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Parents who lose objectivity

August 28th, 2014 by Paul Greatorex

It is not often that private law disputes between schools and parents are pursued to trial and judgment in the High Court, but St Christopher School (Letchworth) Ltd v Schymanski and Rao [2014] EWHC 2573 (QB) is one of those cases.

The claimant is an independent school for children aged 3-18, notable amongst other things for its vegetarian diet and “first names” policy for pupils addressing teachers.  It sued for £23,231.10 in unpaid fees in respect of the defendants’ three boys; the parents counter-claimed making 21 allegations of breach of contract, consisting of a wide range of alleged failings with regard to their sons’ education, physical safety and emotional well-being.  One of these was an allegation of racist bullying, although as Holroyde J observed at [246], “by the time of the Parents’ closing submissions, allegations of racial discrimination formed a core part of the Parents’ case”.

The parents had been legally represented for a significant part of the proceedings but represented themselves at the trial which lasted 9 days; the judgment handed down at the end of July runs to 271 paragraphs over 68 pages.  Dismissing all of the parents’ allegations and finding for the school in every respect, Holroyde J:

  1. upheld the school’s claim for unpaid fees and dismissed the parents’ counterclaim [233-253]
  2. said that even if there had been a breach of contract the parents failed to prove this caused the loss and damage claimed [254]
  3. ordered the parents to pay indemnity costs and interest at 10.5% from the date of the school’s Part 36 offer in 2011 (which the school beat) [259-264]
  4. lifted the anonymity order made earlier in the proceedings [265-269], and
  5. refused permission to appeal [270].

Concluding a series of findings which bear a striking similarity to those made in a case I blogged about last year, Holroyde J said that the parents had lost all objectivity and continued at [247]:

“That loss of objectivity has in my view been a prominent feature of the trial. The unhappy reality of the case, in my judgment, is that the Parents have on many occasions come to the view that one or more of the Boys was in some way unhappy or underperforming and have simply assumed that the cause must lie in an unspecified fault on the part of the School. They have either made no enquiry of the Boys, or have contented themselves with an uncritical acceptance of anything said by the Boys even when contradicted by members of the School’s staff, and they have been very ready to make unfair and hurtful allegations against anyone who contradicted their views. It is natural, and commendable, for them to want the best for their sons. I am afraid, however, that they have lost objectivity to such an extent that they would not give the School, or any member of staff, any credit for anything, and would criticise the School whatever action it took or did not take. They have criticised the School for invoking a formal complaints procedure when the Parents did not seek it, but I have no doubt that any further attempts by the School at informal resolution would simply have been met with different criticisms. As the trial progressed, I came increasingly to the conclusion that the Parents simply wanted all matters relating to the Boys to be dealt with exactly as the Parents wished, and would criticise any action taken by the School which did not conform to the Parents’ wishes. At no point throughout the trial did either Parent acknowledge, still less applaud, the many hours which members of staff devoted to speaking to them and corresponding with them. Similarly, when Hertfordshire CSF disagreed with their criticisms of the School, the Parents were equally quick to make serious allegations of collusion against that authority.”

Lifting the anonymity order was justified as follows:

“[T]here is in my view a strong public interest in the media being able to publish accurate reports of these proceedings. I have found that the Parents have made and pursued serious allegations against the School, and against individual members of staff, which were without foundation. I am told that the allegations of racist bullying have been reported in the press, and are therefore likely to have been seen by parents of pupils and prospective pupils of the School. In those circumstances, there is in my judgment a strong public interest in the outcome of these proceedings being known, since otherwise the School and individual member of staff may wrongly and unfairly be thought to have behaved in a reprehensible manner. In my judgment, that public interest substantially outweighs the need to protect the Boys against possible embarrassment. In those circumstances, despite my sympathy for the position of the Boys, it is in my judgment appropriate for me to discharge the order.”

The judgment can be read here.

