Last week the Prime Minister entered into the debate on the wearing of veils by Muslim women in schools (https://www.independent.co.uk/news/uk/politics/cameron-will-back-uk-muslim-veil-bans-as-he-announces-new-measures-to-tackle-segregation-a6820491.html). This week, it is the turn of the Chief Inspector of Schools, Sir Michael Wilshire. The Chief Inspector has said that:

“The Prime Minister and Secretary of State are right to give their backing to schools and other institutions which insist on removing face coverings when it makes sense to do so.

I am concerned that some heads and principals who are trying to restrict the wearing of the full veil in certain circumstances are coming under pressure from others to relax their policy. I want to assure these leaders that they can rely on my full backing for the stance they are taking.

I have also made clear to my inspectors that where leaders are condoning the wearing of the face veil by staff members or by pupils when this is clearly hindering communication and effective teaching, they should give consideration to judging the school as inadequate.

I am determined to ensure that discrimination, including on the grounds of gender, has no place in our classrooms. We want our schools, whether faith schools or non-faith schools, to prepare their pupils equally for life in 21st century Britain. We need to be confident our children’s education and future prospects are not being harmed in any way.”

https://www.gov.uk/government/news/statement-by-hm-chief-inspector-on-the-wearing-of-the-full-veil-in-schools

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The First Tier Tribunal frequently has to compare the costs of educating a child with special educational needs (SEN) in the independent sector (the parents’ preferred choice) with the costs of attending a school in the maintained sector (the local authority’s preference). Over the past year, according to Upper Tribunal Judge Mitchell, the outcome of SEN appeals in England where parents sought independent schooling had ‘started to resemble a lottery’, with different tribunals reaching contradictory outcomes on similar facts. Judge Mitchell has sought to bring order to the system in his judgment in the consolidated appeals in four cases: Hammersmith & Fulham LBC v. L  [2015] UKUT 0523 (AAC).

The appeals to the Upper Tribunal concerned the comparative cost analysis of an independent school and a special school, and required consideration of section 9 of the Education Act 1996 (“the 1996 Act”): “In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”

The particular issues in the appeals involved the approach to be taken where there was a comparison between the costs of an independent school placement and the local authority’s special school, where the special school has a vacancy; and when comparing the costs of an independent school with SEN-reserved places in a specialist unit. In both scenarios, the Upper Tribunal held that the place funding for the special school and SEN-reserved places was to be ignored, as that funding would be incurred by the local authority in any event. Only the top-up funding for the particular child (including any extra transport costs to the local authority’s preferred placement) should be taken into account on the local authority’s side, and then compared with the cost that would be incurred in attending the parents’ preferred independent school.

The Upper Tribunal judge arrived at this conclusion based on his understanding of the detailed legislative scheme for funding maintained schools: the School Standards and Framework Act 1998, and the relevant regulations. For the financial year in question (2014/15) those were the School and Early Years Finance (England) Regulations 2013 (SI 2013/3104). He explained that for maintained mainstream schools with reserved places for children with SEN, funding of £10,000 must be included per place: regulation 14(2). The Upper Tribunal judge explained that ‘This amount must be included in the school’s budget share whether or not the place is filled.’ Similarly with special schools: regulation 14(1). Local authorities are required to include the sum of £10,000 for each place.

The Upper Tribunal judge then analysed the extensive case law dealing with section 9, and drew an analogy with the Court of Appeal’s decision in R. (on the application of GB) v Oxfordshire CC [2001] EWCA Civ 1358, which held that only the additional or marginal cost of the placement at the local authority’s provision should be taken into account. The Upper Tribunal judge concluded that ‘place funding . . . is not an additional cost of a maintained school, for section 9 purposes, if the school has unfilled places.’

Where, however, the choice was between an independent school and a maintained mainstream school without reserved places for SEN, the Upper Tribunal judge said that the AWPU (age weighted pupil unit) normally represents an additional cost for the purposes of section 9 and should be taken into account, along with any additional funding required to meet the child’s needs.

As the Upper Tribunal judge noted, however, this analysis may be less significant in the future, as changes made by the Children & Families Act 2014 will mean that the test to be applied for school naming disputes will be that of Schedule 27 to the 1996 Act where parents wish their child to attend a non-maintained special school and certain independent special schools. That test is not concerned with “unreasonable public expenditure”, but with whether the child’s attendance at the parents’ preferred school would be incompatible with “the efficient use of resources”.

