Higher education and restricted access

April 4th, 2013 by Edward Capewell

What kind of restrictions can higher education institutions permissibly impose on prospective students? Clearly academic achievement must be one. But is it permissible to combine academic achievement with an overall cap on the number of places available for a particular course? In Tarantino v Italy the Strasbourg court decided that such a cap did not contravene the right to education in Article 2 of the First Protocol (A2P1).

Italy imposes numerical caps on various university courses such as medicine and dentistry based partly on Italian society’s need for members of those professions and partly on the resources of the universities which teach the relevant subjects. The applicants in Tarantino had unsuccessfully applied for medical and dentistry courses, both subjects which were very heavily over-subscribed. They challenged the cap on the basis that it disproportionately interfered with their right to an education.

The ECtHR, applying familiar principles concerning the inherent limitations on the A2P1 right and states’ margin of appreciation, found that the restrictions imposed by Italy were a proportionate means of achieving a legitimate aim and did not therefore violate A2P1. An interesting sub-issue was as to the compatibility of the ‘societal-requirement’ criterion with the principle of free movement of persons enshrined in Article 45 TFEU. The ECtHR seemed to think the criterion a little suspect in EU law terms (whilst obviously not making any finding on the issue) but nevertheless held that the Italian government was “entitled to take action with a view to avoiding excessive public expenditure”. Welcome words in these straitened times no doubt.

On the subject of higher-education restrictions, readers may recall the case of Damien Shannon who sued St Hugh’s College Oxford for refusing him a place on the grounds that he could not demonstrate that he had sufficient means to live in Oxford during his period of study. The case has now been settled with Mr Shannon being offered a place on the MSc in Economic and Social History and the university agreeing to review its existing financial guarantee policy.


Discipline in Academies – the tyranny of legislation

March 7th, 2012 by Edward Capewell

One of the principal planks of the Academy schools programme is that Academies are ‘independent’ schools. The Coalition government’s aim was concisely expressed in ‘The Importance of Teaching’, the white paper which led to the Education Act 2011: “We want every school to be able to shape its own character, frame its own ethos and develop its own specialisms, free of either central or local bureaucratic constraint.”

The School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012 (SI 2012/619) could be seen as just such a constraint however.

In order to understand what they are about it is necessary to refer to section 550ZA Education Act 1996 which, as everyone knows, was inserted into that Act by section 242 Apprenticeship, Skills, Children and Learning Act 2009 and amended by section 2 Education Act 2011. Section 550ZA gives members of staff the power to search pupils for ‘prohibited items’ such as knives or drugs. One of the amendments introduced by the Education Act 2011 provides that ‘the school rules’ can identify ‘prohibited items’ beyond those prescribed by the statute. Mobile phones and ipods are perhaps obvious candidates.

What though, is meant by ‘the school rules’? In the nature of modern legislation this cannot be left to chance, or common sense. In the case of maintained schools they are “measures determined and publicised by the head teacher under section 89 of the Education and Inspections Act 2006.” What, though of Academy schools? Surely they can set their own rules without ‘bureaucratic’ interference?

Enter the School Behaviour (Determination and Publicising of Measures in Academies) Regulations 2012. These do not say what the rules should contain, but prescribe the process which the principal of the Academy must follow in setting the rules. So by regulation 2 the principal must consult pupils, parents, staff and the proprietor of the Academy before making any such rules. She must also have regard to any guidance issued by the Academy proprietor. By regulation 3 she must make them ‘generally known’ among parents and pupils and must publicise them ‘in the form of a written document’ and take steps to bring them to the attention of pupils, parents and staff ‘at least once in every school year’.

Surely this was not what was intended by freedom from bureaucratic constraint?


New College of the Humanities again

December 5th, 2011 by Edward Capewell

Some readers may recall my earlier post back in June about Professor Anthony Grayling’s New College of the Humanities. I referred in that post to “grumpy communications from academics at another ‘New College’” which was a reference to the fact that New College Oxford, founded in 1379 by William of Wykeham, had declared itself ‘grumpy’ at the use of its name by this relative newcomer to the world of higher education. BBC News is today reporting that New College Oxford is awaiting a decision by the Intellectual Property Office on an application it has made under the Trade Marks Act 1994 for its name – ‘New College, Oxford’ –  to be a trade mark. Apparently there is a similar pending trade mark application in respect of the name ‘New College of the Humanities’. It is not known which will be determined first, although according to the BBC, New College, Oxford may seek to challenge the registration of the New College of the Humanities.

