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

Discipline in Academies – the tyranny of legislation

March 7th, 2012 by Edward Capewell

One of the principal planks of the Academy schools programme is that Academies are ‘independent’ schools. The Coalition government’s aim was concisely expressed in ‘The Importance of Teaching’, the white paper which led to the Education Act 2011: “We want every school to be able to shape its own character, frame its own ethos and develop its own specialisms, free of either central or local bureaucratic constraint.”

The School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012 (SI 2012/619) could be seen as just such a constraint however.

In order to understand what they are about it is necessary to refer to section 550ZA Education Act 1996 which, as everyone knows, was inserted into that Act by section 242 Apprenticeship, Skills, Children and Learning Act 2009 and amended by section 2 Education Act 2011. Section 550ZA gives members of staff the power to search pupils for ‘prohibited items’ such as knives or drugs. One of the amendments introduced by the Education Act 2011 provides that ‘the school rules’ can identify ‘prohibited items’ beyond those prescribed by the statute. Mobile phones and ipods are perhaps obvious candidates.

What though, is meant by ‘the school rules’? In the nature of modern legislation this cannot be left to chance, or common sense. In the case of maintained schools they are “measures determined and publicised by the head teacher under section 89 of the Education and Inspections Act 2006.” What, though of Academy schools? Surely they can set their own rules without ‘bureaucratic’ interference?

Enter the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012. These do not say what the rules should contain, but prescribe the process which the principal of the Academy must follow in setting the rules. So by regulation 2 the principal must consult pupils, parents, staff and the proprietor of the Academy before making any such rules. She must also have regard to any guidance issued by the Academy proprietor. By regulation 3 she must make them ‘generally known’ among parents and pupils and must publicise them ‘in the form of a written document’ and take steps to bring them to the attention of pupils, parents and staff ‘at least once in every school year’.

Surely this was not what was intended by freedom from bureaucratic constraint?

Education Act 2011

November 16th, 2011 by Edward Capewell

Eagle-eyed readers will doubtless have spotted that the Education Bill is now the Education Act. It received Royal Assent yesterday, 15th November 2011. Practitioners will no doubt warmly welcome a further 83 sections and 18 schedules of education legislation.

How much of it is already in force, and when the rest will come into force, is determined by section 82, to which readers should direct their attention. One provision which came into force yesterday is section 58, the late amendment designed to tidy up the confusion over local authorities’ continuing PFI payments in respect of Academies (see Clive Sheldon’s earlier post on the subject here).

The DfE has a webpage on the Act and supporting documents (including, for those who are interested in these things, the Equality Impact Assessment) here, and you can read and download a pdf copy of the Act from the legislation.gov.uk website here.

Academies – Land Transfer

November 9th, 2011 by Edward Capewell

One of the more difficult legal problems surrounding the creation of an academy relates to the transfer of land. Schedule 1 to the Academies Act 2010 gives the Secretary of State a wide power to “make a scheme in relation to land” where certain conditions are met – being in short that the local authority owned the land, used it for a maintained school but is about to cease doing so.  But what information does a local authority need to provide to the Secretary of State so as to ensure that all the loose ends (of which there are often many in real property law) are sewn up when the scheme is made?

That is the purpose of The Academies (Land Transfer Schemes) Regulations 2011 which are currently being consulted upon by the DfE in draft. They will require local authorities to provide the Secretary of State with information and documents – such as title documents, the register entry and plan (if the land is registered), the title deeds (if the land is unregistered) and so forth – when the Secretary of State asks for them.

The consultation will run until 18th January 2012, and local authorities (who are the only consultees) have until then to respond. You can read the brief consultation documents and the draft regulations on the DfE website.

Academies and PFI

October 17th, 2011 by Edward Capewell

There has recently been a degree of confusion surrounding the role of local authorities vis a vis PFI contractors when a maintained school becomes an academy (see Holly Stout’s post in September here). The Department for Education has therefore published an opinion it has obtained from leading counsel on the issue. You can view both the instructions and the opinion on the DfE’s website and read an article about the issue on the website of the Local Government Lawyer.

A busy day for Mr Gove

July 19th, 2011 by Rachel Kamm

Michael Gove has made a statement today covering a number of education funding topics. There are various decisions, one ‘minded to’ decision and three consultation exercises.

