What’s going on with exclusions?

July 30th, 2010 by Clive Sheldon QC

Data released yesterday from the Department for Education showed a declining rate of school exclusions. See http://www.dcsf.gov.uk/rsgateway/DB/SFR/s000942/index.shtml

The figures relate to the school year 2008/09 and reveal that:

“There was an estimated 6,550 permanent exclusions from primary, secondary and all special schools in 2008/09.

  • In 2008/09 there were 307,840 fixed period exclusions from state funded secondary schools, 39,510 fixed period exclusions from primary schools and 15,930 fixed period exclusions from special schools.
  • The average length of a fixed period exclusion in state funded secondary schools was 2.6 days, for primary schools the average length of a fixed period exclusion was 2.2 days.
  • The permanent exclusion rate for boys was approximately 3.5 times higher than that for girls. The fixed period exclusion rate for boys was almost 3 times higher than that for girls.
  • Pupils with SEN (both with and without statements) are over 8 times more likely to be permanently excluded than those pupils with no SEN.
  • Children who are eligible for free school meals are around 3 times more likely to receive either a permanent or fixed period exclusion than children who are not eligible for free school meals.”

Some interesting facts buried within the figures are that:

– Permanent exclusions have gone down by 19.4% over the previous year.

– There is still an alarming difference in exclusion rates of children from different backgrounds: the data shows that Black Caribbean pupils are 3 times more likely to be permanently excluded than the school population as a whole; similarly for children who are eligible for free school meals, who are 3 times more likely to be permanently excluded than other children.  

– Whilst the rate of permanent exclusion from ‘schools’ is 0.09% of the school population, it is 0.31% for Academies (a decrease from 0.42% in 2007/08).

– There were 640 appeals lodged against permanent exclusion decisions. of the appeals heard, 25% ruled in favour of the parents. Reinstatement was directed in 39% of successful appeals.

– The DfE’s technical notes suggest that a key reason for the decrease is the use of ‘managed moves’: arranging for the transfer of a child who is at risk of permanent exclusion to another school.

Will this data lead the government to re-think the exclusions guidance?


Keeping the Supreme Court busy … and ones to watch out for

July 28th, 2010 by Peter Oldham QC

At the end of this year, the Supreme Court will hear yet another education case:  G v Governors of X School (CA decision at [2010] ELR 235), which concerns the procedural rights of teachers being disciplined by a governing body where the outcome may affect their ability to carry on teaching.   Never before has our highest Court had such a proportion of its workload coming from the world of education: see blogs below on A v Essex, and  Re JR 17, not to mention the two JFS matters ([2010] UKSC 1 and 15).

One step below, the Court of Appeal is to hear an appeal from the decision of Cranston J in O v East Riding of Yorkshire CC [2010] E.L.R. 318, which is an important case dealing with the interface of special needs provision and social services provision.  The judge held that the local authority had correctly ceased to regard a child as being “looked after” under the Children Act 1989 when he was placed in full-time residential education under his SSEN.  This was because, on the facts, the school provided all his welfare needs, and he no longer needed respite care or accommodation, so that the authority was not providing his accommodation in the exercise of its social services function.

Peter Oldham QC


What to do with home education?

July 28th, 2010 by Clive Sheldon QC

The serious case review into Khyra Ishaq’s death has called into question the role of the Education Otherwise team at Birmingham City Council. If it had been more interventionist, it is suggested that the child’s death may not have occurred. Although the level of abuse in this case is mercifully quite rare, the case has raised much broader questions about home education: when should this be permitted? to what extent should it be regulated? 

At present, there is a basic statutory framework for the delivery of home education, but no detailed regulatory regime. 

Parents are under a duty to ensure that children of compulsory school age ‘receive efficient full-time education suitable (a) to his age, ability and aptitude, and (b) to any special educational needs he may have, either by regular attendance at school or otherwise’ (section 7 Education Act 1996). Home education is one way in which this can be achieved.

But who is to judge whether the education delivered at home is ‘full-time’, let alone ‘suitable’? This duty would appear to fall on the relevant local authority pursuant to section 19 of the Education Act 1996, which imposes a duty on local authorities to ‘make arrangements for  the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.’  This suggests that if a child is not receiving education at school — because his or her parent has taken the child out of school to educate at home — local authorities have a duty to provide ‘suitable’ education if arrangements for receiving that level of education are not already being made for the child. Local authorities are therefore empowered to step in and check whether the arrangements for home education are appropriate. And if they are not, then local authorities are obliged to put in place arrangements that are appropriate.

