Non-maintained special schools

July 13th, 2011 by Edward Capewell

The Education (Non-maintained special schools) (England) Regulations 2011 (SI 2011/1627) were laid before Parliament on 8th July 2011 and will come into force on 1st September 2011. They are intended to align the requirements for non-maintained special schools with those for maintained special schools and they consolidate with amendments previous regulations from 1999. Notable effects of this SI include:

– Providing proprietors of such schools with an appeal to the First-tier tribunal against certain decisions of the Secretary of State (to withdraw approval etc.). Previously only judicial review was available

– Making provision for sixth-formers to withdraw from attending acts of religious worship. This aligns non-maintained schools with maintained schools.

– Removal of the requirement (previously in the 1999 regulations) for a non-maintained special school to provide a copy of its prospectus to the Secretary of State

You can read the regulations here and the explanatory memorandum here, both on the government’s helpfully tidied-up website.


New College of the Humanities

June 10th, 2011 by Edward Capewell

The controversial “New College of the Humanities” of which Anthony Grayling will be the first master, and Richard Dawkins and Niall Ferguson amongst its first faculty members, has described itself as an ‘independent university college’. It is wrong to do so the Department for Business Innovation and Skills has said. Why?

The question ‘what in law is a university?’ is not altogether simple. For two universities it is reasonably easy to answer: see the Oxford and Cambridge Act 1571 (still in force). Generally speaking, pre-1992 universities operate under statutes like this one and a Royal Charter granted through the Privy Council. Universities established after 1992 derive their university status and degree-awarding powers from the Further and Higher Education Act 1992. Section 77 of that Act provides that the consent of the Privy Council is required in order for a higher education institution to use the word ‘university’ in its title. This includes the term ‘university college’. It would appear that the New College of the Humanities may not yet have applied for the Privy Council’s consent.

Professor Grayling may be the target for smoke bombs from disgruntled students and grumpy communications from academics at another ‘New College’, but he is at least not likely to be imprisoned for his ‘university’ misdemeanour. Although it is a criminal offence under the Education Reform Act 1988 for a body to award a UK degree when it is not authorised to do so, students at New College will receive their degrees from the University of London.



May 11th, 2011 by Edward Capewell

The London Legal sponsored walk takes place next Monday (16th May), and 11KBW are fielding a team of 16 walkers. We are raising funds for the London Legal Support Trust which funds Law Centres and pro bono agencies in and around London. We know from our own pro bono work that these agencies do a fantastic job in preventing homelessness, resolving debt problems, gaining care for the elderly and disabled and fighting exploitation.  In the current economic climate their work is more important than ever.

It would be great if readers of this blog could sponsor us here.  If you’ve found the blog useful or helpful over the last 9 months, and would like to show your appreciation, then now is the time!


SEN Green Paper

April 7th, 2011 by Edward Capewell

On 7th April 2011 Tim Kerr QC and Edward Capewell spoke to a meeting of the West Midlands Education Special Interest Group on the Education Bill 2011. You can see the papers on the Bill which were delivered on our website.

Tim Kerr also wrote and delivered a talk on the recent Green Paper on Special Educational Needs – “Support and aspiration: A new approach to special educational needs and disability” (see Rachel Kamm’s introductory blog post on it here). To read Tim’s paper, which gives a detailed overview of the content of the green paper, click here.


Judgment in Building Schools for the Future

February 11th, 2011 by Edward Capewell

The High Court has today handed down its decision in the Building Schools for the Future judicial review – R(Luton and others) v Secretary of State for Education [2011] EWHC 217 (Admin) – in which the Claimants were partially successful. A copy of the judgment is available on Bailii here.

The case of course concerned the coalition government’s well publicised cancellation of the BSF programme and the effect this had on a number of local authorities whose school building projects were cancelled at a preliminary stage.

BSF was a complex and, in the eyes of the Secretary of State, unduly ‘bureaucratic’ and expensive process. Essentially it consisted of a number of steps. The first was an expression of interest from a local authority. Then followed the development of a ‘strategic business case’ (SBC), then an ‘outline business case’ (OBC). That, in most instances, triggered the formation of a ‘Local Education Partnership’ (LEP) which was a joint venture for the delivery of the projects. After OBC approval had been given, an authority would do further preparatory work and move to a ‘Final Business Case’ (FBC). FBC approval would lead to  the swinging open of the door to the Treasury vault with the issue of a promissory note.

