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 November 2014 to March 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 in both England and Wales.
- Government guidance.
Recent decisions
Council granted injunction to restrain publication of information about current 11 Plus exam paper (Warwickshire County Council v Matalia)
In this case, Warwickshire County Council was granted an injunction by the High Court following an alleged breach of confidence by an individual who published information on a website regarding details of the current 11 Plus exam taken by pupils seeking to apply to grammar schools in the county. This decision was particularly interesting because the High Court chose to grant an injunction on the basis of breach of confidence rather than under section 222 of the Local Government Act 1972 and provisions of the Education Act 1996 and School Standards and Framework Act 1998.
Variation clause in teacher’s contract did not permit school to impose unilateral change (Hart v St Mary’s School (Colchester) Ltd)
In this decision, the EAT held that a part-time teacher suffered a repudiatory breach of contract when her school imposed a change to her working hours that required her to spread her hours over five days, rather than three. The new hours, which were prompted by a change in the school timetable, were imposed in reliance on a contractual provision that required the teacher to work at such times as necessary, in the reasonable opinion of the headteacher, for the proper performance of her duties. There was a further clause which stated that working hours for part-time staff may be “subject to variation, depending upon the requirements of the school timetable”.
The EAT found that the employment tribunal had misconstrued the contract of employment as conferring a unilateral power of variation on the school. The variation clause was not sufficiently clear or unambiguous to allow for unilateral variation. The EAT also overturned the tribunal’s alternative finding that the teacher did not resign in response to any repudiatory breach, and remitted that issue.
Council entitled to withdraw flexible school transport that enabled a disabled pupil to attend after-school club (P v East Sussex County Council)
In this case, the High Court dismissed an application for judicial review challenging a council’s decision to withdraw flexible transport arrangements for a pupil with special educational needs to enable her to attend medical appointments and after-school clubs. The court held that the duty to provide transport under section 508B of the Education Act 1996 related to the compulsory part of the school day only. In addition, the council had complied with the public sector equality duty under section 149 of the Equality Act 2010 in making the decision to withdraw the flexible arrangements.
Local authorities considering changing their school transport policies are also likely to be interested in a recent Local Government Ombudsman decision. On 8 January 2015, the LGO published its report on a complaint concerning changes Birmingham City Council had made to its school transport funding policy. These had caused the complainant’s son (who had been offered free home-to-school transport until July 2017) to suffer injustice.The council was held to be at fault as its admissions booklet, although warning of changes to the policy, did not state that these would impact upon existing users. The clear statement that the complainant’s son was entitled to free home to school transport until 2017 had given rise to a legitimate expectation that this commitment would be honoured. Local authorities should ensure that, when changing their school transport policies, they are clear how any changes will affect existing users.
Dyslexic pupil should not have been compared against the population at large when determining whether she was disabled (PP and SP v Trustees of Leicester Grammar School)
The Upper Tribunal, in allowing an appeal against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber) (FTT), held that the FTT had erred in law by failing to apply the correct test when determining whether the claimant’s impairment was substantial. The claim had been brought by a pupil at a selective grammar school with dyslexia and Mears Irlen syndrome who required certain adjustments to be made for her in public exams. The FTT had not compared what she could do with what she would be able to do without the impairment. Although the Upper Tribunal declined to decide the case on its facts, the decision provides useful guidance when considering whether an impairment has a substantial effect on a claimant, particularly when considering impairments in pupils who perform comparatively well at school but at a level below that which they could attain but for the impairment.
No power for local authority to grant a general exemption for teacher who failed to complete the statutory induction period (Mosekari v London Borough of Lewisham)
The High Court has held that a local authority did not have the power to grant an exemption from the requirement that a teacher complete the mandatory statutory induction period, even though the claimant teacher had been employed at a school in the area for 11 years. It rejected the claimant’s assertion that the local authority, in failing to recognise that his statutory induction period had been completed, was acting irrationally and perversely. It did so on the basis that the statutory requirements for the training of teachers was necessarily stringent to ensure that teachers, tasked with the education of children, are properly trained and assessed.
Legislative developments
England:
On 3 November 2014, the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) (Amendment) Regulations 2014 were laid before Parliament. The regulations, which came into force on 19 December 2014 at the same time as the School Admissions Code 2014, amend the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012. In particular, they amend the frequency with which an admission authority is required to consult to at least once every seven years, where they have not consulted in the previous six years and amend the dates by which an admission authority must consult.
On 3 December 2014, the Education (Provision of Full-time Education for Excluded Pupils) (England) (Amendment) Regulations 2014 were made. The effect of the Regulations, which amend the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 is that, when making arrangements for providing suitable full-time education for a pupil of compulsory school age who is excluded for a fixed period on disciplinary grounds, consecutive periods of exclusion are treated as one continuous period of exclusion.They also provide that the “relevant day” as defined in regulation 3(3) and 4(3)(b) of the 2007 Regulations (the day from which suitable full-time education must be provided for an excluded pupil) is the sixth consecutive school day of exclusion, regardless of whether the pupil has been excluded for one or more fixed periods.
On 28 January 2015, the Special Educational Needs and Disability (Detained Persons) Regulations 2015 were laid before Parliament. The Regulations, which came into force on 1 April 2015, require local authorities to have regard to facilitating the development of detained children and young people to achieve their best educational and other outcomes and to develop Education, Health and Care Plans where necessary, which deal with young people’s post-detention needs and provision.