CLIVE SHELDON QC

The Burgundy Book  (the Conditions of Service for School Teachers in England and Wales) provides that a teacher is entitled to full pay where her ‘absence was due to an infectious or contagious illness contracted directly in the course of the teacher’s employment’, and that ‘such absence was not be reckoned against the teacher’s entitlement to sick leave’.

The meaning of the phrase ‘in the course of the teacher’s employment’ for these purposes was recently considered by the Employment Appeal Tribunal (“the EAT”) (presided over by Mitting J.) in O’Brien v. the London Borough of Haringey, The Governing Body of Coleraine Park Primary School (UKEAT/0167/12).

The facts were rather unusual. The primary school wanted to be part of a British Council initiative which involved creating links between schools around the world. A school teacher, Ms. O’Brien, had travelled to Gambia, and visited a school there. On her return, Ms. O’Brien sought to make arrangements for the primary school to be linked with the Gambian school. She also planned to visit that school during the next half-term holiday, where she would exchange materials with the Gambian school. It was agreed with her school’s head teacher that she would make the visit to Gambia, paid by herself, and would exchange the materials. Also, that she would be given paid leave for one day to allow her to fly out to Gambia.

Ms. O’Brien visited the school in Gambia, but unfortunately contracted cytomegalovirus during her visit there as a result of contact that she had with local schoolchildren. Ms. O’Brien subsequently claimed that she was entitled to be paid during her illness, as well as a further related illness, on the grounds that she had contracted the illness directly ‘in the course of [her] employment’.

Ms. O’Brien’s claim was dismissed by the Employment Tribunal, but succeeded before the EAT. The EAT rejected the analogy with tortious vicarious liability on the basis that the rules for vicarious liability ‘are established fundamentally as a result of a policy decision made by the law about the transference of liability for risks created by wrongful acts by those acting as the employees or agents of another person’. The task for the EAT was said to be different: ‘It is to determine what the two parties to the contract agreed should happen in the event that the employee suffered from illness’. The task, therefore, was to construe the contract. In doing so, the EAT drew heavily on a different paragraph to that dealing with ‘infectious and contagious illness’: the EAT referred to a paragraph of the Burgundy Book dealing with an ‘absence due to accident, injury or assault attested by an approved medical practitioner to have arisen out of and in the course of the teacher’s employment, including attendance for instruction at physical training or other classes organised or approved by the employer or participation in any extra curricular or voluntary activity connected with the school’, where full pay was awarded.

The EAT decided that this paragraph showed what the parties viewed as being “in the course of the teacher’s employment”: it included ‘participation in any extra-curricular or voluntary activity connected with the school’. Although the Burgundy Book had not spelt out the same definition when dealing with contracting illness, the EAT held that there was no reason why the parties should have adopted a different meaning to that for accidents, injuries and assaults.

Applying that definition, the EAT held that Ms. O’Brien’s illness was contracted during the course of her employment:

‘The school wished to take part in the initiative proposed by the British Council. To that end it required a link to be established with an overseas school and the exchange of materials with that school. Although the proposal that the link should be established with the school in Gambia came from the Claimant, it was approved and therefore determined by the acting headteacher that it should be that school with which the link was to be made. The Claimant required the permission of the acting headteacher for two purposes: first, to take the day of school term off to permit her to go to Gambia; and second, to exchange materials, one side of which originated from her school, with the school in Gambia. 

The Tribunal’s findings that the visit to the Gambian school and all that went on there were not “part of the claimant’s normal duties” and that it was “her initiative, it was not an official visit” and that it was “not her remit to engage in activities at the school in the Gambia” are not in point. What had happened was that the acting headteacher had agreed that she should go to the school with the permission of the school to exchange materials. It must have been reasonably contemplated that for that purpose she would not simply act as a postwoman but in the interests of furthering the links that it was hoped would be established between the schools and for her school’s purposes that she would go in the ordinary course of her visit beyond those simple tasks.

In the end, what she was doing was an activity undertaken with the permission and approval of the school and connected with it.’

In many ways, the school may feel that this decision is harsh. At most, the relationship between the Claimant’s employment and the Gambian school where she contracted the illness was tenuous. Also, as a matter of contractual logic, the fact that one definition is provided for ‘the course of the teacher’s employment’ in one paragraph does not mean that this can then be translated to a different paragraph. Indeed, the fact that the latter paragraph does not expressly refer to the other definition might suggest that it is not to be used. There may also be policy reasons for the difference in approach, although these do not appear to have been explored before the EAT. 

