal, Laws LJ in his dissenting judgment at [30] referred to the criterion being a “service which is part of the institution’s mainstream function of education”, but again, it is unclear whether the provision of swimming lessons at a secondary school would fall within that criterion or not.

Practical steps to mitigate against possible liabilities

It appears doubtful that a school will be able to acquire insurance against liability for breaches of a non-delegable duty of care committed by independent contractors (or, at any rate, for an affordable premium).

Schools should therefore consider including contractual clauses to the effect that the independent contractor indemnifies the school in respect of liabilities under the school’s non-delegable duty of care, where those liabilities arise from the negligence of the independent contractor.  An indemnity may not, however, be much help in the face of large claims such as those of Ms Woodlands (reported to be worth £3m), if the independent contractor is an individual.

It may therefore be the interests of schools to contract with much larger organisations who would be able to meet such a liability should it arise, or instead for school to ensure that independent contractors are insured to a sufficient degree such that such a large liability could be met.  This may be particularly necessary for small educational organisations such as free schools.

Schools’ duty to safeguard children who lark around

October 18th, 2013 by Paul Greatorex

If you are sitting comfortably, I’ll tell you the story of the boy who tried to punch his younger brother but instead hit a water fountain and then sued his school for damages.  Or rather I’ll tell you how the Court of Appeal told it in West Sussex County Council v Lewis Pierce [2013] EWCA Civ 1230:

“In the summer of 2010 [the claimant] was nine and half years old…[He] and his younger brother George who was seven were at the School with their mother for an after school gardening club which their mother helped to run. Whilst there the boys got into mischief. They went over to the water fountain. George sprayed the claimant with water from it and the claimant then tried to punch George, who by then, no doubt prudently, was positioned somewhere underneath the water fountain. George dodged the punch, the claimant missed him, and punched the underside of the water fountain bowl instead, sustaining a laceration to the dorsal aspect of his right thumb and associated tendon damage. The damage to the tendon was repaired shortly afterwards under general anaesthetic. Happily, the claimant subsequently made a full functional recovery. He was left with a hockey stick shaped scar of about 2.7 cm on his thumb about which according to his own medical evidence, he was completely unconcerned.”

Naturally, though, this being a 21st century story rather than something from the Brothers Grimm, the school was then sued for damages.

The water fountain looked like this:

water fountain

The manufacturer estimated that about 20% of schools in England and Wales had the same water fountain and gave evidence that there there had never been a report of any accident involving one, nor any complaint, during the period 2001-2010. Nonetheless, District Judge Gamba, having inspected its underside and pronounced it “sharp”, held that the school had not properly considered the risk of harm, not done a proper risk assessment, and awarded £3,215.16 damages.

The happy ending to this story (from the school’s point of view) came in the Court of Appeal where the decision was quashed by Lord Dyson MR, Sharp and McFarlane LJJ.

Sharp LJ said at [12] that the judge seemed to have proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the school was liable for what happened unless it had conducted a proper risk assessment.  But the real issue was “whether, as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around” [17].

In order to help answer this question, and in what may be a first for the Court of Appeal, the judges themselves also examined the water fountain.  In a conclusion that raises intriguing questions about the comparative sensibilities of the judges involved, they disagreed with District Judge Gamba and said that the underside could not be described as sharp.

The judgment goes on to say:

“But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children.  Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb . But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.”

The Court concluded by saying that “it was of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen”.

Paul Greatorex

Opening A Free School

October 15th, 2013 by admin

Webcast by Thomas Ogg on Opening a Free School.

Thomas covers;

• Status
• Governance
• Consultation
• Funding agreement

To view the webcast – click here

“Normal concerned parent” or “distinctly troublesome”?

October 4th, 2013 by Paul Greatorex

The last blog post looked at a case which considered whether behaviour by a university supervisor towards a doctoral student was unacceptable in law. This one looks at a case which concerned similar issues in a school/parent relationship.

T v Hall Schools of Wimbledon LLP [2013] EWHC 2728 (QB) (summary and transcript available on Lawtel) concerned a breach of contract claim against an independent school, but various observations about what amounts to unacceptable behaviour by parents are likely to be of general interest and may well be applicable more widely.

The claimants were parents who had placed their 3 children at the school in September 2009.  By July 2012 the relationship between the parents and the school had broken down and so the school terminated their placements.  The headteacher said this was because the parents were “distinctly troublesome”, whereas they insisted they were simply “normal concerned parents who wished for the best for their children”.