On 24 February 2015, the:
- Special Educational Needs and Disability (Amendment) Regulations 2015 were made and came into force on 1 April 2015. The regulations, which amend the Special Educational Needs and Disability Regulations 2014, clarify that the restriction on the disclosure of Education, Health and Care plans applies to local authorities and sets out the appeal rights that must be included in a notice to a child’s parent and a young person following a review. They also amend the FTT’s powers and the time limits for complying with orders.
- Special Educational Needs and Disability (First-tier Tribunal Recommendation Power) (Pilot) Regulations 2015 were made and came into force on 1 April 2015. The regulations provide that, in relation to the pilot local authorities listed in the Schedule to the regulations, the FTT may make recommendations in connection with certain health and social care matters within an Education, Health and Care plan. In particular, when the FTT makes a recommendation in connection with health care needs or health care provision, it must send the responsible commissioning body a copy of the recommendation
On 23 March 2015, the Special Educational Needs (Code of Practice) (Appointed Day) Order 2015 was made. The Order brought into force, on 1 April 2015, the revised Special Educational Needs and Disability Code of Practice: 0 to 25 years. The revised code provides guidance on various issues including the procedure and time scales for assessing a detained person’s education, health and care needs and for developing a plan and the mediation and appeals procedures which are available to the detained person or their parents.
On 26 March 2015, the School Staffing (England) (Amendment) Regulations 2015 were laid before Parliament. The Regulations, which will come into force on 29 June 2015, amend the School Staffing (England) Regulations 2009 to reflect changes made by the Protection of Freedoms Act 2012 to the circumstances in which the Disclosure and Barring Service can be asked to carry out checks. In particular, they clarify that an enhanced criminal record certificate will need to be obtained where the proposed new member of staff will be regularly responsible for supervising children or will regularly have opportunities for contact with children at the school.
Wales:
On 6 February 2015, the Education Workforce Council (Main Functions) (Wales) Regulations 2015 were laid before the National Assembly for Wales, They specify the work that may be carried out in schools by qualified teachers and other prescribed people and provide for the establishment of investigating committees to determine whether to pursue proceedings against registered persons where they are guilty of unacceptable professional conduct or serious professional incompetence or have been convicted of a relevant offence. The Regulations revoke the Education (Specified Work and Registration) (Wales) Regulations 2010.
Government guidance
On 7 November 2014, the Department for Education (DfE) published non-statutory guidance for schools (including maintained schools academy trusts and free schools) on buying collaboratively in order to achieve efficiencies. The guidance explains what collaborative procurement is and why schools should consider working in collaboration including the risks associated with collaboration. It also sets out a number of tips for enabling collaborative procurement, such as considering pairing with schools with similar spend and ensuring that a good specification has been agreed.
On 17 November 2014, the DfE published a non-statutory advice note on cyberbullying for headteachers and school staff. The advice adds to the DfE’s existing guidance on preventing and tackling bullying and its advice for schools on supporting children and young people who are bullied. It applies to to all types of school, including maintained and independent schools, and contains advice for staff on how to avoid becoming victims of online abuse themselves and how to react to online abuse.
On 7 November 2014, the DfE and the Education Funding Agency published updated guidance on the protection of school playing fields and public land. The guidance, which is non-statutory, covers the legal framework under section 77 of the School Standards and Framework Act 1998 and the Academies Act 2010 and the Secretary of State for Education’s policy to protect school playing fields and land for academies. It also sets out the application criteria which schools must satisfy in order to dispose or change the use of school land (including school playing fields) and details how consent should be applied for and how applications will be assessed.
On 19 December 2014, an updated version of the School Admissions Code came into force in England under the School Admissions Code (Appointed Day) Order 2014. The Code is statutory guidance for admission authorities, governing bodies, local authorities, schools adjudicators and admission appeals panels and the updates to the Code aim to clarify it and to improve the fair and open allocation of school places.
On 2 February 2015, the DfE removed from its website its updated statutory guidance on exclusion from maintained schools, academies and pupil referral units in England. The guidance, which had been published on 9 December 2014 and applied to exclusions from 5 January 2015, was removed to address some issues with process. The 2012 exclusion guidance remains in force.
On 6 February 2015, the DfE published guidance on child performance and activities licensing legislation in England which is aimed at those who engage children for performances, parents and carers, local authorities and magistrates’ courts. The guidance, not only covers the changes introduced by the Children (Performances and Activities) (England) Regulations 2014 (see Legal update, New regulations made governing the licensing of public performances by children), but explains the licensing regime for children taking part in performances and activities in England, including how a licence should be applied for and on what grounds an application can be rejected. It also sets out the general requirements and restrictions applicable to all licensed performances or activities.
On 26 February 2015, the DfE published statutory guidance on disqualification under the Childcare Act 2006 and who will be unable to provide relevant childcare provision as a result. The guidance, which replaces the existing supplementary advice issued on 10 October 2014, sets out the responsibilities of local authorities and schools under the disqualification regime and who is covered and where staff should apply to Ofsted to have their disqualification waived.
Following the Counter-Terrorism and Security Bill 2014-15 receiving Royal Assent on 12 February 2015, the Home Office published guidance on 12 March 2015 which includes sector-specific guidance for local authorities, schools, the health sector, prisons and the police. The guidance contains a statement that local authorities should establish or use an existing local multi-agency group to agree risk and co-ordinate terrorism prevention activity: this could be a Community Safety Partnership, but other multi-agency forums may also be appropriate.