Paul Greatorex

New case on eligibility for student loans

August 7th, 2014 by Rachel Kamm

The High Court has recently considered human rights issues engaged by the eligibility rules for student loans. Mr Justice Hayden considered the issues on 17 July 2014 in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company [2014] EWHC 2452 (Admin)The claimant challenged the Secretary of State’s policy under which she was ineligible for a student loan. She was  a Zambian national who had been granted discretionary leave to remain until 2015. She applied for and was granted a university place. However, her application for a student loan was refused on the basis that she was ineligible, under Part 2 of Schedule 1 to the Education (Student Support) Regulations 2011 because she had not been ordinarily resident in the UK throughout the three-year period preceding the first day of the academic year of her course. Whilst she had been living in the UK, indefinite leave to remain (rather than discretionary leave to remain) has been required to establish eligibility since 9 February 2011  (with a limited number of exceptions, which did not apply to the claimant). The claimant contended that this blanket exclusion was: 

  1. a disproportionate interference with her right of access to education under Protocol 1 art.2 ECHR; and
  2. discrimination on grounds of her immigration status, linked to her national origin, contrary to art.14 ECHR

because it did not take into account the strength of her connection with the UK and her real prospect of being granting indefinite leave to remain in future. It was common ground that education was a right that enjoyed direct protection under ECHR, being expressly enshrined in Protocol 1, art.2. Higher education was capable of falling within the ambit of that right, as was eligibility for financial support for higher education. It was common ground that the objective of husbanding limited funds to afford priority to individuals who were likely to remain in the UK in order to complete their education and benefit the UK economy was a legitimate aim. A Member State’s margin of appreciation in that domain increased with the tier of education concerned, so that a wider margin would be afforded at university level than at primary level, where schooling concerned basic literacy and numeracy. Mr Justice Hayden found that by excluding the claimant from eligibility for a student loan, she was deprived of  the opportunity to fulfil her promise, which would have an impact on her dignity and also would impact on social cohesion (because it would strike her peers as arbitrary and unfair that her talents, personal experiences and perspectives had not been harnessed to best effect). Whether considering Protocol 1, art.2 or art.14 ECHR, very careful scrutiny was required in order to evaluate whether interference with those rights was proportionate to a legitimate aim. He considered the Equality Impact Assessments (which post-dated the changes to the eligibility for student loans) and concluded that the Secretary of State’s policy gave no real consideration to the detrimental impact of a potentially significant period of delay in accessing higher education for those who had no alternative source of funding. There had been no real engagement by the Secretary of State in a justification of the rationality or proportionality of the blanket exclusion. The mere saving of costs could not justify discrimination. For these reasons, the blanket exclusion was unlawful and the claimant’s claim succeeded.  The Secretary of State has appealed and the Court of Appeal heard the appeal in late July.  Judgment is awaited.

Rachel Kamm, 11KBW

Consultations and publications

July 31st, 2014 by Rachel Kamm

Here is a quick overview of some of the recent consultations and publications in the education field. There’s a fair amount happening, even though it’s the summer, partly because the new SEN regime starts in fewer than five weeks.

On the SEN front, the 282 page Code was approved by Parliament on 29 July 2014 and comes into effect on 1 September 2014. The updated transitional guidance is available here. The Department also has updated its implementation guidance documents. Alongside this, there is new statutory guidance specifying performance attainment targets (P scales) and performance descriptors for pupils aged 5 to 16 with SEN who cannot access the national curriculum.

There are also changes afoot for admissions law. The Department has published a consultation paper on Changes to the School Admissions Code, with a closing date of 29 September 2014. The executive summary describes the proposed changes as follows:

“two main changes which would allow: 

    • all state-funded schools to give priority in their admission arrangements to children eligible for pupil premium or service premium funding; 
    • admission authorities of primary schools to give priority in their admission arrangements to children eligible for the early years pupil premium, pupil premium or service premium who attend a nursery which is part of the school.” 

“minor changes which would: 

    • revise the timetable for admission arrangements to: bring forward dates for admission authorities to consult locally on their arrangements (and reduce the length of the consultation from 8 to 6 weeks); and 
    • require admission authorities to amend their admission arrangements to comply with the Code within two months of a decision of the Schools Adjudicator, where the Adjudicator rules the arrangements are unlawful. 
    • clarify the provisions relating to the admission of summer born children to aid decision-making; 
    • make clear that the highest priority for admission applies to all children who have been adopted from local authority care.”