What if a parent does not comply? Well, it looks as though local authorities could then seek to prosecute parents, using section 444ZA of the Education Act 1996. This provides that ‘Where, in the case of a child of compulsory school age who is not a registered pupil at any school a local authority has made arrangements under section 19 for the provision of education for him otherwise than at a school or at his home, and (b) notice in writing of the arrangements has been given to the child’s parent subsections (1) to (7) of section 444 [the prosecution provisions where there is non attendance at a school where a child is registered] have effect as if the place at which the education is provided were a school and the child were a registered pupil at that school.’

So, the sledgehammer of prosecution appears to be available where the local authority has itself put in arrangements for home education. But this will only arise in the most extreme cases. When and how does the local authority judge that home education delivered by parents is ‘suitable’? When does it put in its own arrangements? These are all matters that call out for debate and further discussion. See generally http://www.guardian.co.uk/society/2010/jul/27/khyra-ishaq-home-education-safeguards-call.


Academies Bill

July 27th, 2010 by Holly Stout

The Academies Bill was approved by the House of Commons yesterday and is due to receive Royal Assent later today. A further proposed amendment by LibDem rebels intended to increase consultation requirements before schools can become Academies was defeated.

Holly Stout


Upper Tribunal update

July 27th, 2010 by Holly Stout

Further to Peter Oldham’s blog below, the Court of Appeal has handed down judgement in R (Rex C) v Upper Tribunal and others [2010] EWCA Civ 859.  The CA has confirmed the High Court’s decision ([2010] 2 WLR 1012) that the Upper Tribunal is subject to the jurisdiction of the High Court by way of judicial review if it acts outside its jurisdiction or denies procedural justice, notwithstanding that it is designated as a ‘superior court of record’ by s 3(5) of the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”).  Normally, however, the proper way to challenge a decision of the Upper Tribunal will be by way of appeal to the Court of Appeal under s 13 of the 2007 Act.

Holly Stout


The role of the Upper Tribunal in education law, and its judgments

July 25th, 2010 by Peter Oldham QC
The Upper Tribunal Administrative Appeals Chamber (UTAAC) deals with appeals from the first-tier Tribunal (Health, Education and Social Care) Chamber, which itself deals with care standards, mental health, primary health lists and, as relevant to this blog, special educational needs and disability.  

 So UTAAC deals with what used to be appeals from SENDIST to the High Court on a point of law.

The Administrative Court is now also transferring some education judicial reviews out of the Administrative Court list to UTAAC.

 A few miscellaneous points are worth bearing in mind.

(1) Some search engines do not include judgments by UTAAC – and this is now where some education law will be made.  Here is Tribunal service webpage from which you can go to a search engine for UTAAC decisions: http://www.administrativeappeals.tribunals.gov.uk/Decisions/decisions.htm

(2) Upper Tribunal judgments can contain recommendations as to how the first-tier Tribunal carries out its functions, whether or not an error of law has been identified.

(3) Appeals to the High Court from what was SENDIST normally involved SENDIST itself as a respondent.  Usually SENDIST took no part, but sometimes it participated, either on points of law or procedure, when it felt a important issue has been raised.   The practice in UTAAC (so far) does not, or does not generally, allow for the first-tier Tribunal to take part in such appeals. 

This has important implications for evidence supporting appeals. If an appellant says that there was a procedural unfairness, the first-tier Tribunal will not take part to defend the claim. Nor is it likely to provide evidence on the issue.  If the appellant says that there was no evidence to support findings on an issue, again the first-tier Tribunal will not take part to explain that there was such evidence. My experience is that it is unlikely to provide notes of evidence to the parties to allow them to make, or refute, such an allegation, though it may be that there is no uniform practice.


Supreme Court judgment on an unlawful suspension in Northern Ireland

July 22nd, 2010 by Edward Capewell

With appropriate timing for the launch of this new blog, the Supreme Court has recently handed down two education law judgments: In the matter of an application by JR17 for Judicial Review (Northern Ireland) [2010] UKSC 27 (23rd June 2010) and A v Essex City Council [2010] UKSC 33 (14th July 2010). Peter Oldham QC has blogged on A v Essex here, this post concerns JR17.

