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 July 2015 to September 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 case law.
- Legislative developments.
- Government guidance and policy statements.
Recent case law
Schools Adjudicator: school’s failure to consult parents on changes to oversubscription criteria breached School Admissions Code (Determination ADA2875)
On 18 August 2015, the Office of the Schools Adjudicator (OSA) held that a voluntary aided school’s consultation on changes to its admission arrangements for September 2015 did not comply with the School Admissions Code as parents were unaware of the proposed changes to the arrangements. The OSA also considered that, although there was no evidence of unfairness in the change to the oversubscription criteria giving priority to children baptised before their first birthday, the change was unfair for those children already attending the linked infant school who did not meet the changed criteria as they had a reasonable expectation that they would obtain a place at the junior school. Therefore, the school had to consider how it could mitigate the unfairness that had been created by its changes to the admission arrangements.
The case is a reminder of the importance of complying with the consultation requirements in the School Admissions Code relating to admission arrangements.
Schools Adjudicator finds school reduced its published admission number without proper consultation (Determination ADA2987)
On 18 August 2015, the OSA determined that the governing body of a voluntary aided junior school in Epsom had reduced the school’s published admission number (PAN) for the September 2016 intake without proper consultation. The local authority had objected when the school decreased its PAN for 2016 from its 2015 PAN, without consulting on the decrease. The school argued that it had mistakenly published its 2015 PAN as 90: instead, it should have said that it was 64, but 26 extra pupils were being taken using extra “bulge” funding from the council. Therefore, the school said that it was not required to consult on having a PAN of 64 for 2016. The Schools Adjudicator did not agree. The school had clearly published its 2015 PAN as 90 and therefore it should have conducted a consultation on its proposed reduction for 2016. The council’s failure to notice the reduction in the 2016 PAN, and to advise the school to consult on the reduction, did not remove the obligation on the school to consult. Therefore, the school was ordered to revise its admission arrangements within two months of the determination.
Schools need to be very careful when publishing and describing their PANs for a particular year. Any mistake, unless it is a genuine typographical error, may lead to them being obliged to consult on any variation from that mistaken PAN in future academic years, and possibly even to take on more pupils than they intended.
Challenge to local authority decision to close two primary schools in Wales fails (R (Wiggins and another) v Neath Port Talbot County Borough Council)
On 30 July 2015, at a rolled up hearing, the High Court refused leave in two linked cases (an application to renew and an application for permission) in which the claimants challenged the decision of Neath Port Talbot County Borough Council to close two primary schools in its area. In refusing leave, the court accepted the council’s argument in each case that it was highly likely that the outcome for the claimants would not have been substantially different.
This appears to be one of the first cases where the High Court was asked by the defendant council to consider whether the outcome for the claimant would have been substantially different if the conduct complained of had not occurred. Section 31(3)(C) and (D) of the Supreme Court Act 1981 provides that the High Court must consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred if asked to do so by the defendant and must refuse to grant leave if it is highly likely that the decision challenged would not have been substantially different. The amendment was added by section 84(2) of the Criminal Justice and Courts Act 2015 and only applies to judicial proceedings commenced on or after 13 April 2015.
Legislative developments
- On 18 September 2015, the Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Guidance) Regulations 2015 (SI 2015/1697) came into force. These regulations brought into force revised statutory guidance for local authorities and schools (and other specified authorities as listed in Schedule 6 to the Counter-Terrorism and Security Act 2015). The revised guidance, which replaces the previously issued guidance that came into effect on 25 March 2015, covers how specified authorities in Scotland, England and Wales should perform their duty under section 26(1) of the Act to have due regard to the need to prevent people from being drawn into terrorism.
- On 10 August 2015, the School Teachers’ Pay and Conditions Order 2015 (SI 2015/1582) was laid before Parliament and statutory guidance on pay and conditions for school teachers in England and Wales was published. The Order, which applies to teachers in maintained schools in England and Wales, gives effect to the school teachers’ pay and conditions document 2015 with effect from 1 September 2015, for the purpose of determining teachers’ pay and conditions. In addition, the DfE has published statutory guidance on school teachers’ pay and conditions, which accompanies the Order.
- On 11 September 2015, the Department for Education (DfE) published a consultation on a draft set of regulations to change the arrangements for school and early years finance in England. If implemented, the draft regulations will put in place new finance arrangements for local authorities to set school budgets for the financial year 2016 – 2017 and make changes to finance arrangements such as the expenditure that a local authority can incur from its non-schools education budget. The regulations will come into force on 1 January 2016 and be applied for the financial year 2016 -17.