First, the decisions. On schools capital, there will be £500 million to help local authorities provide extra school places to meet the extra pressures caused by increased birth rates. It is announced that there will also be a new (privately financed) school rebuilding programme, targeting those schools in the worst condition; applications can be submitted in October. School building regulations will be pared down significantly with the intention of cutting both costs and red tape.  The Government has said that it will carry out a condition survey of all school buildings so that funding can be better targeted and that it will also improve the design of schools to achieve better buildings and better value.

The ‘almost a decision’ is that  “The Government is minded not to fund the [Building Schools for the Future] projects which were the subject of a judicial review earlier this year, subject to further representations from the authorities involved“.

The three consultation exercises are on:

1. The recommendations of Sebastian James’s review on school building - the recommendations will be broadly accepted subject to consultation on the details and implementation;

2. Proposals for a new, fairer and more transparent school funding system - the current funding scheme for maintained schools will continue in 2012-13; and

3. On LACSEG academy funding -  the webpage for the consultation paper states that “The Secretary of State for Education, in consultation with the Secretary of State for Communities and Local Government, has agreed to reconsider the appropriate reduction to local authority funding to be made to reflect the transfer of central services from local authorities to academies and Free Schools. This consideration will apply to the transfers for both the 2011-12 and 2012-13 financial yearsWe want to ensure that academies and local authorities are funded fairly and we welcome the opportunity to seek views on this reconsideration from local authorities, the Local Government Association and London Councils.

The accompanying letter to local authorities explains that there will also be an open consultation on the 16-19 funding formula and methodology in the coming months.

One in 10 schools is now an academy

January 6th, 2011 by Edward Capewell

More information from the Department for Education today on the progress of the Academies Programme. According to this press release more than one in ten schools is now an Academy. There are now 407 Academies, 203 set up by the last government, and 204 set up by the Coalition since September 2010 (the figures may be slightly misleading as it is not clear how many of the 204 were already in the pipeline to become Academies before the Coalition programme began). 46 schools are opening as Academies in this week alone. As at 5th January 2011 there were 390 applications to become Academies (including those which have already opened) and 248 Academy orders have been signed.371 secondary schools are now academies, which is 11% of the total.

It is also possible to read case studies on the DfE website of schools which have recently converted to Academy status. Perhaps needless to say, these are all very positive about the benefits of converting to Academy status, but this BBC news report contains some less complimentary views.  The teachers’ unions are, generally speaking, hostile to the idea, with the deputy general secretary of the ATL union saying that the “academies policy leads to anarchy, breaking up the local education system, preventing sensible and efficient planning, and opening up free-floating schools to private firms with profit motives.

Academies and charities regulation

January 6th, 2011 by Peter Oldham QC

S 12(4) of the Academies Act 2010 amends the Charities Act 1993 by adding qualifying academy proprietors to the list of exempt charities in Schedule 2 to the 1993 Act.  S 12(4) was due to come into effect on 1st January 2011 – see art 4 of the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010. However, this provision of the 2010 Order was revoked by the Academies Act 2010 (Commencement and Transitional Provisions) (Amendment) Order 2010 on 22nd December 2010.  The explanatory note to the Amendment Order says:-

“This Order amends Schedule 3 to the Academies Act 2010 (Commencement and Transitional Provisions) Order 2010 by revoking the commencement of section 12(4), due to come into force on 1st January 2011.

Section 12(4) amends Schedule 2 to the Charities Act 1993 (exempt charities) to add a qualifying Academy proprietor to the list of exempt charities. An exempt charity does not need to register with the Charity Commission and is regulated, in the first instance, by its principal regulator (appointed by regulations made under section 13(4) Charities Act 2006). The Order has the effect of preserving the Charity Commission’s power to act for the protection of academy proprietors as charities under section 18 of the Charities Act 1993. At the point at which a principal regulator is appointed for Academy proprietors, section 12(4) will be brought into force.”

Peter Oldham QC


Ofsted Annual Report

November 25th, 2010 by Edward Capewell

On 23rd November 2010 the Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, better known as the Ofsted Annual Report was published. The report is of course made pursuant to section 121 of the Education and Inspections Act 2006. It can be read here and there is a rather more easily digestible (though quite brief) summary here. The report of course covers the full range of Ofsted’s responsibility – so includes children’s social care and local authority children’s services – but the lion’s share deals with schools (see paragraph 51ff). I set out in this post some of the more interesting features of the report (with apologies for the torrent of statistics):

-          There were nearly 32,000 inspections and regulatory visits made between September 2009 and August 2010. That included inspections of over 6,000 maintained schools      (including academies) and 300 independent schools.