The appellant (JR17) was a Year 12 pupil at a school in County Antrim. He was suspended from school following an allegation made confidentially to the principal by a female pupil ‘A’. The allegation was that JR17 had been engaged in a campaign of intimidating behaviour both inside and outside of school that had been of such severity to put A at risk of suicide. It had also come to the attention of the principal that JR17 had been accused of criminal offences of a sexual and violent nature outside the school. In order therefore to protect the identity and the mental health of the girl who had complained the principal decided to suspend the appellant. The principal emphasised to JR17 and his parents that the suspension was ‘precautionary’ and was not ‘an assumption of guilt’.

Suspensions in the school were governed by the ‘Procedures for the Suspension and Expulsion of Pupils in Controlled Schools’ (“the Scheme”) made by the Department for Education Northern Ireland under statutory powers. Put shortly, the terms of the Scheme only permitted a pupil to be suspended on ‘disciplinary grounds’ and not on ‘precautionary grounds’ (adopting the language used by the House of Lords in A v Head Teacher and Governors of Lord Grey School [2006] 2 AC 363.)

The issues on the appeal were therefore these – (1) On what ground was JR17 suspended? (2) Did the principal have power to suspend him on that ground? (3) If he did have such a power was it exercised lawfully? (4) Was there a breach of Article 2 of the First Protocol of the European Convention on Human Rights (“A2P1”)?

The Supreme Court (Sir John Dyson SCJ giving the leading judgment) answered the issues as follows – (1) Despite the Principal’s description of the suspension as ‘precautionary’ it was clear that he considered that there was a prima facie case that the appellant was guilty of indiscipline. The suspension was therefore disciplinary. (Lords Rodger and Brown preferred to say that the suspension had indeed been ‘precautionary’ and therefore the principal’s actions had been ultra vires the Scheme). (2) It followed that there was power under the Scheme to suspend the appellant on disciplinary grounds. Disagreeing with the Court of Appeal, the Supreme Court also held that there was no common law power for a Principal to suspend on precautionary grounds. The Scheme defined exhaustively the circumstances in which a suspension could be made. (3) The suspension was unlawful under the Scheme as JR17 had been given no opportunity whatsoever to put his version of events before being suspended. He had simply been told that unspecified allegations had been made against him and he was henceforth suspended. The principal had also failed to give reasons to the appellant or his parents for his decision. (4) There had however been no breach of A2P1. Applying Lord Bingham’s guidance in the Lord Grey case, the Supreme Court held that there had been no denial of ‘effective access to such educational facilities as the state provides’. During the suspension work had been provided for the appellant to do at home in all the principal subjects. He had also been given home tuition. The fact that such provision was ‘not as effective from an educational point of view as attendance in a classroom would have been’ was immaterial.

One further interesting point about this case is that Lady Hale expressed some dissatisfaction with the majority reasoning on A2P1. Although she did not wish to press her doubts to a dissent she observed that “Left to myself, I might have thought that three months out of school in the run up to important public examinations was indeed to deny [the appellant] effective access to the educational facilities which the state provides for year 12 pupils” [103]

It seems clear from this case and A v Essex that there is a division of view on the scope of A2P1 developing within our highest court.       


Free schools

July 21st, 2010 by Peter Oldham QC

While Academies are the issue of the moment, ”free schools” are the waiting in the wings.   In an earlier post I ventured the view that these might be new legal creatures.  However, the DfE website at http://www.education.gov.uk/freeschools/frequently-asked-questions#g3 currently says this on its FAQs page on free schools:-

“What is the difference between Free Schools and academies?
Free Schools will have the same legal requirements as academies. Free Schools are normally brand-new schools set up by charities, universities, business, community or faith groups, teachers and groups of parents where there is parental demand. Academies are usually a change to an existing maintained school.

Legally the structure is the same, and they are expected to meet the same requirements as other academies. Free Schools will also benefit from the same freedoms and flexibilities as academies, including

  • the ability to set their own pay and conditions for staff
  • freedom from following the National Curriculum
  • greater control of their budget
  • freedom to change the length of terms and school days
  • freedom from local authority control.”