The claims arose because the Secretary of State took a decision on 5th July 2010 to cancel all BSF projects which had received OBC approval after 1st January 2010 but which had not reached FBC approval by the date of his decision. Five of the Claimants had school building projects which fell into this group of unfortunates. The sixth Claimant, Sandwell MBC, was in a slightly different position having attained OBC and FBC approval for an earlier ‘wave’ of projects, but having not yet reached even OBC for the most recent wave.

Mr Justice Holman noted that “the claimants invoke several of the well established and well-known grounds of judicial review challenge” although “the case does not involve any new principle of law” (para 7). He also observed that the case was one of considerable dimensions – 13 counsel (inlcuding 6 QCs), 7500 pages of documents, a bundle of 70 authorities, and around £1 billion potentially at stake. The judge however preferred to consider the case “in a relatively impressionistic way, focussing on the wood rather than the trees, and without over-immersion in, or reference to, the mass of detail in both the facts and the arguments which have been advanced” (para 8).

At paragraph 44 the judge identified five broad heads of challenge to the Secretary of State’s decision: (i) that it was irrational, (ii) that by adopting a ‘rules based’ approach he had fettered his discretion, (iii) that it breached substantive legitimate expectations of the Claimants, (iv) that the Claimants had a legitimate procedural expectation that they would be consulted prior to it being taken, and (v) that the Secretary of State had failed to discharge his statutory equality duties.

In short, the judge’s conclusions on each head were as follows:

(i) Irrationality: Holman J gave short shrift to the Claimants’ irrationality argument saying that he was “absolutely clear that the decision is not open to challenge on a discrete ground of irrationality, however that argument is developed or put.” The Secretary of State and his officials had understood what they were doing, had drawn clear lines between those situations in which funding would continue and those in which it would be stopped, and had made certain rational exceptions to the general rule. These decisions were political decisions, not for further examination by the court as that, in the judge’s view, “would be a grave and exorbitant usurpation by the court of the minister’s political role” (para 48)

(ii) Fettering: The judge accepted the Claimants’ argument that by adopting a too-rigid set of rules for determining which projects would go forward and which would not the Secretary of State had unlawfully fettered the very broad discretion he had under section 14 Education Act 2002. The Secretary of State’s rules, the judge held, “were indeed applied, and continued to be applied, in a hard edged way, with no residual discretion.” (para 61)

(iii) Substantive legitimate expectation: As for the Claimants’ argument (put slightly differently in respect of each of the different Claimant authorities) that the “content and effect of their OBC approval letters” (para 67) grounded a substantive legitimate expectation that funding for the schools in question would be granted, the judge preferred the submissions made on behalf of the Secretary of State. The law accepts that “public bodies, and especially central government, must enjoy a wide discretion to change policies from time to time to reflect their conception of the public interest.” (para 79) Given that the authorities must have known that there was bound to be a general election not later than June 2010, “no authority with anything less than FBC approval and a promissory note can have had any legitimate expectation that any project would still go ahead after that general election.” (para 80)

(iv) Consultation: In respect of the procedural legitimate expectation of consultation, the judge held, following the analysis of Laws LJ in the Bhatt Murphy case ([2008] EWCA Civ 775), that the fact that the DfE and the local authorities “had been in continuous and intense dialogue with each of the claimants over many years…often on relatively informal first name terms” (para 93) meant that the Secretary of State’s conduct in relation to the Claimants (save for Sandwell BC) “was indeed “pressing and focussed” and change could not lawfully be made abruptly without some prior consultation.” (para 94). That ‘prior consultation’ had not taken place. Holman J trenchantly concluded (with respect to all of the Claimants except Sandwell): “In my view, the way in which the Secretary of State abruptly stopped the projects in relation to which OBC approval had already been given, without any prior consultation with the five Claimants, must be characterised as being so unfair as to amount to an abuse of power. However pressing the economic problems, there was no “overriding public interest” which precluded any consultation or justifies the lack of any consultation…” (para 96) The judge also accepted that even in respect of Sandwell, whose position was rather different, the failure to consult had been unlawful (para 97)