Turning to funding issues, there are a number of documents about schools funding arrangements for 2015 to 2016, including how the Department for Education (DfE) will allocate an additional £390 million to increase the per-pupil funding of the least fairly funded local authority (LA) areas in England. Fairer schools funding: arrangements for 2015 to 2016 “describes how funding will be allocated by setting minimum funding levels that every LA will attract for their pupils and schools. It also sets out arrangements for simplifying the administration of academies funding and minor changes to high needs funding and the way schools contribute to the carbon reduction commitment“. Local authority schools block units of funding 2015 to 2016 confirms each LA’s schools block unit of funding for 2015 to 2016 and there is an accompanying technical note and operational guide. The Government also announced additional funding for music education and funding to stretch the brightest children (by protecting formula protection funding for providers delivering successful large programmes).

In other news, there is new statutory guidance for local authorities on Home to school travel and transport guidance. The main points are described as follows:

  • There has been no change to school transport legislation and the associated duties continue to rest with local authorities.
  • With the widening of the academies programme, the introduction of the free schools programme, and all schools now having the power to decide their session times, there will be an increasing need for local stakeholders to work together in partnership to agree and deliver transport policies that meet the particular needs of their area.
  • The guidance on appeals has changed and is intended to ensure greater consistency in approach and to be clearer and more transparent for both parents and local authorities.
  • The policy for post 16 transport is different from that for compulsory school aged children (5-16). See the separate Departmental guidance for post-16 transport.
  • Local authorities should review travel policies, arrangements and contracts regularly to ensure best value for money is achieved.”

Finally, there is new Departmental guidance giving advice for handling strike action in schools. In summary:

  • It provides advice on keeping schools open on strike days, and explains the law on trade disputes and picketing.
  • In the event of strike action at a school, the Department for Education expects the headteacher to take all reasonable steps to keep the school open for as many pupils as possible.
  • The decision to open, partially open, or close a maintained school is for the headteacher. The decision for academies rests with the academy trust, but is usually delegated to the principal.
  • It is best practice for headteachers to consult governors, parents and the Local Authority, academy trust or diocesan representative (where appropriate) before deciding whether to close. Headteachers are entitled to ask staff whether they intend to strike.

Hopefully that’s enough to keep everyone out of mischief over the summer months…

Rachel Kamm, 11KBW

 

Grounds for prohibiting individuals from participating in school management

July 25th, 2014 by Thomas Ogg

The Department for Education has published the Independent Educational Provision in England (Prohibition on Participation in Management) Regulations 2014, which set out the grounds on which a person may be prohibited from participating in the management of an independent school (including a free school or academy) under section 128 of the Education and Skills Act 2008, and the related procedures.

For the details of the regime generally see here.

The grounds on which a person may be prohibited are set out by regulation 2(1):

(a) the person—

(i) has been convicted of a relevant offence;

(ii) has been given a caution in respect of a relevant offence;

(iii) is subject to a relevant finding in respect of a relevant offence; or

(iv) has engaged in relevant conduct; and

(b) because of that conviction, caution, finding or conduct, the appropriate authority considers that the person is unsuitable to take part in the management of an independent school.

Note that “relevant conduct” includes, by regulation 2(5), conduct that:

(a) is aimed at undermining the fundamental British values of democracy, the rule of law, individual liberty, and mutual respect and tolerance of those with different faiths and beliefs;

(b) has been found to be in breach of professional standards by a professional body; or

(c) is so inappropriate that, in the opinion of the appropriate authority, it makes a person unsuitable to take part in the management of an independent school.

Finally, regulation 2(6) provides that spent convictions (with certain exceptions) may be considered.

Whilst the grounds above are broad, they are similar to the grounds open to the regulators of other industries, such as the Financial Conduct Authority.  In effect, they provide a broad discretion to the Secretary of State to prohibit individuals from taking part in the management of independent schools.  The powers are brought into force on 1 September 2014.

Thomas Ogg

School exclusions: the first judicial review under the new regime

July 25th, 2014 by Thomas Ogg

Introduction

R(CR) v Independent Review Panel of the London Borough of Lambeth [2014] EWHC 2461 (Admin) (available only on Lexis Nexis currently) is the first judicial review of a case arising from the new school exclusions regime introduced by the Education Act 2011.  The facts of the case are not of particular note in themselves – as Collins J noted, it was “in many ways a most unfortunate case (indeed all exclusion cases are)” (para 2).  However, the judge makes a number of useful observations on the practice and procedure relating to the new exclusions regime.