It therefore appears that free schools will take the legal form of Academies under the Academies Act (as it will be), presumably sd additional schools created what is now cl 1 of the Bill, and to which the procedural requirements under cls 9 and 10 will apply (SoS to take into account impact of additional school; and the person entering into arrangements with SoS for an additional school to consult “such persons as the person [entering into arrangements] thinks appropriate”.


11KBW Academies Seminar, 21st July 2010

July 21st, 2010 by Panopticon Blog

James Goudie QC chaired the 11KBW Academies Seminar at the Crowne Plaza, which was attended by over 100 different firms and local authorities.

Peter Oldham QC gave his paper on the Academies Bill – click here to download paper

Clive Sheldon spoke on the Academies Bill. Public Law constraints; admissions, exclusions, special needs – click here to download his paper.

Holly Stout spoke on the Academies Bill; Governance, Property, Staff and Procurement – click here to download her paper



July 21st, 2010 by Tim Kerr QC

As in previous years, LGG’s annual Education Law Conference will be presented in association with 11 KBW.  This year’s chair, Tim Kerr QC, previews the day’s events.

A new government determined to “completely change the way this country is run” and make “the best schools open to the poorest children” (David Cameron on 8th July) calls for a fresh approach to this year’s conference.

Traditional topics such as exclusions and admissions, special needs provision, school transport and travel and school reorganisations are generating fewer ground breaking court and tribunal decisions.  We will not neglect the ever important case law update but the format is different this year with a sharp focus on legislative innovation.  For the first time we will include a case study in a litigious form, with submissions from 11 KBW advocates based on fictitious but not unlikely facts.

The coalition’s leading politicians have not yet lost the élan characteristic of those still new to office.  There is no sign yet of a “bonfire” of education laws to match CLG’s recently published modest hitlist.  But Mr Gove’s enthusiasm for change is unbridled: soon, almost anyone can set up a state funded school if they can persuade him to fund it.  Perhaps the money will come from savings on cancelled building projects, since the government is giving up Building Schools for the Future – for the present.

We will look carefully at the Academies Bill (by then, Act), also the subject of a separate 11KBW seminar in London on 21st July.  Maintained primary and special schools will be eligible to become academies, no sponsor will be required and academies will not be confined to failing schools.  Schools are reported already to be applying in droves to become academies.  What will be the role of the local authority where one of its schools does so?  Will any public consultation be required?

Can the authority itself become a founder member of the company that contracts with central government to run the academy?  Could local authority officers or members become directors of the company?  Are academies “public authorities” bound by the Human Rights Act 1998?  Do they owe the public duties to promote and defend equality?  Will contracts relating to the school’s premises transfer to the academy along with TUPE-transferred staff?  Will the Freedom of Information Act 2000 apply to academies?

If the government’s proposals are sufficiently developed and prove relevant to local authority lawyers, we will look also at the Swedish inspired proposal to allow parents, teachers, charities, religious groups (more controversy in the making there) and philanthropists to fashion new schools and classrooms out of disused offices and commercial premises.  Press reports suggest the first such “free schools” could open as early as September 2011.

Local authorities are again regarded with disfavour as providers and funders of education in this latest drive to reconfigure provision.  But the system cannot manage without them and their role will remain important.  We will look at the ways in which that role will change and the impact of the changes on the work of local authority education lawyers.

James Goudie QC will consider the Equalities Act 2010, squeezed into law just before Labour left office but not yet in force and now under review by the coalition.  By 9th November we should know more about how much of it will survive and its implications in the education field.  Will the legislature change the effect on faith schools, particularly Jewish ones, of the Supreme Court’s decision in R(E) v. JFS Governing Body [2010] 2 WLR 153?  What will become of Labour’s intention to overturn Lewisham LBC v. Malcolm [2008] 1 AC 1399, with its implications for educational provision for disabled children?

Nigel Giffin QC will grapple with staff misconduct, discipline and access to children, an increasingly difficult topic which will not go away.  Our case study will also feature teacher discipline issues and information rights in the education context.  It promises to be an interesting day as we hope regular attenders have found in the past.

The Education Law Conference, presented by LGG in partnership with 11kbw, takes place

at the Royal College of Surgeons in London on 9 November and carries 4.5 CPD points.

For further details and to book visit: www.lgg.org.uk .

Tim Kerr QC