This is the latest in our series of quarterly education update blogs which will enable readers to catch up on the most important cases, issues or developments in education law from April 2015 to June 2015. Please feel free to submit a comment below or send us an Ask query if you have any views on the cases, issues, or legal development that are covered or if you think we have missed something that should be brought to the attention of education law practitioners.
In this post, we look at:
- Recent decisions.
- Legislative developments.
- Government guidance.
School must disclose results of parent, pupil and staff survey under FOIA (King Edward VI Handsworth School v Information Commissioner)
On 26 May 2015, the First-tier Tribunal (Information Rights) (FTT(IR)) upheld the Information Commissioner’s decision that an independent school must publish under the Freedom of Information Act 2000 (FOIA) the collated results of pupil, parent and staff surveys that were conducted to help the school’s senior leadership team plan. The applicant had requested the survey results but the school (a FOIA public authority) had refused, citing section 36(2)(c) of FOIA (prejudice to the effective conduct of public affairs in the opinion of a qualified person, in this case the school’s Chair of Governors). The school was concerned that results if published could be misinterpreted and might damage morale. The school later also relied on the personal data exemption in section 40(2) of FOIA to redact parts.
On reconsidering the qualified person’s opinion, the FTT(IR) held that the potential for misinterpretation was not a sufficient ground for refusing to publish, especially since the information could be accompanied by an explanatory note. The public interest was in favour of transparency regarding the performance of a publicly-funded institution, and respondents had been given no promise of anonymity.
In view of the school’s evidence that, in hindsight, it would have carried out the survey differently, public authorities should be wary of the information they create about their performance: the potential for information to be misinterpreted will not necessarily be a reason to withhold its publication.
Council’s amended school transport policy denying free school transport to children attending faith schools discriminatory and unlawful (R (Diocese of Menevia and others) v City and County of Swansea Council)
On 22 May 2015, the High Court held that the council’s amended home-to-school transport policy in relation to the faith schools in its administrative district was unlawful. The effect of the policy change meant that, from September 2015, free transport to the faith schools would be provided only if the school was more than two miles from their home (or three miles for secondary school children) and when there was no nearer non-faith school for the pupils. However, funding for transport for those pupils attending a Welsh-medium school would continue even if there were an English medium school within two or three miles of their home.
The council’s equality impact assessment, which was included in the papers that went to the meeting of the full council that approved the amended policy, stated that the change in policy was not relevant to race or the Welsh language. Further, the officer’s report wrongly advised members that they had to no option but to continue providing free transport to Welsh-medium schools in order to comply with the authority’s duty to promote access to education and training under the Learner Travel (Wales) Measure 2008. In upholding the challenge, the court held that the:
- Amended policy constituted indirect race discrimination under section 19 of the Equality Act 2010 as it put children of black and minority ethnic origin who were more likely to attend a faith school than a Welsh language school.
- Report to members contained a material error of law, which vitiated the decision.
The case reiterates the importance of considering all the legal implications of a decision and ensuring that the report to members does not misstate the law.
High Court holds police disclosure of safeguarding information to local authority breached Article 8 (R (AB) v Chief Constable of Hampshire Constabulary)
On 20 May 2015, the High Court held that a decision by the police to disclose safeguarding concerns about a teacher to a local authority designated officer (LADO) was unlawful, because it failed to have regard to the teacher’s rights to a private life under Article 8 of the European Convention on Human Rights (ECHR). The judicial review proceedings were issued by the teacher against the police following the false information that the police had supplied to the LADO that the teacher, who had been dismissed from one school for gross misconduct, had been dismissed from another because of inappropriate conduct. The High Court held that the police officer should have had regard to the criteria set out in the Police Act 1998 and the relevant statutory guidance when considering whether to disclose the information. That failure to make the necessary inquiries meant that the decision did not comply with Article 8 of the ECHR.
The case demonstrates that designated officers and those in education should consider following the formal procedures even when making disclosures informally, particularly in an employment context, or to third parties. Even safeguarding duties will not necessarily permit unfounded allegations to be disclosed: courts may expect common sense fact-checking first.
School successfully challenges School Adjudicator’s decision on faith-based over-subscription criteria (R (Governing Body of the London Oratory School) v Schools Adjudicator)
On 22 April 2015, the High Court quashed the majority of findings made by the Office of the School’s adjudicator following an investigation into a complaint made about a faith school’s over-subscription criteria. The complaints centred on the extent to which the school could legitimately depart from guidance issued by the Diocese, to which it was obliged to have regard when setting its faith-based over-subscription criteria.
The High Court held that the school was required to show a clear and proper reason for departing from the guidance which will be more difficult when its over-subscription criteria undermine or conflict with the guidance. Schools and local authorities, setting admissions criteria for faith-based schools that are oversubscribed, will find useful guidance in the judgment which carefully examines the law in this area.
On 3 June 2015, the Education and Adoption Bill 2015-16 was published. The Bill, which was introduced by the Queen’s Speech 2015, includes provisions about schools in England that are causing concern and their conversion into academies and deals with intervention powers in schools that are “coasting”. It reflects the government’s intention to turn around failing schools by “sweeping away bureaucratic and legal loopholes that previously prevented schools from being improved” and to ensure that campaigners are unable to delay or overrule failing schools being improved by education experts by obstructing the process by which academy sponsors take over running schools.
On 25 June 2015, the DfE published a series of model ballot documents for grammar schools converting to academies, together with accompanying guidance which explains which schools should use which model ballot papers.
On 12 May 2015, the Department for Education (DfE) published updated guidance for schools on effective buying. The guidance, which is aimed at school leaders, school business managers, back office staff and governing bodies, has been revised to take into account changes to the public procurement regime introduced under the Public Contracts Regulations 2015. It also includes information on catering services and how savings can be made by schools. The guidance will be reviewed again before 29 February 2016.