 

Grounds of judicial review that may be considered by an IRP

An Independent Review Panel (“IRP”) has the power to review the decision of a ‘responsible body’ to uphold a head teacher’s decision to permanently exclude a pupil (‘responsible body’ usually means a school’s governing body).  The IRP’s powers of review are set out by section 51A(4) of the Education Act 2002:

(4) On an application by virtue of subsection (3)(c), the review panel may—

(a) uphold the decision of the responsible body,

(b) recommend that the responsible body reconsiders the matter, or

(c) if it considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision of the responsible body and direct the responsible body to reconsider the matter.

The requirement that the IRP apply “the principles applicable on an application for judicial review” has caused headaches for schools, local authorities and excluded pupils up and down the country.  What does it really mean in practice?  Does an IRP seriously have to consider all possible grounds of judicial review, as the High Court does?  In CR, Collins J provides some guidance.

The Judge began his consideration of the new exclusions regime by reference to the guidance issued by the Secretary of State pursuant to section 51A(8)(b) of the Education Act 2002 (the “Exclusions Guidance”).  Paragraphs 28 and 29 of CR concern the way in which an IRP may consider evidence that was not before the responsible body (i.e. new evidence).  The Judge explained that the Exclusions Guidance states that an IRP can only consider whether a school’s decision was flawed (and so should be quashed by means of a direction) by reference to the evidence that was or ought to have been available to the IRP if it had acted reasonably.  However, the IRP may consider new evidence for the purposes of considering whether to recommend (rather than direct) that the school reconsider its decision.  Collins J then commented at paragraphs 30 and 31:

So far as it goes, that is a statement of the requirements of judicial review which is often given in text books, but it is not necessarily entirely up to date because there are circumstances where error of fact can give rise to a judicial review remedy.  The precise circumstances in which that can occur are not always easy to spell out as a general principle.  Much depends upon the facts of an individual case. 

Nevertheless, the approach in the guidance is one that is not prima facie unlawful, but it may be that it is less than entirely appropriate if every eventuality was to be covered. 

In other words, it appears that a material error of fact giving rise to unfairness (see E v Secretary of State for the Home Department [2004] EWCA Civ 49) is a ground on which an IRP may quash the decision of a responsible body (and other similar grounds surely also lie).  Not every eventuality is covered by the Exclusions Guidance.  Collins J then commented at paragraph 32 of the judgment:

I am bound to say that it is difficult to see that it is entirely satisfactory for what is a lay body to be required to apply judicial review principles in the decision that they have to make.  However, that is what Parliament has required and that is what has, so far as possible, to be applied.

The Judge then sets out paragraphs 148 to 150 of the Exclusions Guidance, which provides what might be termed a ‘super-concise guide’ to the substantive grounds of judicial review.  The grounds of illegality, irrationality and procedural impropriety are surveyed over some 216 words.  By way of contrast, the leading text book on judicial review (co-authored by Jonathan Moffett and Andrew Sharland of this parish) is some 1056 pages in length.  Is the 216 words enough for the IRP to consider, or will the 1056 pages potentially be relevant?  Collins J provides further clues at paragraph 34 of the judgment in his commentary on the ‘super-concise guide’ to judicial review principles set out in the Exclusions Guidance:

So far as irrationality is concerned, the guidance omits that part of irrationality, which is not a very good word to govern this particular aspect: namely, a failure to have regard to material consideration, or having regard to an immaterial consideration.  That is, as I say, an ingredient of what is regarded as irrationality in judicial review terms.

The answer, it would seem, is that “the principles applicable on judicial review” (s.51A(4)(c)) means exactly what it says: all the grounds of review are in play at the IRP stage, in the same way as they are before the High Court.  It does not matter that a particular ground of judicial review is not explicitly set out in the Exclusions Guidance. As the Judge puts it later in the judgment at paragraph 71, so far as the IRP’s powers of review are concerned, “the normal rules of judicial review will apply”. This is, perhaps, not surprising given the wording of the statute, but in setting it out in such stark terms it lays bare the challenge of the job that Parliament has given to IRPs.

I should emphasise that strictly speaking, Collins J’s comments are obiter.  He did not have to consider whether IRPs must consider grounds of review not explicitly referred to the Exclusions Guidance.  There are, furthermore, aspects of the judgment that may provide wriggle-room for the courts in future cases, such as the words “that is what has, so far as possible, to be applied” (paragraph 32 of the judgment) and see further the below (“slightly different situation”).  Nevertheless, it would seem sensible for all those involved in exclusions to assume that all grounds of judicial review may be relied upon before the IRP.