New College, Oxford was of course itself once the newcomer. Founded by Wykeham as “the college of St Mary of Winchester in Oxford” it very shortly thereafter became known as ‘New College’, rather than St Mary’s College, because there was already a ‘College of the Blessed Virgin Mary’ which had been founded some 53 years earlier in 1326. By one of those happy accidents of history there is now no St Mary’s College in Oxford. The college founded in 1326 is now ‘Oriel College’. I for one don’t know whether there was any dispute in the fourteenth century over names, but one can be pretty confident that if there was, it didn’t involve the Intellectual Property Office.


Education Act 2011

November 16th, 2011 by Edward Capewell

Eagle-eyed readers will doubtless have spotted that the Education Bill is now the Education Act. It received Royal Assent yesterday, 15th November 2011. Practitioners will no doubt warmly welcome a further 83 sections and 18 schedules of education legislation.

How much of it is already in force, and when the rest will come into force, is determined by section 82, to which readers should direct their attention. One provision which came into force yesterday is section 58, the late amendment designed to tidy up the confusion over local authorities’ continuing PFI payments in respect of Academies (see Clive Sheldon’s earlier post on the subject here).

The DfE has a webpage on the Act and supporting documents (including, for those who are interested in these things, the Equality Impact Assessment) here, and you can read and download a pdf copy of the Act from the legislation.gov.uk website here.


Office of the Independent Adjudicator

November 9th, 2011 by Edward Capewell

The Court of Appeal has recently given judgment in R (Maxwell) v Officer of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1236. The Office of the Independent Adjudicator (OIA), for those who struggle to keep up with the ever-expanding list of ombudsmen and regulators, was established by the Higher Education Act 2004 and is a body (a company limited by guarantee in fact) which reviews complaints made by students against higher education institutions. Although it has been found to be amenable to judicial review (see the Court of Appeal’s decision in Siborurema), the extent of the ordinary courts’ intrusion into its decision-making processes is limited.

Put shortly, Ms Maxwell wanted the OIA to have made a finding that she had been discriminated against her on grounds of disability by Salford University. Whilst the complaint she had originally brought had been upheld by the OIA, and recommendations had been made to the University, Ms Maxwell was not satisfied that it had gone far enough. She claimed that the OIA had both the power, and, in the circumstances of her case, a duty, to make a finding of unlawful disability discrimination. It could not rationally ‘take it into account’ without making a finding.

The Court of Appeal disagreed. Lord Justice Mummery, in a typically clear and concise judgment, held that it was the role of courts and tribunals to make findings on issues of disability discrimination; it was the role of the OIA to review complaints made and see if the decision reached by a university was reasonable and justified. He stated:

“…the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination… It is contrary to the whole spirit of a scheme established for the free and informal handling of students’ complaints that the outcomes under it should replicate judicial determinations, which continue to be available in civil proceedings in the ordinary courts, for which the OIA is not and was never intended to be a substitute.”


Academies – Land Transfer

November 9th, 2011 by Edward Capewell

One of the more difficult legal problems surrounding the creation of an academy relates to the transfer of land. Schedule 1 to the Academies Act 2010 gives the Secretary of State a wide power to “make a scheme in relation to land” where certain conditions are met – being in short that the local authority owned the land, used it for a maintained school but is about to cease doing so.  But what information does a local authority need to provide to the Secretary of State so as to ensure that all the loose ends (of which there are often many in real property law) are sewn up when the scheme is made?

That is the purpose of The Academies (Land Transfer Schemes) Regulations 2011 which are currently being consulted upon by the DfE in draft. They will require local authorities to provide the Secretary of State with information and documents – such as title documents, the register entry and plan (if the land is registered), the title deeds (if the land is unregistered) and so forth – when the Secretary of State asks for them.

The consultation will run until 18th January 2012, and local authorities (who are the only consultees) have until then to respond. You can read the brief consultation documents and the draft regulations on the DfE website.


