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Education law quarterly digest (October 2015 – January 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 October 2015 to January 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

Secretary of State for Education’s assertion that Religious Studies GCSE will fulfil state’s religious education legal obligations found to be unlawful (R (Fox and others) v Secretary of State for Education)

On 25 November 2015, High Court allowed a judicial review application against an assertion by the Secretary of State for Education (SoS) that newly issued GCSE Religious Studies subject content was “consistent with the requirements for the statutory provision of religious education in current legislation”. Three humanists and their children had brought a claim challenging the Education Secretary’s decision to not include non-religious world views in the subject content.

The High Court upheld the challenge on the basis that the SoS had made an error of law in her interpretation of the education statutes. Although the case only concerned maintained schools, the decision is likely to be of interest to local authorities considering their existing “agreed syllabus” and how the study of non-religious beliefs should be incorporated into this.

Schools Adjudicator: oversubscription criteria giving priority to sons of old boys breached School Admissions Code (Determination ADA 3048)

On 6 November 2015, the Office of the Schools Adjudicator (OSA) held that the admission arrangements of an academy trust which gave priority in its oversubscription criteria to the sons of old boys of the school did not comply with paragraphs 14 and 1.8 of the School Admissions Code. The OSA held that the criterion was unfair as it was based on the decisions and circumstances of previous generations and not on the current set of applicants. Further, the criterion could not be met by the sons of first generation immigrants or boys from other families who had moved into the area. The OSA also found that the schools over-subscription criteria breached the code in a number of other respects and required the admission authority to revise its admission arrangements within the time-scales specified in the determination.

The decision is a reminder that under the terms of the academy agreement between the academy trust and the Secretary of State require that admissions policies and arrangements for the academy must comply with the law on school admissions.

Legislative developments

The following legislative developments took place between October 2015 and January 2016:

  • On 22 December 2015, the Deregulation Act 2015 (Commencement No 4) Order 2015 was made, bringing into force a provision of the Deregulation Act 2015 aimed at reducing burdens on schools. Article 2 of the Order, which came into force on 1 January 2016, removed the requirement contained in sections 110 and 111 of the School Standards and Framework Act 1998, for the governing bodies of certain schools in England and Wales to adopt home-school agreements setting out the school’s aims, values, responsibilities and expectations of pupils and parents
  • On 9 December 2015, the School and Early Years Finance (England) Regulations 2015 were made. The regulations were made under Part 2 of the School Standards and Framework Act 1998 and came into force on 7 January 2016. They provide how local authorities should set their education budgets and set out the basis on which local authorities allocate funding from the individual schools budget to maintained schools and to private, voluntary and independent providers of free early years provision (relevant early years providers) through a locally determined formula.
  • On 30 October 2015, the Children (Performances and Activities) (Wales) Regulations 2015 came into force. The regulations, which deal with the application and licensing process in Wales in relation to performances and activities covered by section 37 of the Children and Young Persons Act 1963, cover licences granted by local authorities in Wales relating to children resident in Wales and children who are not resident in Wales but seek to take part in performances or activities within Great Britain.

Government consultations

In England, the following consultations have been published:

  • On 22 December 2015, the Department for Education (DfE) published a consultation on its plans to change parts one and two of its Keeping children safe in education guidance. The consultation submits proposed draft guidance for input from school and college staff, governing bodies, proprietors and management committees, children’s services departments, social care professionals, teaching unions and safeguarding practitioners.

The consultation document also highlights the key changes from the existing guidance. These include adding a new section on online safety, reinforcing the importance of part one of the guidance as a starting point for all staff in schools and colleges to read and understand; and emphasising further the importance of data sharing and the fact that safeguarding is everyone’s responsibility. It also highlights the key changes from the existing guidance.

  • On 7 December 2015, the DfE published a consultation on the government’s proposals on the rights of parents and childcare providers to request wraparound and holiday childcare, that is, childcare provided by schools outside of normal school hours such as breakfast or after school clubs. All schools are encouraged to make their facilities available for use by the wider community, and are able to charge for the provision of extended and community services such as wraparound and holiday childcare should they choose to do so. The consultation, which is still open, invited views on how maintained schools, academies and free schools should respond to a request from parents that they consider establishing wraparound or holiday childcare.
  • On 5 November 2015, the Education Funding Agency (EFA) published a consultation on a proposed change to the statutory guidance, Scheme for financing schools. Local authorities are required to publish schemes for financing schools setting out the financial relationship that exists between them and the schools that they maintain. The statutory guidance details the provisions that such schemes must, should or may include. Section 6.2 of the guidance lists the main circumstances in which a local authority can charge school budgets for agreed services and relates only to maintained schools. The EFA is proposing to extend the list so that a local authority, where it is the admissions authority and has to provide an admission appeal service, can include admission appeals as one of the agreed services it can charge school budgets for.
  • On 21 October 2015, the DfE published a consultation seeking views on the government’s proposals (announced in the Queen’s Speech 2015) to strengthen its powers to intervene in underperforming or “coasting” schools. The proposals, which are included in the Education and Adoption Bill 2015-16, are designed to speed up the process by which failing schools become sponsored academies. The consultation invites views from stakeholders, including local authorities, schools, teachers and young people, on how the DfE will define which maintained schools are eligible for intervention and how the DfE proposes to identify coasting schools.