(v) Equality duties: As far as the Secretary of State’s compliance with the statutory equality duties in the Sex Discrimination Act 1975, Race Discrimination Act 1976 and Disability Discrimination Act 1995 goes, Holman J was not at all convinced that these duties had been discharged “in substance and with rigour” as required. Indeed there was almost no material whatsoever which demonstrated that the Secretary of State had had any regard to adverse impact on any of the relevant protected characteristics. The judge held that the absence of a single reference in option papers placed before Ministers to disability, race or gender impact was “glaring and very telling“. He was “simply not satisfied that any regard was had to the relevant duties at all, let alone rigorous regard.” (para 114)

The outcome of the case is therefore that the Secretary of State must allow the local authorities to make representations to him and then “reconsider his decision insofar as it affects the claimants and each of the projects in relation to which they have claimed, with an open mind, paying due regard to any representations they may make, and rigorously discharging his equality duties.” (para 122).

The judge made two matters abundantly clear at the close of his judgment however. First that the ‘bandwagon’ has now stopped, and any further claims by other local authorities are now well out of time (para 125). Second, that the mandatory effect of his decision extended only to making the Secretary of State reconsider his decision – “the final decision on any given school or project still rests with him” (para 126). I said at the outset of this post that the Claimants were only partially successful.


Education Bill

January 31st, 2011 by Edward Capewell

As readers of this blog may have seen, the government’s new Education Bill had its first reading in the House of Commons on 26th January 2011. You can view the Bill and the Explanatory Notes to it (prepared by DfE) from this page. The Bill makes amendments to the existing education law statutes (interestingly, as you can see from the Glossary in the explanatory notes, there have been, excluding the Children Act 1989, 16 education statutes in 18 years, from the Further and Higher Education Act 1992 to the Academies Act 2010. The torrent of legislation seems set to continue under the present government) and takes forward proposals in the White Paper The Importance of Teaching, published in November last year.

There has, so far, not been a lot of media coverage of the Bill, although there is a good general introduction on the BBC news website. That article includes a number of quotes from the Secretary of State which can also be read in the press release on the DfE website. It also notes that the Labour party has accused the government of “going back to the 1950s” in the Bill, although Stephen Ball in this article in the Guardian finds the Bill taking us “back to the 19th century”. The Daily Mail meanwhile focuses on the Bill’s proposals to give pre-charge anonymity to teachers facing accusations from pupils.

Away from the political controversy that the Bill will undoubtedly generate, 11KBW’s education law group will soon be hosting a seminar on the legal changes that the Bill will bring if passed. Watch this space for details.


One in 10 schools is now an academy

January 6th, 2011 by Edward Capewell

More information from the Department for Education today on the progress of the Academies Programme. According to this press release more than one in ten schools is now an Academy. There are now 407 Academies, 203 set up by the last government, and 204 set up by the Coalition since September 2010 (the figures may be slightly misleading as it is not clear how many of the 204 were already in the pipeline to become Academies before the Coalition programme began). 46 schools are opening as Academies in this week alone. As at 5th January 2011 there were 390 applications to become Academies (including those which have already opened) and 248 Academy orders have been signed.371 secondary schools are now academies, which is 11% of the total.

It is also possible to read case studies on the DfE website of schools which have recently converted to Academy status. Perhaps needless to say, these are all very positive about the benefits of converting to Academy status, but this BBC news report contains some less complimentary views.  The teachers’ unions are, generally speaking, hostile to the idea, with the deputy general secretary of the ATL union saying that the “academies policy leads to anarchy, breaking up the local education system, preventing sensible and efficient planning, and opening up free-floating schools to private firms with profit motives.


Higher Education Funding

December 9th, 2010 by Edward Capewell

Tempers are running high both inside and outside the Palace of Westminster, as the Speaker of the House of Commons has just called the first of two divisions (votes) on the coalition government’s plans to raise tuition fees. But what are MPs actually voting on?

The first vote relates to section 24 of the Higher Education Act 2004 which provides, in short, that a governing body of a relevant higher education institution may not set fees above a specified  “higher amount”. That higher amount is currently set by regulation 4 of the Student Fees (Amounts)(England) Regulations 2004 at £3290. Regulation 5 sets a higher amount for courses of a certain length. That is currently £1640. The first vote in the Commons today is therefore in the following terms:

“That, for the purpose of section 24 of the Higher Education Act 2004, the higher amount should be increased to £9,000, and to £4,500 in the cases described in regulation 5 of the draft regulations in Command Paper Cm 7986, and that the increase should take effect from 1 September 2012.”