Clive Sheldon QC

Members of staff of further education institutions and 16-19 Academies are empowered to search students if they have ‘reasonable grounds for suspecting that a student at the institution may have a prohibited item with him or her or in his or her possessions’: section 85A of the Further and Higher Education Act 1992. That Act includes a lengthy description of ‘prohibited items’, which includes knives and blades, an offensive weapon, alcohol, a controlled drug, and a stolen article. If found on a student, these items may be seized.

Taking children on school trips can provide them with tremendous educational opportunities. On the other hand, things can go wrong, and questions of legal liability can arise. The recent case of XVW & YZA v. Gravesend Grammar School for Girls [2012] EWHC 575 (QB) explores the legal responsibilities of schools where something has gone terribly wrong on a school trip.

Two girls between the ages of 15 and 17 took part in an adventure trip to Belize where they were raped by a local man (A) who owned the farm where they were staying. On the trip the girls were accompanied by a female school teacher, and two representatives of an adventure travel group. A claim for negligence was brought against the school and the company involved in arranging the trip.

Mackay J. rejected the argument that the school was vicariously liable for A’s actions. It was suggested that although he was not an employee of the school, he was “recruited or enlisted as part of the leadership team and entrusted with the supervision and care of the girls”. Mackay J. explained that the test of vicarious liability was set out by the House of Lords in Lister v. Hesley Hall Limited [2002] 1 AC 215: the key question was whether there was a sufficient connection between the acts of the tortfeasor and the work he had been employed to do such as to make it fair and just that the employer should be liable for them. In Lister, the sexual abuse of children by the warden in a boarding house was ‘inextricably interwoven with the carrying out by the warden of his duties’, and vicarious liability was made out.

In the Gravesend case, Mackay J. accepted that the girls did work on A’s farm, and that A allocated the work and explained what was to be done. Nevertheless, Mackay J. found that the work was carried out under the direct and continuous supervision of the leaders, and “true control” of the tasks performed by the girls lay with the leaders and not A.  Similarly, although A had facilitated a trip to a local swimming pool the day before the rapes, and had driven them to and from a bar the previous evening, the judge found that the girls were continuously under the direct supervision of the leaders. In the circumstances, Mackay J. held that the facts fell far short of a situation where it would be just and reasonable to hold the school vicariously liable for A’s actions.

Mackay J. also rejected a claim based on direct liability. It was contended that the school breached their duty of care in arranging for only one teacher to be allotted to the group. Reference was made to the Department for Education and Employment’s good practice guide: Health and Safety of Pupils on Educational Visits, applicable at the time. (This has now been replaced by a much shorter document put out by the Department for Education: Health & Safety: Advice on Legal Duties and Powers for Local Authorities, Head Teachers, Staff and Governing Bodies, Updated: 7 February 2012).

The previous guidance provided that ‘A minimum ratio of one adult to ten pupils is a general rule of thumb’ for school trips, and that ‘at least two of the adults should be teachers.’ On this trip, there were three adults attached to the group, but only one was a teacher. Mackay J. rejected the argument that it was negligent not to have arranged for another teacher to go with the group. The other two adults were former soldiers who had very substantial experience of this kind of trip. The judge found that ‘There was no occasion on this expedition when difficulties were caused by the absence of a second teacher; the presence of two technical experts, who between them had 50 years of military service and a large number of years of experience of expeditions in all environments, was a positive bonus.’

The judge went on to consider the further contention that the leadership team of three were in breach of their duty to exercise reasonable skill and care to keep the girls free from foreseeable harm at the hands of A, and specifically to respond appropriately to indications that A posed a risk to the girls: he had acted inappropriately towards them the previous day – at the swimming pool, and at the bar in the evening.

It was accepted by the school that a duty of care in tort was owed to the girls: that the school was obliged to take such reasonable care to ensure the safety of the pupils on the trip as would be taken by a reasonably careful parent. Mackay J. explained that the scope of this duty was whether “the situation was one where it is readily understandable that the law should regard the defendant as under a responsibility to take care to protect the claimant from the risk” (per Sir Anthony Clarke MR in X and Y v. LB Hounslow [2009] EWCA Civ 286); which was merely another way of stating the principle from Caparo v. Dickman [1992] AC 605 that the imposition of the duty must be “fair just and reasonable”.

On the facts, Mackay J. found that the leaders were not put on notice that A had been “grooming” the girls as potential victims. They had not heard comments that A had made at the pool, and the comments were not reported to them. As for the suggestion that there was, in any event, a foreseeable risk of sexual assault of some kind which should have been protected against, and that the checks carried out on A were inadequate, Mackay J. held that he was satisfied that the checks were appropriate. There was no criminal record that had gone undiscovered. Furthermore, the girls were continuously supervised, and the judge found that ‘Short of posting a guard on the door of each cabana, or instituting some system of watch-keeping, there would have been no way of defeating’ A’s assault on the girls. A was ‘an unscrupulous, determined and skilful attacker’, and the precautions taken were found to be ‘reasonable and proportionate’.

