Update on DfE publications

November 22nd, 2012 by Rachel Kamm

The Department for Education has published a number of new guidance documents in October and November. These are all listed here and include:

  • Overseas-trained teachers from outside the EEA – Departmental advice giving an overview of the requirements for overseas-trained teacher (OTT) employment, including background information, details of the four year rule, advice for OTTs, and information about OTTs after the four year rule and UK Border Agency requirements.
  • School playing fields and public land protection advice – Departmental advice for local authorities, governing bodies, foundation bodies, trustees, diocesan authorities, voluntary bodies, academies and sports organisations on protecting school playing fields.
  • Dealing with allegations of abuse – Statutory guidance for local authorities, headteachers, school staff, governing bodies and proprietors of independent schools on dealing with allegations of abuse against teachers and other staff.
  • 2013 Assessment and reporting arrangements: Key Stage 1 – Statutory guidance covering statutory assessment and reporting requirements for Key Stage 1.
  • School Governance Constitution Regulations 2012 – Statutory guidance about the School Governance (Constitution) (England) Regulations 2012, which set out the arrangements for the constitution of the governing body of those maintained schools in England.
  • Equality Act 2010 – Departmental advice for schools on how the Equality Act affects them and how to fulfil their duties under the act.
  • Teacher appraisal and capability – Statutory guidance on teacher appraisal and capability, taking the form of an optional model policy.
  • Safeguarding children and safer recruitment – Statutory guidance setting out the responsibilities of all local authorities, schools and further education (FE) colleges in England to safeguard and promote the welfare of children and young people.
  • First aid in schools – Departmental advice.
  • School food in England – Departmental advice for schools in England.
  • Key Stage 3 Teacher assessment and reporting arrangements – Statutory guidance on the 2013 Key Stage 3 Teacher assessment and reporting arrangements (TARA).
  • Pupil information regulations – Departmental advice on The Education (Pupil Information) (England) Regulations 2005 (S.I. 1437).
  • The school admissions code 2012 – Statutory guidance.
  • Consistent financial reporting CFR (Guide): 2012-13 – Departmental advice.
  • 2013 Assessment and reporting arrangements – Departmental advice on the early years foundation stage.
  • The school admission appeals code 2012 – Statutory guidance.
  • The National Curriculum – Statutory guidance for schools in England.
  • School charging – Departmental advice to help headteachers and governing bodies set out their policies on charging and remission for school activities and school visits.
  • Special educational needs: Code of practice – Statutory guidance.
  • School Information – Departmental advice on the School Information (England) (Amendment) Regulations 2012 (SI 2012/1124).

Rachel Kamm



November 12th, 2012 by James Cornwell

Following consideration of the case on the papers, Mr Justice Cranston has ordered that the judicial review challenge to the grading of GCSE English exams in June 2012 be listed for a 2-day expedited hearing (see BBC News report here).  The hearing is to be on a “rolled-up” basis, i.e. if permission to seek judicial review were to be granted, a substantive hearing of the application would follow immediately. The hearing is expected to take place before Christmas.

The case arises out of the decisions by examination boards, the AQA and Edexcel, to set a grade C grade boundary for English exams in the June 2012 sitting that was higher than the boundary they set in the January 2012 sitting. 167 pupils, 150 schools, 42 local authorities and six professional bodies for teachers are participating in the mass challenge against the AQA and Edexcel examination boards for their decisions in relation to the grade boundary and against the exams regulator, Ofqual, for approving the decisions or failing to reverse them. The grounds of challenge include alleged breach of legitimate expectations and breaches of the principles of fairness and rationality.

Six 11KBW barristers are instructed for the various parties in the dispute: Clive Sheldon QC and Joseph Barrett for the claimants, Clive Lewis QC and Jane Oldham for the AQA, and Nigel Giffin QC and Christopher Knight for Edexcel.


Residential Placement: The Upper Tribunal strikes again

November 12th, 2012 by James Cornwell

Special educational needs (“SEN”) cases involving residential placements are often particularly contentious: the pupil will often have (or be alleged to have) particularly significant SENs, but the local authority will be potentially facing a very large bill for such a placement. The issue has again been considered by the Upper Tribunal in London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC)

A is autistic and was placed as a border at a mixed residential and day independent school, PM School. The local authority issued a Statement of SEN naming PM as the placement in Part 4 of A’s Statement until July 2011, and then a mainstream, maintained sixth-form college, WM School, from September 2011. The First-Tier Tribunal (Special Educational Needs and Disability) allowed JH’s appeal against Part 4, ordering that only PM be named. There was a £37,000 per annum cost difference between the two.

Judge Lane in the Upper Tribunal allowed the local authority’s appeal on a number of grounds and remitted the appeal for rehearing.

First, the Judge referred to the well-known authorities that distinguished between a pupil needing a waking day curriculum (“WDC”) and simply needing consistency between home and school (eg. R(A) v Hertfordshire CC [2006] EWHC 3428 (Admin), [2007] ELR 95, The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658 and R (TS) v Bowen (Chair of SENDIST) [2009] EWHC 5 (Admin) (see the Upper Tribunal’s judgment at [18]-[19]). The question a tribunal had to decide was whether it was necessary for a child to have an extended extracurricular educational programme continuing after the school day. The tribunal also had to weigh the educational advantages of such a curriculum against the cost to determine if the resultant expenditure was unreasonable (see at [20]). The Judge also referred to the guidance on residential placements at para.8:74 of the SEN Code of Practice (to which he considered the Tribunal had paid “mere lip service”) (see at [21]-[22]).

The Judge concluded that the Tribunal had failed to compare the evidence relating to the competing schools fairly to see if a WDC was reasonably required. The findings made by the Tribunal were inadequate and there did not appear to be anything of significance to distinguish provision at PM from that proposed at WM (see at [23]-[25]).

Secondly, the Tribunal failed adequately to deal with the local authority’s evidence in relation to a transitional plan (see at [15], [26]). Thirdly, having failed to analyse properly whether a WDC was required the Tribunal’s conclusion that the £37,000 of extra cost at PM did not represent unreasonable public expenditure also fell (see at [27]). The Tribunal had also erred in failing to explain why it preferred the evidence of JH and PM that A would not cope at WM over the available evidence that A would be able to cope (see at [30]).

The judgment also raises three further points of wider interest. First, it is not open to parents to reserve their position on Parts 2 and 3 of the SEN Statement for any remitted hearing, if they have not challenged Parts 2 and 3 the first time round before the Tribunal (see at [8]-[9]). Secondly, in an interesting demonstration of the less formal approach to procedure in the Upper Tribunal compared to old appellate regime in the High Court, the local authority’s SEN case worker was allowed to provide input at the Upper Tribunal hearing on background matters (see at [3]-[4]). Thirdly, the Judge emphasised to parties and tribunals that the SEN process was co-operative and that neither party should be allowed to take advantage of their own lack of co-operation where that results in a lack of proper assessment (in this case the local authority alleged lack of co-operation by the parent in allowing access to A). The Judge also observed that where such lack of co-operation occurs the Tribunal should take particular care to apply its expertise to the evidence before rejecting as inadequate an outline plan for provision from a local authority (see at [17]).