After hearing evidence from the school and the parents for 2 days, the deputy High Court judge (Jeremy Richardson QC) formed the clear view that the school was right and the parents’ claim “does not have one shred of believable evidence to support it” [74].

The school had a very clear policy about parental behaviour, reserving the right to end a placement “when the parent or guardian of that child is guilty of serious or persistent misconduct in relation to a pupil, a member of staff, another parent or to the reputation of the school.”  The judge said this was unsurprising since “schools should not, and for the most part do not, have to endure parental misconduct.” [17]

The judgment does not give full details of the misconduct but it manifested itself in the parents’ written and face-to-face communications with the school.  Their letters and emails were described variously as “voluminous”, “long and sometimes quite angry”, “very regular” and “relentless”, “usually involving complaints of one sort or another” and with “hardly a good word to be said”: see [20] and [22].  In person, the parents were described variously as “unreasonable”, “assertive”, “confrontational”, “surprisingly demanding”, with the mother screaming at staff on at least one occasion, which behaviour led to the headteacher insisting on being present at all meetings with staff: see [26].

The following findings by the judge speak for themselves:

  • The mother was “unusually obsessed by her daughter’s perceived lack of success” and “the fact she did not see anything inappropriate with the bombardment of correspondence and her total lack of self-awareness was, frankly, breath-taking.” [23]
  • “The whole tenor of [the mother's] evidence, and to a lesser extent the father, was of unwarrantably interfering parents who swamped the school with complaints and unnecessary requests as if their children were the only ones that mattered. The parents were self-absorbed and lost, if ever they possessed, any sense of proportion. Their denials of irrationality became ever less plausible as the case unfolded.” [24]
  • “[The headteacher] was moderate of manner and measured in his response. That was not my impression of the claimants who were grandiose, in particular the mother. There was a total absence of any sense of proportion or reality. They viewed everything in a self-centred, self-contained artifice as if no one else but they and their children mattered. They interfered and meddled in the school and made unwarrantable demands of the school.” [27]
  • “[M]ost if not all parents want the best for their children. That is laudable. Parents of children at fee paying schools rightly demand the best but the school must be allowed to be a school. The conduct of the claimants in this case far exceeded the worst excesses of normal concerned parents by a considerable margin. I can well believe their domineering and demanding conduct became an enduring nightmare for the school.” [28]
  • “This parental misconduct – and it was misconduct – was such a shame because, whatever else be their failings, the children are a delight and were much liked by the staff at the school. If only the parents had been sensible, restrained and interested in their children’s progress (and there was progress) instead of foolish, overbearing and demanding, events would have been, I am sure, to the advantage of all their children.” [29]
  • The claimants “were self-absorbed and blinkered as to reality and truth. They each (but Mrs T in particular) lost all sense of proportion in their dealings with the school.” [54]
  • “The parents by their deplorable conduct created a situation whereby there was a complete breakdown of trust between parents and school. They made unwarranted requests, endless complaints and made a thorough nuisance of themselves with the school. This went well beyond the realms of even the most zealous (some might call pushy) parents.” [56]
  • “The assertions by the parents against a principal of an independent school were comprehensively without foundation….To suggest a principal of a school should have agreed to cover up what he believed, indeed knew, to be the truth and for that to have become a term of a contract is, to put it mildly, farfetched.” [74]

Finally, the following paragraphs are likely to be of particular interest and application and are worth setting out in full:

“18….It must be remembered that this was a school and not a company. The primary focus was education. There were times during the cross-examination of both [the headteacher and his PA] that I felt they were being unwarrantably criticised for their absence of notes or form of notes that might have been more appropriate had they been the secretary to the cabinet or the company secretary of a large plc.

46.  [T]he idea that a school has to record every item of information and record in detail every parental conversation represents a paradigm of education in schooling which fails to represent reality. To do as suggested by [counsel for the claimants] in cross-examination is redolent of a litigation culture infecting schools and schooling whereby teachers instead of focusing upon teaching would be looking over their shoulder in case litigation should follow them in hot pursuit. That paradigm of educational practice is not reasonable and I trust is not being actively encouraged. The whole tenor of the cross-examination was presaged upon the notion of a commercial contract and a businessman doing deals, some of which they might wish to camouflage. This was, I repeat, a school dealing with distinctly awkward parents.

75.  The focus of any school should be upon the education and welfare of the children who attend. Of course, parents need to play a full role and take a keen interest in their children. All of that is right and proper. But equally parents must, and most do, appreciate a school is a community that needs to be permitted to get on with its principle task of educating children collectively. No school should be bombarded with unwarrantable demands by parents. Teaching and other staff bear a heavy responsibility in what they do. Looking over their shoulder for fear of litigious parents is an aspect of their professional lives they could all do without.”