In essence, Mackay J’s judgment acknowledges that schools must take seriously their responsibilities for risk assessment of school trips, and allocate appropriate resources. Schools cannot, however, be held liable for anything that goes wrong on the trip, even something that goes terribly wrong. There are some circumstances in which it is simply not just and reasonable to impose liability on schools for wrongdoing towards pupils in their care.

A number of recent posts have highlighted the confusion surrounding the ability of local authorities to continue funding PFI contracts when a school converts to an Academy (Holly Stout, 19 September; Ed Capewell, 17 October). This confusion has held up a number of Academy conversions. One would have thought that the confusion would have been put to rest by the opinion of an eminent education silk that local authorities could continue the funding.

To put the matter beyond any doubt, however, an amendment has been tabled to the Education Bill currently progressing through Parliament. This will provide as follows:

‘In section 6 of AA 2010 (effect of Academy order), after subsection (2) insert –
(2A) Subsection (2) does not prohibit the local authority from providing financial or other assistance in respect of the academy, including by
(a) making payments in respect of some (but not all) of the
expenses of maintaining the academy,
(b) providing premises, goods or services for the academy, or
(c) making premises, goods or services available to be used for
the purposes of the academy.’

With this wrinkle out of the way, we should expect to see an increasing number of schools applying for and achieving Academy status.

The Department of Education has issued statutory guidance for ‘Dealing with Allegations of Abuse against Teachers and Other Staff’ (see https://www.education.gov.uk/publications/eOrderingDownload/dealing%20with%20allegations%20of%20abuse%20against%20teachers%20and%20other%20staff.pdf). Local authorities and governing bodies must have regard to this guidance when dealing with allegations of abuse.

The key points of the guidance are that:

(1) allegations should be resolved quickly;

(2) suspension of staff should not be the ‘default option’ once an allegation is made; suspension should only take place where there is ‘no reasonable alternative’;

(3) malicious allegations should be removed from personnel records, and unsubstantiated, unfounded or malicious allegations should not be referred to in employment references;

(4) pupils making malicious allegations may be sanctioned under the school’s behaviour policies;

(5) all institutions should have procedures for dealing with allegations.

The Guidance reminds governing bodies and local authorities that they have ‘a duty of care to their employees’ and so should ‘ensure they provide effective support for anyone facing an allegation’.

Governing bodies should refer allegations of harm or possible harm  to children; criminal offences against or related to a child; or behaviour towards children which indicate that the staff member would pose a risk of harm if working regularly or closely with children, to the local authority designated officer (LADO). The LADO can then decide whether police or social services should be contacted. Reference to the LADO should be made before speaking to the accused person. The accused should, however, be informed of the allegation as soon as possible after the LADO has been consulted, unless a strategy discussion is needed or police/social services involvement is required, in which case notification may be delayed.

The Guidance makes specific reference to Resignations and the use of ‘Compromise Agreements’ when the accused tenders his or her resignation or ceases to provide services. The Guidance states that tendering a resignation ‘must not prevent an allegation being followed up in accordance with the procedures’, but the accused should (even though they may have left employment) be given a full opportunity to answer the allegation and make representations about it. 

The Guidance emphatically states that ‘compromise agreements’, by which a person agrees to resign if disciplinary action is not pursued, and it is agreed that a form of words is to be used for future references, ‘must not be used in these cases’.

All in all, the Guidance seems to provide a sensible set of arrangements and procedures: protective of the rights and interests of both the accuser and the accused.

One school in Middlesborough apparently has a problem with parents in pyjamas: see https://www.bbc.co.uk/news/uk-england-tees-13511668 (“Head teacher appeal to school run ‘pyjama parents'”). It is reported that parents in pyjamas are bringing their kids to school in the morning, and then picking them up in the afternoon still in their pyjamas. The Head Teacher has apparently written to parents urging them to think about what they are wearing.

The Head Teacher, and others thinking of following suit, should be cautious, and restrain themselves from taking out on the children their concern over parental fashion statements. Just to remind them, the Secretary of State’s exclusion guidance says at paragraph 15(f) of Part 2 that: “Exclusion should not be used for punishing pupils for the behaviour of their parents”.