 

Procedure

The Judge in CR also makes a number of useful observations as to the applicable procedure for IRPs and responsible bodies.

First, the Judge dealt with a submission by the local authority that the second appeal approach should be applied to judicial reviews of IRP decisions – i.e. that a decision of an IRP could only be reviewed by the High Court on the grounds that there was an important point of principle or practice or some other compelling reason for the IRP’s decision to be reviewed.  Collins J held as follows:

There was a suggestion made in the skeleton argument produced by Mr Auburn that since this was judicial review of a body, which itself was acting on judicial review terms, as it were, then the approach deemed correct in R v (Cart) v Upper Tribunal [2012] 1 AC 663 is to be applied in that the second appeal approach should be adopted.  That I have no hesitation in rejecting.  This is not a Legal Tribunal, in the sense of a Tribunal of Appeal which is set up such as, for example, the First‑tier Tribunal in the Tribunal system.  It is a lay body. 

True, Parliament, in its wisdom, had decided its powers on appeal should be limited, but that does not make it the sort of body that is appropriate to be regarded as an appeal body, so that any further judicial review is limited to the principles applicable to a second appeal.  It is not anything like that.

The normal rules of judicial review will apply, although of course whether the panel has acted unlawfully will depend upon whether it has gone wrong in the manner in which it has exercised the powers that Parliament has bestowed upon it.  To that extent, this is a slightly different situation than is appropriate, or a straightforward judicial review of bodies which have a full general power.

It is unclear, however, if or in what way the fact that the IRP is in “a slightly different situation” to other public bodies will make a difference to the High Court’s approach to a judicial review of an IRP’s decision.

Second, the Judge considered a submission by counsel for the claimant that the principle tentatively set out in Calvin v Carr [1980] AC 574 should apply to the new IRP system.  In other words, because the IRP does not undertake a full merits review, it cannot cure defects in the decision-making at the first stage (by the responsible body).  The Judge rejected that submission.  In doing so, he made observations at paragraphs 76 to 77 as to the duty of the responsible body following a recommendation by an IRP (as opposed to a direction) to reconsider a permanent exclusion:

…it would, in my judgment, take very strong case for the governing body to refuse to reconsider. 

It would be, I am bound to say, difficult to conceive of a situation where that would be appropriate.  It may well be that on reconsideration they would reach the same conclusion in any given case.  But, faced with a recommendation based on full hearing, and often no doubt upon fresh material which was before the panel and considered by the panel, it would, as I say, be a bold step for the governing body to fail to follow that recommendation. 

 

Conclusion

IRPs face a very difficult task in reviewing a decision to permanently exclude a child.  An in-depth knowledge of public law is, it appears, essential for both applicants for review (as to which see the Matrix/City Exclusions Project which I helped to set up) and IRPs themselves.

 

Many thanks to Mr Alex Line of 3PB chambers for bringing the judgment to our attention.   Alex appeared pro bono for the claimant in this case.

Academies and Freedom of Information requests

July 16th, 2014 by Rachel Kamm

Robin Hopkins (@hopkinsrobin)  has posted the following on 11KBW’s information law blog (Panopticon), on the question of when academies are subject to the Freedom of Information Act 2000 (“FOIA”) and the Environmental Information Regulations 2004 (“EIR”):

The question of whether information is ‘held’ by a public authority for FOIA or EIR purposes can raise difficulties. This is especially so where the boundaries between public and private service provision are blurred: consider outsourcing, privatisation of services, public/private partnerships, joint ventures, the use of external consultants and so on. Legal separation and practical day-to-day realities can often point in different directions in terms of who holds information on whose behalf.

Geraldine Hackett v IC and United Learning Trust (EA/2012/0265) is a recent First-Tier Tribunal decision which addresses such issues – specifically in the context of academy school provision.

The United Church Schools Foundation Limited delivers schools through two separate trusts: the United Church Schools Trust (which runs 11 private schools) and the United Learning Trust (which runs 20 academies, and receives approximately £110k of its £129k of annual income from public funds).

Para 52A Schedule 1 FOIA brings within the scope of FOIA “the proprietor of an academy” but only in respect of “information held for the purposes of the proprietor’s functions under academy arrangements.”