In Wales, the following consultations have been published:

  • On 17 December 2015, the Welsh Government (WG) published a consultation on revisions that it proposes making to its non-statutory Inclusion and Pupil Support guidance. The revisions have been proposed in response to the recommendations made in the Children, Young People and Education Committee’s inquiry into attendance and behaviour and the University of Edinburgh’s evaluation of education provision for children and young people educated outside of the school setting. The consultation, which closes on 11 February 2016, sets out a refreshed version of the guidance, which the WG wishes to update to reflect a number of legislative and policy changes since it was originally published in 2006. Guidance on elective home education and on the use of attendance codes is to be issued separately from the guidance.
  • On 9 November 2015, the WG published a consultation on harmonising school terms dates for schools in Wales in 2017/18. The Education (Wales) Act 2014 allowed the Welsh Minister for Education and Skills to harmonise term dates and to direct local authorities and governing bodies of voluntary aided and foundation schools to comply with these. The consultation proposed adopting the term dates set by all authorities in South Wales, Carmarthenshire, Ceredigion, Anglesey and Pembrokeshire. This group favoured starting the first day of the new school year in 2017 on 4 September and ending the school year on 24 July 2018.

Government guidance and policy statements

During the period covered by this digest, the House of Commons Library has published the following briefing papers:

  • On 11 January 2016, a paper on school admission in state funded mainstream schools in England. The document provides an overview of the legal framework, the process involved in applying for a school place in the normal round and how admission authorities rank applicants. It also includes key findings in the Schools Adjudicator’s annual report on admissions for the period September 2014 to August 2015, published on 17 December 2015.
  • On 25 November 2015, a paper on school funding and the pupil premium.  The document covers the policy behind the introduction in England of the pupil premium in 2011 to provide additional school funding for certain children. It also looks at how the pupil premium policy has developed over time and includes information on how pupil premiums are paid to local authorities, how pupil premiums are passed on to schools and the effectiveness of the pupil premium.
  • On 10 November 2015, a  paper on religious education (RE) in schools in England. The document covers what is taught in RE and particularly how the subject is taught in different types of school. It also includes information on the right to withdraw a child from RE and collective worship in schools as provided for by section 71 of the School Standards and Framework Act 1998.
  • On 22 October 2015, a paper providing an overview of the duties on both state-funded and independent schools to safeguard children from extremism, by countering extremist ideology and the potential for pupils to be radicalised.

On 6 January 2016, the DfE published new guidance for schools on setting up or reviewing complaints procedures. The guidance applies to local authority maintained schools and local authority maintained nursery schools in England and replaces the school complaints toolkit 2014. On the same date, the DfE also published new guidance on dealing with issues relating to parental responsibility. The guidance, which applies to local authority maintained schools and nursery schools, academies and free schools in England, provides guidelines for schools that may find themselves caught up in disputes between a number of adults each claiming to have parental responsibility for a particular child.

On 11 December 2015, the DfE published updated statutory guidance on supporting pupils at school with medical conditions. The guidance is intended for the governing bodies of maintained schools, proprietors of academies, and management committees of pupil referral units. It contains statutory guidance and non-statutory advice relating to their duty under section 100 of the Children and Families Act 2014 to make arrangements to support pupils at their school with medical conditions. The guidance clarifies the distinction between statutory guidance and non-statutory advice and replaces the version published in September 2014. It will not be reviewed again until July 2017.

On 26 November 2015, the DfE published a new schools governance handbook. The handbook, which outlines the core role and functions of governing bodies in maintained schools and boards of trustees in academies, summarises and provides a first point of reference on all the legal duties on these bodies and points to where more detailed information, guidance and resources can be found. It also provides information on the support available to enable these bodies to be effective.

On 4 November 2015, the EFA published updated information about academy admissions arrangements for entry in September 2017. The guidance confirms that admission authorities must have determined their admissions arrangements for entry in September 2017 by 28 February 2016,  must publish their admission arrangements for September 2017 entry on their websites and have sent a copy to their local authority before 15 March 2016. Further, admission authorities must publish their appeals timetable on their websites by 28 February 2017.

On 4 November 2015, the DfE and National College for Teaching and Leadership (NCTL) published an updated version of their guidance, Teacher misconduct: The prohibition of teachers. The guidance, which applies to schools including maintained schools, academies and free schools, is aimed at people including disciplinary panel members and witnesses, NCTL staff, employers of teachers and anyone undertaking teaching work. It provides information on the decision-making criteria of professional conduct panels that are held as a result of teacher disciplinary action and for the purpose of the regulation of teacher conduct.

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