The second vote then is to approve the draft regulations (which you can find here) which will make these changes. These are The Higher Education (Basic Amount)(England) Regulations 2010. The vote is in these terms:

“That the draft Higher Education (Basic Amount) (England) Regulations 2010, which were laid before this House on 29 November, be approved.”

Will the ayes have it?


The importance of teaching – the Schools White Paper 2010

November 26th, 2010 by Edward Capewell

“At the heart of our plan is a vision of the teacher as our society’s most valuable asset…There is no calling more noble, no profession more vital and no service more important than teaching”. So says Michael Gove MP in his foreword to the White Paper published on 24th November (see Tim Kerr’s preview here) which sets out the coalition government’s aims for education in schools. Driving the whole paper appear to be two aims: (i) to break the correlation between wealth and educational attainment (the current situation being exemplified by the stark statistic that in 2007/2008 only 40 of 80,000 pupils eligible for free school meals went to Oxbridge – fewer than the number sent by Winchester College); and (ii) to ‘keep up’ with our international competitors.

This post focuses on changes to teaching and school discipline which the White Paper foreshadows. Some of the changes are relatively minor and un-surprising, some are more radical. This post describes a selection of the more interesting among them.

The government wants to change teachers’ performance, pay and capability procedures. More specifically, it wants to give more ‘freedom’ to schools to set them themselves. On pay the paper states:

–          “early in 2011 we will ask the School Teachers’ Review Body to make recommendations on introducing greater freedoms and flexibilities that will make the pay and conditions framework less rigid. We will consult on their recommendations, so that new and more flexible pay arrangements can be introduced at the end of the current pay freeze.” (2.31)

On performance and capability, it had been reported that the government wants to make it easier for head teachers to sack bad teachers. The paper states:

–          “The current regulations on teacher competence are complex, lengthy and fragmented. We will shorten and simplify them and remove the current duplication between the performance management and the ‘capability’ procedures for managing poor performance. This will enable head teachers to deal more swiftly, effectively and fairly with underperforming members of staff.” (2.33)

On 2nd June 2010, the government announced that it would be scrapping the General Teaching Council for England. No specific mention is made of the maintenance of a teaching register, but there will be a new, publicly available, ‘barred list’:

–          “After we abolish the GTCE in the forthcoming Education Bill…we will put new arrangements in place for the regulation of the teaching profession and for dealing with professional misconduct and incompetence. The Department will have the powers, where necessary, to bar teachers from the profession. There will be a simple list of those who have been barred which employers and the public will be able to access, and the disciplinary process will be simplified further by reducing the current range of sanctions to a ruling that a teacher will either be barred or not.” (2.36)

Much of the White Paper focuses on the need to reduce ‘bureaucracy’ which includes a welcome pledge to avoid over hasty resort to legislation:

–          “…we will remove statutory duties and requirements which we do not think need to be a legal requirement. Many of these requirements are ‘declaratory’ – they have little practical force – or else cannot reasonably be policed and enforced. Legislating in these areas is in our view ineffective…” (2.49)

Certain ‘duties and requirements’ are singled out for abolition:

–          “We will legislate to remove the duty on schools and colleges to cooperate with Children’s Trusts and abolish the requirement for local authorities to produce a Children and Young People’s Plan.” (2.50) The duties referred to here are those amendments made to sections 10 and 17 Children Act 2004 by sections 193 and 194 Apprenticeships, Skills, Children and Learning Act 2009.

–          “We will remove prescription on school governing bodies, simplifying the list of decisions that they are required to take” (2.52) “We are also removing the expectation on every school to complete a centrally designed self-evaluation form” (2.53) “we will abolish the Financial Management Standard in Schools (FMSiS) because it has become a tick-box paper exercise…”

–          “…we will legislate to abolish the requirement to give 24 hours’ notice for detentions.” (3.8) This is section 92 Education and Inspections Act 2006.

