Welcome to 11KBW's Education Law Blog, and thank you for taking the time to visit us.  This is a blog about education law, maintained by 11KBW's Education Law Practice Group.
Subscribe by RSS

Education in Wales

October 28th, 2014 by James Goudie QC

The Education (School Development Plans) (Wales) Regulations 2014, SI 2014/2677 (W.265) apply to Governing Bodies of maintained schools. They impose a duty on the Governing Body to draw up a School Development Plan in order to assist it to exercise its responsibility for conducting a maintained school with a view to promoting high standards of educational achievement.  That duty does not affect the general principles and respective roles and responsibilities of governing bodies and head teachers set out in the School Government (Terms of Reference) (Wales) Regulations. The content of the plan is set out in the Schedule.

The School Development Plan has effect for a three year period. The Governing Body must revise it annually and following an inspection by Her Majesty’s Inspectorate for Education and Training in Wales.

Provision is made in relation to publication. In drawing up the School Development Plan the Governing Body must have regard to school performance information. The Governing Body must consult with those persons prescribed.

The Education (Pupil Referral Units) (Management Committees etc) (Wales) Regulations 2014, SI 2014/2709 (W.270) require local authorities to establish Management Committees (“MCs”) to run Pupil Referral Units (“PRUs”) in their area, and make provision for the constitution and procedure of MCs.  A MC may run more than one PRU.  Local authorities must delegate certain functions, principally the function of conducting the PRU, to the MC.  Written Statements of Policy in relation to the Curriculum of the PRU must be made, and periodically reviewed.

Local authority powers to suspend and dismiss teachers

October 17th, 2014 by Thomas Ogg

In Davies v LB Haringey, a decision of Mr. Justice Supperstone handed down on today (17 October 2014), the claimant was a teacher who had been on full time release for trade union duties for 14 years.  At the time she went on release, she was working at a community school, so by section 35 of the Education Act 2002 her employer was the local authority rather than the governing body.

In 2014, the council wished to investigate disciplinary allegations against her and suspended her in relation to breaches of the council’s Code of Conduct and Social Media Policy.  She claimed that this was a breach of her employment contract, asserting that, by reason of regulation 19 the School Staffing (England) Regulations 2009, only the governing body had the power to suspend her.

The Council, represented by Peter Oldham QC of 11KBW, argued that the Regulations applied only to those worked in schools, and the reality of the situation was that the claimant had not done so for a long time. Further the Council argued that regulation 19 of Regulations gave a power to the governing body to suspend but did not take away the Council’s power to suspend under the contract of employment.

The judge agreed with both of the Council’s contentions.   Whilst the facts were very unusual (on account of the teacher’s absence from the school on trade union duties), nevertheless, the determination that the local authority retains statutory powers of suspension and discipline, at least in exceptional cases, is significant.

Tom Ogg

11KBW Education Conference, 13th November 2014

October 8th, 2014 by admin

11KBW Education Group presents a half day conference on 13th November 2014, focusing on updates in legislation, case law and the day to day issues faced in the Education Sector with topics on: Children and Families Act 2014/special educational needs, academies, transport, exclusions, discrimination and human rights.

Peter Oldham QC will be chairing the conference.

Conference agenda

TIME Topic Speaker
9.15am Registration  
9.45am Introduction from Chair Peter Oldham QC
9.50am Special Educational Needs 1 Rachel Kamm
10.15am Special Educational Needs 2 Joanne Clement
10.40am Academies Jonathan Moffett
11.20am Exclusions Tom Ogg
11.55am Transport Paul Greatorex
12.20pm Discrimination and Human Rights Tom Cross
12.45pm Q&A  
1.00pm LUNCH


Conference Information

Date: 13th November 2014.

Time: Registration from 9.15am. The conference will start at 9.45am until 1pm, with lunch being served afterwards.

Venue: Crown Plaza, 19 New Bridge Street, London, EC4V 6DB

CPD: The conference will be accredited 2.5 hours with the SRA and BSB

How to book

Cost per delegate will be £40.00 + VAT.

To book your place on the conference please email: rsvp@11kbw.com You will be sent an invoice. We do not have the facilities to take payment by credit or debit card.

