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Education law quarterly digest (May – July 2014)

This is the first 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 May to July 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:

  • A case challenging the Secretary of State’s decision to make a failing comprehensive school the subject of an academy order.
  • Recent legislative developments.
  • Government guidance.
  • Consultations and consultation responses.
  • Recent education law developments in Wales.

High Court rejects challenge to an enforced academisation order (R (Governing Body of the Warren Comprehensive School and another) v Secretary of State for Education)

Following a decision of the Secretary of State (SoS) to make an academy order and appoint an Interim Executive Board (IEB) to a failing comprehensive school, the High Court has dismissed a judicial review challenge to the SoS’s decision. The grounds of challenge were that the decisions to convert the school into an academy and to appoint an IEB were flawed, as they:

  • Were based on a material error of fact (which is that sponsored academies are more likely than maintained schools to deliver improvement progress in schools in need of intervention).
  • Failed to have regard to the level of disruption that would arise.

All of the claimant’s challenges failed on the evidence. The High Court noted that the SoS had appreciated that there would be some disruption to the school during the academy conversion process of academy but that this could be mitigated. The fact that the High Court found that the SoS was entitled to conclude that the school’s persistent under-performance meant that steps should be taken without further delay, even though there was an available alternative formal partnership arrangement to improve the school, suggests that the courts will be reluctant to interfere with any academy orders that the SoS makes under the Academies Act 2010. For more information on the Act, see Practice note, Academies under the Academies Act 2010: overview.

Legislative developments

On 11 June 2014, the Special Educational Needs and Disability Regulations 2014 were laid before Parliament. These regulations, which implement the special educational needs and disability reforms introduced through the Children and Families Act 2014, will come into force on 1 September 2014 and are part of the reforms that aim to provide a joined up approach to special educational needs across education, health and care services from birth to age 25.

On 16 June 2014, the Requirements for School Food Regulations 2014 were made. These regulations, which will come into force on 1 January 2015, set out the requirements that must be complied with where a school lunch is provided to registered pupils at a maintained school or pupil referral unit, or any other person on the school premises. The regulations  also provide that free drinking water must be provided. The government has also published guidance on standards for school food in England. The guidance, which is intended to help those who are responsible for planning and providing food in schools, will be reviewed in January 2015 when the revised school food standards regulations come into force.

On 1 July 2014, the Teachers’ Disciplinary (Amendment) (England) Regulations 2014 were laid before Parliament. These regulations, which will come into force on 1 September 2013 amend the eligibility criteria for members of the teacher professional conduct panel involved in the prohibition order procedure, clarify the limitations on the evidence that witnesses in teacher misconduct hearings can be required to provide and confirm there is a requirement to serve notice of a prohibition order on any person who has engaged a teacher who is subject to such an order to carry out teaching work.

On 3 July 2014, the Local Authority (Duty to Secure Early Years Provision Free of Charge) (Amendment) Regulations 2014 were laid before Parliament. These amend the Local Authority (Duty to Secure Early Years Provision Free of Charge) Regulations 2013 and reflect changes introduced by the Children and Families Act 2014. In particular, the 2014 regulations amend the 2013 regulations to include children who have an Education, Health and Care plan and children and who are no longer looked after as a result of a child arrangements order, in the description of children who are entitled to free early years provision. The 2014 regulations will come into force on 1 September 2014.

Government guidance

On 20 June 2014, the Education Funding Agency (EFA) published guidance on its procedure for dealing with complaints about academies. The guidance sets out the responsibilities of academies in connection with handling complaints and the types of complaints that they will investigate. It will not investigate complaints about the quality of education or leadership.

On 23 July 2014, the Department for Education (DfE) published Promoting the education of looked-after children. The statutory guidance, which details local authorities’ duties to promote the educational achievement of the looked-after and eligible children for whom they are responsible (including children placed out-of-authority) under section 22(3A) of the Children Act 1989, must be followed unless there are exceptional circumstances that justify departing from it.

Consultations and consultation responses

The DfE has published a number of consultations between May and July 2014, including consultations on:

  • Promoting British values in independent schools, academies and free schools.
  • The early years pupil premium and funding for two year olds. The intention is that the premium, which is likely to be introduced in April 2015, will give additional resources to early years providers that take on disadvantaged children aged three and four.
  • Performance hours and breaks under the Children (Performances) Regulations 1968, with a view to simplifying and streamlining the rules about the times that children can take part in performances requiring a local authority licence and the breaks and time off they must have.
  • Proposed revisions to the School Admissions Code 2012 and its accompanying regulations. These will allow all state-funded schools to give priority in their admission arrangements to children who are eligible for pupil premium or service premium funding and to allow admission authorities of primary schools to give priority in their admission arrangements to children eligible for the early years pupil premium, pupil premium or service premium who attend a nursery which is part of the school. The proposal will also enable the parents of summer born children who choose not to send their children to school until they are of compulsory school age to request that the child is admitted to reception instead of year one.

On 20 June 2014, the DfE published a summary of responses that it received to its consultation on powers to delegate children’s social care functions to third party providers. Given the concerns expressed by a majority of the respondents that the proposals could lead to “privatisation” or “profit making” by these providers in relation to children’s services, the government has decided to amend the draft regulations that were originally consulted on to ensure that the extended range of functions can only be delegated to non profit-making organisations. These are expected to be laid before Parliament in summer 2014.

Educational developments in Wales

In Wales, the Welsh Government:

  • Has made the Education (Wales) Act 2014 (Commencement No 1) Order. The Order brought into force on 14 July 2014, those parts of the Education (Wales) Act 2014 relating to the setting of term and holiday dates and times of school sessions for the school year 2016/17 and amended sections 25 and 26 of the School Standards and Organisation (Wales) Act 2013 (which sections deal with the power of Welsh Ministers to intervene in the exercise of a local authority’s education functions).
  • Published a consultation on draft guidance for schools on head teacher capability. The proposed guidance, which will provide specific guidance on head teachers’ capability, focuses on the performance of head teacher, and covers the informal stage before any action is taken, the formal stage where a governing body panel will consider the issues and the final stage concerning disciplinary and dismissal procedures.
  • Published new guidance on Welsh school transport. The guidance emphasises the importance of ensuring the safety of children who walk to school and therefore includes a chapter on the risk assessment of walked routes to schools.

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