In today’s Times newspaper, it is reported that the Department for Education is planning to look again at the Admissions Code: see “Schools admission rules to be rewritten”. Many of those involved in admissions will say, about time to.

According to the Times, a source at the DfE was reported to have said that

“We want to make it clearer, fairer and more transparent so that it’s easier to use so people don’t feel that things are going on that aren’t fair or right. It can’t be right that on national offer day there are parents who feel that they’ve been badly done by and we are trying to solve this by making the code easier to use.”

This makes sense to me.

I recently carried out a review of determinations made by the Schools Adjudicator over the past year. There were some baffling decisions made on a number of occasions, based on the Adjudicator’s reading of the Code.

In one case — London Borough of Croydon: ADA/1746 — a parent whose child had not got into the first of his three preferred primary schools, but had got into a school which was fifty minutes walking distance away, objected to the distance criteria used by the local authority admissions authority. The Adjudicator noted that distance as a criterion was expressly approved by the Code. The Adjudicator considered whether the distance criteria used by LB Croydon were fair by asking whether the journey to the alternative school was “disproportionately long”. The Adjudicator considered that a journey of 50 minutes for a primary school child was not ‘unreasonable or disproportionate, such as to be unfair, when considered alongside distances which children and families in other parts of the country are required to make.’

This seemed to me an odd decision: a fifty minute walk to a primary school in London seems grossly unfair. The fact that children in rural areas may have to do similar, or longer walks, to (presumably) the nearest school is beside the point. Such children are in vastly different circumstances, where expectations of distance and travel times to school are very different. The comparison was, in my view, inapt.

In another case — St. Marylebone C of E School, Westminster: ADA/001769 — the Adjudicator considered the process adopted by the school, a specialist arts college, for admission to the small number of places for children with ‘aptitude’ for performing arts. The Code seeks to draw a distinction between ‘ability’ (which cannot be tested for as part of the admissions arrangements) and ‘aptitude’ (which can). When looking at the school’s approach to testing aptitude for choral music, the Adjudicator stated that hearing a child singing was not allowed. It might, however, be permissible for candidates to be requested to “hum”.

This decision made me laugh. Others will  no doubt have their own favourites. 

We will have wait and see what changes to the Code will be proposed by the DfE.

There is a long established principle that local authorities cannot sue for defamation: see Derbyshire CC v. Times Newspapers Limited [1993] AC 534. As Lord Keith explained in that case, ‘It is of the highest public importance that a democratically elected governmental body or indeed any governmental body should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech’. This principle will probably apply to Governing Bodies of maintained schools: they are public authorities, and so are akin to a ‘governmental body’. But, what about individual governors and head teachers. Can they sue for defamation with respect to how they have managed or governed a maintained school?

This question was recently answered by Tugendhat J. in the case of  McLaughlin v. London Borough of Lambeth [2010] EWHC 2726 (QB). The case concerns a claim for defamation in respect of a number of emails sent by the local authority to the Department for Children, Schools and Families, and a local MP, concerning the affairs of a school in Lambeth (now an Academy). The emails were allegedly defamatory, in that they suggested that successive Head Teachers of the school and the Chairman of Governors were ‘culpably responsible’ for, among other things, ‘failing to implement proper training standards or provide proper support for’ newly qualified teachers; ‘unreasonably dismissing able teachers’; and ‘failing to comply with’ the Council following an audit of the school’s finances, leading to a concern that ‘there remains a lack of transparency’ in the arrangements between the school and a third party management company’, and that the school’s Director for Education and Development ‘is being allowed to benefit improperly and/or unfairly from these arrangements to the detriment of the school.’

The Defendant local authority sought to strike out the claim on the grounds that it contravened the principle in Derbyshire. The Court rejected this submission. It was noted that in Derbyshire itself, Lord Keith had observed that ‘If the individual reputation of any of [the councillors] is wrongly impaired by the publication any of these can then himself bring proceedings for defamation’. This was recognised by LB Lambeth, but the local authority argued that this was not a ‘genuine’ claim brought for the purpose of vindicating an individual’s right, but was in substance a claim brought on behalf of the Governing Body of the school itself. It was an attempt to get round the rule in Derbyshire.

Tugendaht J. rejected this argument. He explained that ‘There is no principle precluding individuals from suing in cases where what is impugned is their conduct in the carriage of business of a public body.’

So, those who wish to make complaints about Head Teachers or Governors should beware: they have no blanket protection from the law of defamation, even if what they are complaining about relates to the way in which the affairs of a school are being handled. Will this decision, and the risk of defamation claims, have a chilling effect on those who wish to make complaints? I doubt it.