Geraldine Hackett asked for information about the employment package of ULT’s chief executive (pay, pension contribution, expenses etc) and of the other members of the ULT senior management team.

ULT said it did not hold the information; the information was instead held by UCST (the private school provider). The ICO agreed. So did the First-Tier Tribunal, but this was overturned by the Upper Tribunal on account of aspects of procedural fairness which had gone badly awry at first instance.

On reconsideration by a fresh First-Tier Tribunal, the ICO’s decision was overturned. The Tribunal asked itself the questions which the Upper Tribunal had invited for consideration:

“Was it really the case that ULT had delegated day-to-day running of its charitable activities to a chief executive of whose duties under his contract of employment, ULT was ignorant? Was it permissible to avoid FOIA by the device of a contract of employment made by another body?”

It applied the leading case of University of Newcastle upon Tyne v ICO and BUAV [2011] UKUT 185 (AAC) and concluded that ULT did hold the requested information for FOIA purposes. This meant that “ULT would fulfil its obligations under FOIA by disclosing not the total sums involved but that proportion, calculated in accordance with the agreement, which relates to the academies; in other words excluding that proportion which can be attributed to USCT’s private schools.”

The Tribunal noted that “in 2006 both trusts entered into an agreement with each other to apportion the expenditure on shared services” and observed that “it appeared to us from the oral and written evidence that staff work together seamlessly for all three trusts”.

Those who grapple with held/not held questions in contexts like this will wish to note the key paragraph (19) illuminating the Tribunal’s reasoning:

“We were told at the hearing, and we accept, that the disputed information is held in hard copy in one of the filing cabinets at the United Learning Head Office. Those with access to it work seamlessly, we have found, for all three trusts. They have responsibilities to all three trusts. For these purposes, we are not attracted by artificial theories suggesting that staff hold these documents only on behalf of one or two of the trusts. Looking at actualities, and applying the plain words of the statute, in our judgment the disputed information is held by ULT, even if it is also held by UCST and UCSF. This finding is consistent with the obligations of the ULT accounting officer in respect of senior officers’ payroll arrangements…”

The original post can be viewed here.

 

Enforced Academisation

July 14th, 2014 by James Goudie QC

A judicial review challenge to an enforced academisation has failed in R (Governing Body of the Warren Comphrehensive School) v Secretary of State for Education [2014] EWHC 2252 (Admin).  The case concerns the Warren Comprehensive School (“the Warren”), a mainstream school maintained by the London Borough of Barking and Dagenham.  The Warren had been placed into “special measures” by OFSTED in February 2013.  On 6 January 2014 the SoS made two decisions with respect to the Warren.  One was to make an Academy Order, pursuant to the Academies Act 2010.  The other was to appoint an Interim Executive Board (“IEB”), pursuant to the Education and Inspections Act 2006.  The following day the Claimants issued an application for permission to seek judicial review in respect of both decisions.  On 12 May 2014, following a consultation on academy conversion, the SoS decided that the Warren should (with effect from 1 September 2014) become an Academy, sponsored by Loxford Academy Trust.  The Claimants also sought to challenge that decision.

The eventual grounds of challenge were in two parts.  First, it was alleged that both the decision to convert the Warren to an Academy and the decision to appoint an IEB were flawed as being based on a material error of fact, namely that the statistical evidence shows that sponsored Academies are more likely to deliver attainment and improved progress in Schools in need of intervention than maintained Schools.  The second was that the decision to convert the Warren into an Academy was flawed as failing to have regard to the level of disruption that would be caused and being irrational.

The case based on material error of fact was not made out on the evidence: paragraph 74 of the Judgment of Supperstone J.

The case based on the allegation of failure by the SoS to have regard to possible disruption to staff and pupils if the Warren converted to Academy status also failed on the evidence: paragraph 78.  At paragraph 80 Supperstone J observed that the SoS appreciated that it was likely that there would be some disruption during the process of Academy conversion, but considered that Loxford would appropriately manage the process in order to mitigate any such disruption.

Supperstone J further ruled, at para 84, that the SoS was entitled to conclude that the persistent under-performance of the Warren meant that steps should be taken without further delay to bring about a long-term sustainable improvement.

11KBW’s Jonathan Swift QC and Joanne Clement appeared for the Secretary of State.