- Two sets of regulations dealing with the governance of schools in England and Wales came into force on 1 September 2015:
- School Governance (Federations) (England) (Amendment) Regulations 2015 (SI 2015/1554). These regulations amend regulation 46 of the School Governance (Federations) (England) Regulations 2012 (SI 2012/1035) to provide that an application by a federated school to become an Academy must be made by at least 50% of the prescribed description of governors set out in regulation 46(3) (including parent governors and staff governors).
- Government of Maintained Schools (Change of Category) (Wales) Regulations 2015 (SI 2015/1521). These regulations set out how a new instrument of governance should be made by a school changing its category as provided for under the Schools Standards and Organisation (Wales) Act 2013. They also provide for the reconstitution of a governing body where a school changes category and when certain governors will be allowed to remain in office.
Government guidance and policy statements
Personal, social, health and economic education
- On 15 September 2015, the House of Commons Library published a briefing paper outlining the requirements for schools in England to teach personal, social, health and economic education (PSHE) (a non-statutory subject). The briefing paper covers the position of PSHE on the curriculum, the proposals for PSHE to be made a statutory subject and the publication of a recent Private Members Bill, the Personal, Social, Health and Economic Education (Statutory Requirement) Bill 2015-16. If the Bill is enacted, the teaching of PSHE incorporating sex and relationship education (SRE) will become a statutory requirement for schools.
- On 16 July 2015, the DfE published a response to the recommendations set out in the Life lessons: PSHE and SRE in schools report. In relation to the report’s recommendation that there is a need to incentivise schools to raise the quality of PSHE (personal, social and health education) and SRE (sex and relationships education), the government has introduced a PSHE quality mark accreditation which will require schools to provide evidence of the quality of their teaching in this area. The government’s response demonstrates that it does not feel that it is necessary to rename SRE “Relationships and Sex Education”, although schools are free to describe lessons covering these areas in whatever way is most appropriate for them.
Free schools and Academies
- On 14 September 2015, the House of Commons Library published a revised briefing paper on the Education and Adoption Bill 2015-16. The revisions reflect the Bill’s second reading and the Commons’ committee stages when the discussions centred on the definition of “coasting school”, and the interventions available to the Secretary of State and new regional schools commissioners to drive improvement, including converting them to Academies. The government has agreed to extend similar provisions on interventions in coasting schools to Academies through new and revised funding agreements and confirmed that it intends to consult on the regulations relating to coasting schools.
- On 15 August 2015, the Department for Education (DfE) published updated statutory guidance on the constitution of governing bodies of maintained schools in England. All governing bodies were required to be constituted under the School Governance (Constitution)(England) Regulations 2012 (SI 2015/1034) or the School Governance (Federations)(England) Regulations 2012 (SI 2012/1035) as appropriate, by 1 September 2015. The guidance, which explains the arrangements for the constitution of governing bodies of local authority maintained schools including their size, membership and skills, highlights the direct impact that decisions about the constitution of the governing body have on the governing body’s ability to provide effective governance and contribute to the success of the school. On 31 July 2015, the DfE published an updated guide on the free schools application process for groups wishing to open schools in September 2016. In addition to explaining what free schools are and the key considerations that those groups interested in applying to set up a free school should have in mind, it explains how applications are assessed and the interview process.
- On 6 July 2015, the Education Funding Agency (EFA) published an updated template form to be used by local authorities to request that the Secretary of State for Education direct an Academy to admit a looked after child. The form, which sets out all of the information that the EFA will require in order to consider a request to direct admission to an Academy of a looked after, or previously looked after, child, should be used in conjunction with the School Admissions Code. It emphasises that in most cases the EFA would expect local authorities and Academies to reach an agreement between themselves and a request to the Secretary of State to direct an Academy to admit a child should be a last resort.
Improving educational outcomes of disadvantaged children
- On 6 July 2015, the House of Commons Library published a briefing paper on the measures in place that aim to improve educational outcomes for disadvantaged children in England and explains how these measures have developed since 2010. The briefing paper includes information on the pupil premium, free school meals and the education of children looked after by local authorities.
- On 2 July 2015, the DfE published a policy statement on the Childcare Bill 2015-16. The policy statement sets out further details about the government’s intentions behind the Bill and gives more detail on the requirement in clause 3 for local authorities to publish information about the childcare and other services in their area, through an amendment to section 12 of the Childcare Act 2006. The policy statement says that further detail will be set out in regulations, including how this data should be published and the frequency of publication.
Tackling extremism
- On 1 July 2015, the DfE published new advice and social media guidance for schools and childcare providers that deals with the prevention of radicalisation and extremism. The guidance relates to the “prevent duty” under the Counter-Terrorism and Security Act 2015. It is intended to clarify how schools and childcare providers should carry out this prevent duty, but is not obligatory. For more information, see Opinion, The Prevent duty: local authority implications.