Academies and PFI

October 17th, 2011 by Edward Capewell

There has recently been a degree of confusion surrounding the role of local authorities vis a vis PFI contractors when a maintained school becomes an academy (see Holly Stout’s post in September here). The Department for Education has therefore published an opinion it has obtained from leading counsel on the issue. You can view both the instructions and the opinion on the DfE’s website and read an article about the issue on the website of the Local Government Lawyer.


Education law news round-up

September 2nd, 2011 by Edward Capewell

As people return from their no doubt well-earned summer holidays, there is much to be found in the news which is of interest to education lawyers (and indeed normal people too).

First up, the GTCE has been busy regulating the profession before its forthcoming abolition by the provisions of the Education Bill 2011. On 2nd September 2011, it found teacher Benedict Garrett, otherwise known as ‘Johnny Anglais’, guilty of unacceptable professional conduct and issued him with a reprimand. Something of a moral debate has broken out over whether teachers who earn money on the side in the sex industry are suitable material for the classroom. Unfortunately the GTCE committee’s judgment is not currently available on their website, but you can read Mr Garrett’s take on the whole affair here.

Secondly, the first free schools have been opening their doors. For help on what a free school really is (in strict terms it is simply an academy under the Academies Act 2010) readers of this blog cannot go far wrong with Joanne Clement’s paper on academies which is to be found here. There is also a helpful short paper which has been written by the staff of the House of Commons library which you can find here.

Elsewhere, the DfE has published new statutory guidance on teachers’ pay and conditions and new national minimum standards for residential special schools and boarding schools. When Parliament returns from recess, the Education Bill 2011 will continue its journey through the House of Lords committee stage with a meeting on 12th September. It is now not very far away from receiving Royal Assent.


Building Schools for the Future

July 20th, 2011 by Edward Capewell

In a previous post on the decision in R (Luton Borough Council & others) v Secretary of State for Education [2011] EWHC 217 (Admin) – the Building Schools for the Future case – I described the local authorities’ success as only partial. And so it seems, as Rachel Kamm reported yesterday. The case provides a good example of a very common form of victory in judicial review claims: the Pyrrhic.  Michael Gove, in his statement to the House of Commons on school funding yesterday said:

Some of those local authority areas that had experienced the termination of their BSF projects asked for a judicial review of my Department’s decisions. In February, Mr Justice Holman found in favour of the Department on the substantive matters in dispute, but he found against me on procedural grounds and asked me to look again at the decision in six local authorities. He stressed that the decision to restore all, some or none of the projects was a matter for me. Over the past few months, Ministers and officials have listened carefully to the case made by the six local authorities and I am very grateful to them for the timely and constructive way in which they have presented their case. I have today written to those authorities to let them know that I am minded to indemnify them for contractual liabilities resulting from the stage their projects had reached but Iam not minded to restore their specific BSF projects. They now have a further opportunity to make representations to me before I take a final decision.

Bookmakers are not yet giving odds on whether the final decision will be different from yesterday’s.


Caution – wet floor

July 13th, 2011 by Edward Capewell

In Maddison Hufton v Somerset County Council [2011] EWCA Civ 789, the Court of Appeal dismissed an appeal by a schoolgirl who slipped and fell in a school hall on a patch of water “about the area of an A4 sheet of paper”. In slipping, she had injured her knee, and brought a claim for damages for personal injury against the Defendant Council. The judge in the County Court dismissed her claim, holding that the procedures which the school had in place to ensure the safety of staff and pupils were entirely reasonable.

When it started to rain the school would put up signs warning that there should be no entry to the hall, and place prefects by the doors in order to police entry. Mats would also be put down to soak up any water which was brought into the hall. What had happened in the present case was that the Claimant (and certain others before her) had gained access to the hall in the brief period between it starting to rain and the warning signs being put up. She had then slipped on the patch of water which had gathered in that time. She argued before the Court of Appeal that the school should have had a better system of preventing the floor from getting wet, and, if it did get wet, a better system for mopping up.

The Court of Appeal rejected these arguments. As Jackson LJ remarked, injecting a dose of common sense to the proceedings,  “It is not possible, and the law does not require, the occupier of premises to take measures which would absolutely prevent any accident from ever occurringI do not regard it as realistic to say that the school should have had a system in place whereby that small area of water should have been spotted and mopped up during the brief period of time between its arrival and the moment when the claimant slipped.