James Goudie QC

The Special Educational Needs (Personal Budgets) Regulations 2014

June 28th, 2014 by Rachel Kamm

These regulations will come into force on 1 September 2014. They basically extend  the current pilot scheme for personal budgets to all local authorities and apply it to the new Education Health and Care Plans regime. I posted back in 2012 about the pilot scheme and these  new regulations make very few changes to the substance of that scheme.

The DfE’s guidance includes the following about personal budgets:

“Services which can be offered as a personal budget:

‘As part of their local offer, local authorities should set out a local policy for personal budgets, developed with parents and young people, which describes the services across education, health and social care that currently lend themselves to the use of personal budgets, how that funding will be made available, and includes clear and simple statements of eligibility criteria and the decision making processes that underpin them.

To achieve this, local authorities should work with their partners to:

      • identify and agree the funding streams and services for inclusion from September 2014 and develop the necessary infrastructure to support their inclusion;
      • identify and establish the information advice and support necessary at an area and individual level to help families consider options for, and to take up and manage, personal budgets;
      • develop a pathway for personal budgets within the assessment and planning process and the workforce and cultural changes necessary for a person centred approach; 
      • identify how the new joint commissioning strategies will support greater choice and control beyond September 2014, with a view to new enhanced offers from September 2015 through to September 2017 (and beyond) as the market is developed and funding streams freed up from existing contractual arrangements; and
      • maintain the core principles in the SEND Code of Practice at all times, ensuring children, young people and families are involved in the decision making processes at both an individual and strategic level.”

There are examples of case studies and lessons learnt from the pilot scheme here.

[I posted this yesterday and it started a discussion on Twitter (@Kamm11KBW) about how the current pilot scheme is working. As I commented in 2012, ” Whilst it is only a pilot scheme, it applies to a fairly large number of local authorities and those pilot authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments“. The discussion on Twitter suggested that some parents’ experience is that some local authorities have been slow to recognise that the pilot scheme gives rights to individuals, and also that some parents were not clear about the content of those rights or about how personal budgets fit into the wider SEN system.  So, here is a very brief summary of how it should be working now and how it should work in future with EHC Plans:

The LA must provide the special educational provision in the SEN statement / EHC Plan. One way in which it can do that is by providing a sufficient direct payment to the parent (or other appropriate person, under the regulations) for them to secure any of the goods and services listed in section 532A(2) of the Education Act 1996. The LA only has a power to make a direct payment if various conditions are met, as set out in the regulations. The parent / young person does not have an absolute right to a direct payment, but they do have rights (i) to receive information and advice, (ii) to have any request for a direct payment considered, (iii) to be given reasons if they are not granted a direct payment, and (iv) to a review of any refusal. A direct payment can only be used for goods/services in a school or college  if the head teacher / principal  consents. If the LA grants a direct payment, it must monitor its use, which can only be used to secure the agreed provision. There are some changes to the detail of this scheme, with the introduction of EHC Plans covering SEN from early years to age 25, but the general idea remains the same.]

Rachel Kamm, 11KBW, @Kamm11KBW

New rules for school lunches – would yours comply?

June 23rd, 2014 by Paul Greatorex

The Requirements for School Food Regulations 2014 (SI 1603/2014) have been promulgated, setting out the rules for school lunches and other food provided in school which will come into force on 1 January 2015.  They apply to:

  • maintained schools
  • pupil referral units
  • academies, except for those those who entered into funding agreements between September 2010 and June 2014 (when apparently no relevant clause was included in the funding agreement)
  • maintained nurseries and nursery units within a primary school
  • food provided by a local authority or governing body to pupils on school trips of 7 days or longer

Requirements for school lunches include:

  • meat or poultry at least 3 times per week, but processed meat no more than once (primary schools) or twice (secondary schools) per week and no economy burgers
  • oily fish at least once every 3 weeks
  • one portion each of vegetables, fruit and dairy (cheese, yoghurt, fromage frais and custard) per day
  • fried food and food including pastry no more than twice a week
  • a fruit-based dessert (at least 50% fruit) at least 2 times per week
  • no salt to be available to add to food
  • semi-skimmed and lactose reduced milk to be available at some point during school day

And when reaching for your afternoon snack, note the rules for food provided otherwise than as part of a school lunch (i.e. tuck shops etc.):

  • fruit and/or vegetables must be available
  • no sweets, cakes, biscuits, savoury crackers or breadsticks
  • no crisps or other pre-packaged snacks apart from nuts, seeds, vegetables and fruit with no added salt, sugar or fat
  • no sweet fizzy drinks

The Department for Education has also published advice for governing bodies on the new rules which is available, together with a copy of the regulations, here.