Department for Education guidance: comprehensive lists and links

September 22nd, 2014 by Paul Greatorex

Tracking down government guidance, or even knowing what guidance exists, is often far more difficult than it should be, so it was very pleasing to discover the Department for Education has put its into the following comprehensive lists:

In the same helpful vein, the Department last week published “Statutory policies for schools” which sets out all of the policies and documents that governing bodies and proprietors of schools are required to have by law.  This also makes clear which types of schools have to have which policies, how often each policy must be reviewed and (where prescribed) the level of approval required for each.

Paul Greatorex

Court of Appeal overturns decision on eligibility for student loans

September 9th, 2014 by Rachel Kamm

I posted last month about the High Court’s decision in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company [2014] EWHC 2452, where Mr Justice Hayden found that the policy for eligibility for student loans was unlawful.

The Court of Appeal has overturned that decision. The full text is available on Lawtel.

Lord Justice Laws (with whom LJ Floyd agreed) concluded that the Secretary of State was justified in promulgating a bright line rule. Any bright line rule must reflect that the Secretary of State was obliged to accord a high priority to opening higher education to those who may deploy their talents here and he had a very broad margin of discretion. Lord Justice Laws then drew an interesting distinction between the roles and processes for setting immigration rules for settlement and education rules for student funding.  He concluded that the Secretary of State for BIS was entitled to adopt a criterion dependent on settlement and he was not required to modify it by reference to the fact that the Home Office might alter the Rules by which settlement was achieved from time to time. Further, the Secretary of State for BIS was entitled to rely on the legality, the propriety in public law terms, of the Immigration Rules relating to settled status.

Lord Justice Vos expressed his reasons for allowing the appeal slightly differently. Further to what LJ Laws found, he concluded that the Secretary of State for BIS must ensure that the student funding regulations operated properly in the context of immigration policy. Whilst he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way that the immigration processes operated. He found that the eligibility requirements were lawful (only) because there had at all relevant times been a discretion to grant indefinite leave to remain to children on section 55 grounds (i.e. the duty to have regard to the need to safeguard and promote the welfare of children in the UK). 

Therefore, whilst expressing sympathy for her situation, the Court of Appeal found that the Secretary of State was entitled to have a bright line rule that excluded Miss Tigere from the student loans scheme on ground of her immigration status.

Rachel Kamm, 11KBW

SEND: guide for social care professionals

September 1st, 2014 by Rachel Kamm

So, it’s 1 September and the new regime has started. The Department of Education has chosen today to publish more guidance, to keep everyone busy on the first day. This is non-statutory guidance: Social care: guide to the 0 to 25 SEND code of practice, Advice for social care practitioners and commissioners. It will be of interest to education lawyers and all those implementing the new EHC Plans.

Rachel Kamm, 11KBW

The final pieces of the SEN jigsaw

August 31st, 2014 by Rachel Kamm

Even when I’ve been working through the summer, I still get that back-to-work feeling at the end of August. The feeling is stronger than usual this year, perhaps because it is not just a new school year but a whole new regime for SEN. Those of you who are coming to 11KBW’s special education law conference on Wednesday will have the chance to spend a whole morning thinking about the changes. For the rest of you, here is an update as the last few pieces of the legislative jigsaw fall into place.

The Children and Families Act 2014 (Transitional and Saving Provisions) (No. 2) Order 2014 was made on 26 August and comes into force on 1 September. This is accompanied by the statutory guidance: Transition to the new 0 to 25 special educational needs and disability system. This is the final version of the guidance that I posted about in June.

I also posted back in June about the Special Educational Needs (Personal Budgets) Regulations 2014. These have been amended by the Special Educational Needs (Miscellaneous Amendments) Regulations 2014, which add new regulation 4A. The amendment provides (in summary) that a local authority is not required to prepare a personal budget in respect of any provision which the local authority secures by making an aggregate sum to a third party, if the notional amount for that individual’s provision cannot be disaggregated from the aggregate sum because this would have an adverse impact on other EHC plan services or this would not be an efficient use of the local authority’s resources.

The amendment regulations also make a minor amendment to the Special Educational Needs and Disability Regulations 2014, so that it is clear that regulation 20 (which sets out the process for reviewing statements) applies only to children and young persons who attend a school or institution.

Finally, the Special Educational Needs (Code of Practice) (Appointed Day) Order 2014 has been made, which provides that the Code of Practice (published in July) will come into force on 1 September.

Rachel Kamm, 11KBW

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