-          Of those schools inspected in 2009-2010, 13% were ‘outstanding’, 43% were ‘good’ 37% were ‘satisfactory’ and 8% were ‘inadequate’ (figures are rounded).

-          The number of outstanding schools was down from 19% the previous year and the number of inadequate schools was up 4% (from 4%). Ofsted is at pains to emphasise however that those figures are largely attributable to the new, more rigorous, section 5 Education Act 2005 framework for inspections which was published on 6th August 2010 (but applies to inspections carried out from September 2009) (fig 16).

-          55% of schools which were outstanding when last inspected were no longer outstanding when inspected in 2009-2010.

-          Nursery schools had the highest proportion of outstanding inspections (59%) with primary schools having the lowest (9%) (fig 13).

-          Nursery schools also had the lowest proportion of inadequate schools (3%) with secondary schools having the highest (13%).

-          Special schools generally performed better than ordinary maintained schools with 35% rated outstanding and 43% good (paragraph 58). However those figures hide considerable discrepancies between types of special school: those catering for children with behavioural, social and emotional difficulties were less than half as likely to be outstanding and more than twice as likely to be inadequate as other special schools. These issues are dealt with in more detail in Ofsted’s recent report on SEN (September 2010).

-          The figures for quality of teaching in different types of school are striking. The teaching in 57% of nursery schools was rated outstanding – the figure for primary schools a mere 5% and for secondary schools only 4%. 52% of primary schools and 47% of secondary schools provided good teaching however (fig 22).

-          Of 43 academies inspected, 11 were outstanding, 9 were good, 20 were satisfactory, and three were inadequate. Most of the academies inspected however were section 482 academies (typically converted from ‘failing schools’) rather than what the report describes as ‘fast track’ Academy Act 2010 academies (converted from outstanding schools) (paragraph 127).

-          The best academies, the report states, have “inspirational leadership”, ”a distinctive and flexible curriculum including a wide range of academic and vocational choices”, “highly committed and effective governance”, “very high and shared expectations across all classrooms” and “stimulating and interesting lessons” (paragraphs 130-132).

-          As at 31st August 2010, there are 300 schools (1.3% of the total) in special measures and 276 (1.2%) which have been given a notice to improve. (For more detail on the destinations of schools placed in special measures or given a notice to improve last year see paragraphs 440-514).

The Prime Minister’s foreword to the White Paper published yesterday promises to “re-focus Ofsted inspections on their original purpose – teaching and learning…” which appears to suggest that there will be another new framework for inspections soon. That no doubt means we can look forward to next year’s statistics not being directly comparable to this year’s, in the same way that this year’s are not directly comparable to last year’s. Not, perhaps, exactly a recipe for achieving what the White Paper calls “a streamlined and effective accountability system”.

The Freedom of Information (Time for Compliance with Request) Regulations 2010

November 24th, 2010 by Rachel Kamm

These Regulations are made under the Freedom Of Information Act 2000 and extend the time limit for Academies to respond to requests for information. The normal time limit for responding is twenty working days of date of receipt of the request. However, where the information is requested from an Academy, then any working day which is not a school day for that Academy is disregarded (subject to a long stop of sixty working days). These are the same timeframes as apply to schools covered by The Freedom of Information (Time for Compliance with Request) Regulations 2004 (S.I. 2004/3364) and The Freedom of Information (Time for Compliance with Request) Regulations 2009 (S.I. 2009/1369).

This post is also on 11KBW’s information law blog: http://www.panopticonblog.com/.

Confirmation of opening up of academy applications

November 19th, 2010 by Rachel Kamm

Further to Peter’s post on Wednesday, the DfE website now confirms that a wider range of schools will be able to apply to become academies. Michael Gove has announced that “Alongside outstanding schools, all schools that are ranked good with outstanding features by Ofsted will automatically be eligible for academy status. All other schools – primary or secondary – that wish to enjoy academy freedoms will also be eligible, providing they work in partnership with a high-performing school that will help drive improvement. In addition, for the first time, special schools will also have the opportunity to become academies, providing them the opportunity to operate with greater freedom and autonomy in order to better respond to the needs of children with special educational needs or disabilities. Special schools will be able to apply to convert in January.” (http://www.education.gov.uk/schools/leadership/typesofschools/academies/a0068006/academy-model-extended-so-every-school-can-benefit). More than 220 schools have applied and 80 academies have opened since July 2010.