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Education law quarterly digest (February 2016 – April 2016)

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 February 2016 to April 2016. 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 consultations.
  • Government guidance and policy statements.

Recent case law

LGO: Council to review whether children have lost out on place at preferred school after complaint about schools allocation process upheld (LGO: Investigation into a complaint against Bolton Metropolitan Borough Council)

On 26 February 2016, the Local Government Ombudsman published a report into a complaint by a parent against the admission authority, Bolton Metropolitan Council, about the way that a school admission appeals panel had conducted her appeal, after her son failed to get a place at her preferred school when there was a triple tie for the last available place. The LGO found the council was at fault.

School found to have breached notification provisions under Education (Educational Provision for Improving Behaviour) Regulations 2010 (R (HA) v Governing Body of Hampstead School)

On 18 February 2016, the High Court upheld a challenge by the claimant (a 16-year old boy) to his school’s decision to transfer him to off-site educational provision and to its failure to keep that decision under review as required by regulation 4 of the Education (Educational Provision for Improving Behaviour) Regulations 2010. It did so on the basis that the school had failed to comply with the statutory requirement to formulate and communicate the reasons for the transfer to off-site educational provision and had failed to keep the claimant’s placement under review.

The case is a reminder for the governing bodies of maintained schools, who are considering exercising the power that they have to direct a pupil off-site for education to improve their behaviour, of the importance of complying with the statutory process. It is essential that parents (and also the local authority where the pupil has a statement of special needs) are given clear information about why the placement off-site is being made, including an assessment of why what is proposed will improve the pupil’s behaviour, and why, when, where and how it will be reviewed. Parents must be involved in the review. Reviews should be decided on a case-by-case basis and be frequent enough to provide assurance that the off-site education is achieving its objective and the pupil is benefiting from it.

Legislative developments

The following legislative developments took place between February 2016 and April 2016:

  • On 17 March 2016, the government published its education White Paper, Educational Excellence Everywhere setting out its vision for schools in England and its plans for the next five years. The White Paper sets out the seven elements that the government intends to pursue in order to deliver educational excellence everywhere.
  • On 16 March 2016, the Education and Adoption Bill 2015-16 was enacted to become the Education and Adoption Act 2016.
  • On 25 February 2016, the School Governance (Constitution and Federations) (England) (Amendment) Regulations 2016 were laid before Parliament. Regulations 1 and 2 came into force on 18 March 2016, and regulation 3 will come into force on 1 September 2016.
  • On 20 January 2016, the Local Area Referendum (Disposal of School Playing Fields) Bill 2015-16 was published. The Private Members Bill had originally been introduced to Parliament on 29 June 2015. It started its second reading on 22 January 2016.

Government consultations

In England, the following consultations have been published:

  • On 24 March 2016, the Department for Education (DfE) published its response to the consultation on proposals for intervening in failing, underperforming and coasting schools and how the new measures in the Education and Adoption Bill 2015-16 should work in practice.
  • On 21 March 2016, the Education Committee launched an inquiry into the performance, accountability and governance of Multi-Academy Trusts (MATs). The committee has invited written submissions addressing the role of MATs in the context of other intermediate structures operating between Whitehall and individual schools, including Regional Schools Commissioners, the current landscape of MATs, including their number, size, and geographical coverage, and the balance of decision-making at the individual school level and at the chain level, and the appropriateness of formal governance structures employed.
  • On 7 March 2016, the DfE published a consultation on its proposals to introduce a national funding formula for schools. The consultation, which is the first of two planned consultations, seeks views on the principles that underpin the formula and the pupil characteristics and school factors that have been included in the formula.

Government guidance and policy statements

On 24 March 2016, the DfE updated its statutory guidance on schools causing concern to reflect the new intervention powers for the Secretary of State introduced by the Education and Adoption Act 2016 where a maintained school is failing and to challenge schools that are coasting.

On 16 March 2016, the House of Commons Library published a briefing paper on the rules relating to the setting of school hours and term times. Although the note focuses on the position in England, it includes information on the rules relating to the rest of the UK.

On 8 March 2016, the DfE published updated guidance on admissions and referral arrangements for free schools. The updated guidance has added new special free school admissions guidance and free schools admission and referral templates.

On 12 February 2016, the DfE updated its guidance, Establishing a new school: free school presumption. The guidance, which is intended for local authorities and new school proposers and sets out how the free school presumption process should operate in practice, has been updated to include the addition of a local authority specification form, a proposer application form and model criteria for new schools.

On 11 February 2016, the DfE announced on its website that it was in the process of reviewing its statutory guidance on organisation changes to local authority maintained schools, including school closure.

On 8 February 2016, the House of Commons Library published a briefing paper on the support available in England to children and young people in England with special educational needs.

On 2 February 2016, the DfE published a suite of template documents for schools to adapt when running a procurement process. The documents include example contracts and terms and conditions for both goods and services contracts, example timescales for schools planning a procurement process for goods or services and an exemplar bid evaluation scoring summary spreadsheet, to help school business managers compare suppliers’ bids during a procurement process.

On 1 February 2016, the DfE published guidance on intervention and accountability in under-performing or failing non-maintained special schools.


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