REUTERS | Yuriko Nakao

Education law quarterly digest (August – October 2014)

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 August to October 2014. 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 education decisions.
  • Changes to the special educational needs regime.
  • Government guidance.

Recent education decisions

The question before the High Court in this case was whether the council, or the school,  had the right to subject the claimant to disciplinary action. The claimant, who was employed by the council in 1992 as a full-time assistant teacher at a maintained community school, had been released from teaching to carry out her union activities. That arrangement continued until her suspension in 2014 for breaches in connection with the council’s behaviour policy (unrelated to the claimant’s teaching).  The High Court rejected the claimant’s submission that the authority had no power to suspend her, or take any disciplinary action against her as she should be subject to the school’s disciplinary policy. It did so on the basis that the School Staffing England Regulations 2009 and the Education (Modification of Enactments Relating to Employment) (England) Order 2003, which reflect the reality that school staff work under the management of the governing body, rather than the local authority, did not remove the council’s right to discipline the claimant. Therefore, the council was entitled to suspend her.

Local authorities may want to check that their school transport policies are clearly drafted and easy to understand following the LGO’s decision criticising a local authority for refusing to continue funding school bus passes for two sisters when they moved to another house in the same village. Having previously been eligible for assistance with their travel expenses to their faith school, the sisters on moving were informed by the council that they would no longer receive assistance despite catching the same bus from the same stop. The council’s reason for the change was that, under its school transport policy, the family were considered to be new applicants for funding and were now liable to pay. The family’s appeal of the decision was rejected, despite a lack of consideration of their financial circumstances.

In an investigation of the complaint, the LGO concluded that the council’s school transport policy was unclear and that the council had failed to conduct a proper review of whether the move could be considered to be a significant change requiring funding to be stopped. In addition, the policy did not afford the council the flexibility to take into account the financial circumstances of the family. The LGO therefore recommended that the council:

  • apologise to the family and review its decision giving proper consideration to the financial circumstances of the family before reaching another decision;
  • consider reimbursing the family the costs of the bus passes that they had already paid for; and
  • review its school transport policy and procedure.

Changes to the Special Educational Needs regime

On 1 September 2014, the new system of support for children and young people in England with special educational needs and disability (SEND) came into effect, leading to the introduction of several new provisions and pieces of guidance, including guides on the new code of practice for social care professionals, schools and alternative provision settings.

Also on 1 September 2014, the Special Educational Needs (Miscellaneous Amendments) Regulations 2014 came into force. A new regulation 4A provides that a local authority is not required to prepare a personal budget for specified special educational provision where the amount is a notional amount of a larger sum and it cannot be disaggregated without having an adverse impact on other services, or where it would not be an efficient use of services. Also on the same date, the Special Educational Needs (Consequential Amendments to Subordinate Legislation) Order 2014 came into force. The Order amends secondary legislation to reflect the changes made by Part 3 of the Children and Families Act 2014 to Part 4 of the Education Act 1996, meaning that, in England, from 1 September 2014, a child with special educational needs will be assessed for an education, health and care plan.

On 22 October 2014, the DfE issued a consultation on the draft Special Educational Needs and Disability (Detained Persons) Regulations 2015 and on revisions to the SEN and Disability Code of Practice: 0-25 years (England only) to reflect the needs assessments of a detained young person and the preparation of an Education, Health and Care plan for such an individual.

Government guidance

On 8 August 2014, the School Teachers’ Pay and Conditions Order 2014 was laid before Parliament. The Order, which came into effect on 1 September 2014, gives effect to the school teachers’ pay and conditions document 2014 for the purpose of determining teachers’ pay and conditions and is accompanied by statutory guidance.

On 8 August 2014, the Education Funding Agency published the Academies Financial Handbook 2014. The handbook sets out the financial management, control and reporting requirements which applies to Academy trusts and free schools and provides information to enable academy board members and accounting officers understand their duties.

On 28 August 2014, the DfE published updated membership rules for risk protection arrangement (RPA) for Academy trusts.  The RPA, which is a voluntary arrangement to which all academy trusts and multi-academy trusts (including free schools) may choose to opt in, is a mechanism through which the cost of risks that materialise from 1 September 2014 will be covered by government funds, although it is not an insurance scheme.

Every maintained school should have a whistleblowing procedure in place and, in order to assist schools, the DfE published guidance on 28 August 2014 on what they should do to ensure they have a policy that protects staff members who report colleagues they believe are doing something wrong or illegal, or who are neglecting their duties.

On 1 September 2014, the DfE published updated guidance on supporting pupils at school in England with medical conditions. The guidance contains both statutory and non-statutory advice on the duty that governing bodies of maintained schools, proprietors of academies in England and management committees of PRUs have under section 100 of the Children and Families Act 2014 to make arrangements for supporting pupils at their school with medical conditions.

On 10 September 2014, the DfE and the National College for Teaching and Leadership published a revised governors’ handbook. The handbook, which is intended for governors, headteachers and governing body clerks in maintained schools and academies in England, outlines the core role and functions of school governing bodies and summarises the specific legal duties of governing bodies.

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