 

Paul Greatorex

Doctoral students: when does supervision become harassment?

September 18th, 2013 by Paul Greatorex

The case of Saha v Imperial College of Science, Technology and Medicine [2013] EWHC 2438 (QB) concerned a £1.5m claim for harassment by a doctoral student against her supervisor Following a hearing that lasted 7 days, with the claimant acting in person, Hamblen J dismissed the claim in its entirety, summarising his conclusions at [160] as follows:

“I find that a number of the alleged incidents are not proven, and those that are proved do not involve harassment. At most they involve treating Miss Saha in an abrupt, peremptory and at times vexed manner. They do not involve aggressive, bullying or threatening behaviour.”

Although one always has to be careful with findings made in relation to particular facts, the judgment offers some interesting and helpful guidance on how and when the line into harassment may be crossed, both in the context of the supervisor/student relationship and possibly in other analagous relationships.  It is also of interest because of key part emails played in the complaint.

The judge said this about the lengthy email sent in June 2004 which was described by the claimant as the “primary attack”:

“74.  I accept that the aim of the email was to provide constructive criticism but the manner in which that was done was unfortunate. Although positive points were made, there were a litany of complaints expressed in a somewhat intemperate way. I recognise that Dr Soldati is Swiss and that English is not his first language and that he has a habit of liberally using exclamation marks. Nevertheless there were a number of unfortunately expressed complaints, such as “That is unacceptable”; “it is a complete shame that you have not even done that!!!”; “you prefer to sabotage that effort!!!”; “it is very bad for me and a disaster for you!”;“how do you want me to accept that?”; “Therefore, go!”.

75. As to the content of the message, many of the points made were justified, as Miss Saha acknowledged in evidence…

79. In summary, this was an inappropriately expressed email that made a litany of complaints in an overemphatic way. However, the email started and finished on positive points. It was meant to be constructive and to seek to move matters forward. It expressed Dr Soldati’s full support and invited response and discussion. It did, however, cause Miss Saha real distress.”

In his conclusions the judge found was that there were a number grounds upon which Dr Soldati’s behaviour in June 2004 could be criticised: see [161-162].  A number of his emails were expressed in an intemperate, high handed and at times accusatory tone, he was wrong about the number of hours she was putting in, and his concerns led him to make unreasonable claims and demands in relation to working hours and to proving her working presence.  Further, he was wrong to share a confidential complaint by Miss Saha with other members of the team.

There were some mitigating or contextual features: underlying the emails was a concern that Miss Saha’s PhD should be kept on track: there were real issues concerning her progress and the need for a clear work plan going forward and the complaint about working hours was made in good faith and in her perceived interests.  Nonetheless, the judge found that if Dr Soldati had continued to act in the same manner, and to insist on unreasonable demands and to ignore confidentiality issues, a course of conduct capable of constituting harassment might have been made out.

However, the judge found that he did not do so but instead took on board criticisms made of his behaviour, did not continue to insist on matters such as particular working hours or proof of work presence and did not continue to flout her confidentiality. Although he did insist on a work plan being produced, that was found to be a reasonable request and in line with Miss Saha’s MPhil transfer report.  There was little contact subsequently with no further proven incidents and very few emails, and that being so, the judge concluded as follows:

166…[T]here is simply no sufficient course of unreasonable conduct capable of constituting harassment. In any event, I find that his conduct during that summer period, whilst unreasonable and unjustified in some respects, did not cross the boundary from unreasonable and unattractive conduct into oppressive and unacceptable behaviour.

167.  In particular, at all times Dr Soldati’s prime motivation, both subjectively and objectively, was to get Miss Saha’s work on track. He repeatedly stressed this aim and his full support for her, as well as praising positive aspects of her performance. His conduct was not objectively calculated to cause alarm or distress, even if at times it did cause distress.

168.  Further, many of the matters complained of were not targeted solely at Miss Saha.  The average 10 hour day working requirement, the keeping of up to date lab books, and the need to attend more lectures and seminars were all addressed to the whole group as well as Miss Saha.

169.  The context is also important. As her supervisor Dr Soldati had an obligation to ensure that Miss Saha completed the milestones necessary to secure her PhD and was working appropriately to that end. The need properly to plan ahead was supported by her MPhil transfer report and there was a degree of urgency to ensure everything was on track because of Dr Soldati’s imminent departure to Geneva.”

Paul Greatorex