Bon appetit!

Paul Greatorex

 

Brown v Board of Education No.(2)? Maybe.

June 15th, 2014 by Thomas Ogg

On 10 June 2014, Judge Treu of the Superior Court of California struck down three laws relating to teacher retention as unconstitutional.  Such is the significance of the case, he began his judgment with a quotation from Brown v Board of Education (1954) 347 US 483.  The case of the plaintiffs (as there they are still called) was summarised by Judge Treu as follows:

“Plaintiffs claim that the Challenged Statutes result in grossly ineffective teachers obtaining and retaining permanent employment, and that these teachers are disproportionately situated in schools serving predominantly low-income and minority students.  Plaintiffs’ equal protection claims assert that the Challenged Statutes violate their fundamental rights to equality of education by adversely affecting the quality of the education they are afforded by the state“.

The laws that were struck down were:

  • A “Permanent Employment Statute” whereby tenure is granted to teachers after approximately two years;
  • A set of “Dismissal Statutes” which are apparently “too time consuming and too expensive” for officials to contemplate using to dismiss ineffective teachers.  The evidence before the court was that dismissing a teacher costs $50,000 to $450,000 and takes between two and ten years.
  • A “Last-In-First-Out Statute”, which requires that when redundancies are to be made, the most junior staff must be dismissed before more senior staff.

The case, Vergara v State of California, was brought in the name of nine California public school students (i.e. state school students), and was funded by telecoms millionaire David Welch by means of an advocacy group called Students Matter.

The case is interesting because (as the Judge notes), it is ostensibly not about educational equality, but about the quality of education.  The evidence relating to the impact of those teachers on their students, Judge Treu held, “is compelling.  Indeed, it shocks the conscience“.  The evidence he refers to states that the 1-3% of teachers in California who are “grossly ineffective” cost the students in their respective classrooms $1.4 million in lifetime earnings per teacher (when lost earnings of all students in that class are summed).   The Economist claims that teacher quality is more important than class size, income level, or access to high-tech equipment in influencing educational outcomes.

Whatever you think of the politics of the case, it is illustration of the global trend of activist groups turning to the courts to achieve their aims.  In the UK, most of the big education cases have been reactions to changes to policy – see for example the Building Schools for the Future and English GCSE judicial reviews, and the mooted JR of the new rules on taking holidays during school terms.  The Vergara case, however, is different because it is a direct challenge to an established orthodoxy.  An equivalent legal challenge in the UK might, for example, be to the grammar school system (though I doubt the evidence in such a case would be nearly as striking as in Vergana).

Vergana is also interesting because it reflects a longer-term focus in academia on how ‘teacher quality’ is important to educational outcomes: see the world leading research produced by the Centre for Educational Policy Analysis at Stanford University.  As UK judicial reviews have tended to be reactive in nature, the evidence relating to the issue of concern has usually been scanty.  See for example the tuition fees judicial review (in which, as with the above JRs, 11KBW members were prominent).  There, Elias LJ noted: “The debate before us has consisted of each side marshalling arguments directed largely to predicting what the cumulative outcome of the various measures will be… In my judgment, at this stage it is all too uncertain and it would be wrong for the court to find disparate impact where that is neither an obvious nor even a strong inference from the facts.

Putting aside the other grounds on which Elias LJ found that claim to be unfounded, perhaps what Vergana illustrates is the value of pursuing a case once the academics have done their research, and not before (putting aside problems of delay, which are often surmountable).  The employment tribunal fees judicial review, in the which the court in effect told the claimants to come back when (or if) there is enough evidence to determine the substantive issue, is perhaps another illustration of this idea.  The extent to which concrete evidence, rather than speculative evidence, might affect the merits of a case heard by an English court on a matter of social policy would be interesting to see.

The ruling made in Vergana is stayed pending appeal, and has caused a considerable political storm in the USA.  I wonder, though, whether in the meantime it will inspire solicitors working in education law to spend more time with education academics, or to try to persuade groups like the Sutton Trust to take the legal route?

Thomas Ogg