Statutory and non-statutory guidance will be cut down to a length suitable for holiday reading:

–          “we are reviewing all existing guidance, aiming to remove what is not necessary and sharply cut back what is left. We aim to establish a simple, definitive suite of guidance which can reasonably be read by a head teacher over a half-term break” (2.58)

–          In particular “Existing anti-bullying guidance is too long and fragmented, so we will rationalise and simplify this from nearly 500 pages to around 20 pages.” (3.21)

There are some new powers however, most notably those ‘quasi-police’ powers which Mr Gove had suggested he wanted to introduce. The White Paper says this:

–           “Teachers have been given powers to use force or physical restraint where necessary…” (which is presumably a reference to sections 242-245 Apprenticeships, Skills, Children and Learning Act 2009 which added sections 550ZA ff to Education Act 1996 and were brought into force on 1st September 2010. These give teachers a power to search pupils for alcohol, knives and other weapons, controlled drugs and stolen property. This will be “extended to include pornography, tobacco, and fireworks“(3.10)). Furthermore, the government will “issue a short, clear, robust guide on teachers’ powers to use reasonable force… [and] will legislate through the forthcoming Education Bill to give teachers a more general power to search for any item which they reasonably believe is going to be used to cause harm to others or to break a law…” (3.9-3.10)

There are also plans to protect teachers from ‘false allegations’ made against them, though it remains a little unclear by whom, or at what point, an allegation will be deemed to be ‘false’. The White Paper states that DfE will work with local authorities, the Home Office and ACPO on ‘speeding up’ investigations, “without compromising their integrity”. These are some of the other plans:

–           “…we will legislate to give anonymity to teachers accused by pupils” (3.11)

–          “We will update guidance to schools to ensure that allegations against a teacher do not automatically result in their being suspended. Where there are no risks to children, we want to see alternatives explored…” (3.13)

–          “…We will clarify that in future when employers are asked to give references for teachers they should never be required to report prior allegations which were found to be malicious or untrue. We will legislate to introduce reporting restrictions that prevent a teacher’s identity being revealed until the point at which they are charged with a criminal offence.” (3.14)

Last, but certainly not least, the government wants to reform the current system of exclusion appeals. The intention appears to be to make the Head teacher’s decision on exclusion more conclusive as IAPs will no longer have the power to re-instate a pupil, irrespective, it seems, of the needs of the child or the gravity of the error in excluding:

–           “…the possible re-instatement of an excluded pupil – however rarely this happens – can undermine the head teacher’s authority. We will legislate to reform independent appeals panels, so that there is still an independent review of decision making, but the review will not be able to compel re-instatement. If the review panel judges that there were flaws in the exclusion process thy can request that governors reconsider their decision and schools may be required to contribute towards the costs of additional support for the excluded pupil. But schools will not be forced to re-admit children who have been excluded.” (3.29)

The decision to exclude may also soon become one of very considerable consequence for the school itself however, under “a new approach” that the government “plan to trial”. This approach has strong echoes of the plan outlined in the Health White Paper to get GPs to commission hospital services themselves. It will operate like this:

–          “Schools will be free to exclude pupils, but they will then be responsible for finding and funding alternative provision themselves…we will explore shifting the money for alternative provision from local authorities to schools so schools can purchase for themselves the alternative provision they think will best suit disruptive children.” (3.38)

–          The government does accept however that “certainly in the short to medium term, we would need local authorities to retain a duty to ensure that sufficient provision is available, and to take responsibility for quality assurance. Over time, we hope to see responsibility pass more and more to schools themselves.” (3.41)

My next post will look at what the White Paper holds in store for the organisation of the Schools system, particularly the much-reported pledge to make Academies ‘the norm’.


Ofsted Annual Report

November 25th, 2010 by Edward Capewell

On 23rd November 2010 the Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills, better known as the Ofsted Annual Report was published. The report is of course made pursuant to section 121 of the Education and Inspections Act 2006. It can be read here and there is a rather more easily digestible (though quite brief) summary here. The report of course covers the full range of Ofsted’s responsibility – so includes children’s social care and local authority children’s services – but the lion’s share deals with schools (see paragraph 51ff). I set out in this post some of the more interesting features of the report (with apologies for the torrent of statistics):

–          There were nearly 32,000 inspections and regulatory visits made between September 2009 and August 2010. That included inspections of over 6,000 maintained schools      (including academies) and 300 independent schools.

–          Of those schools inspected in 2009-2010, 13% were ‘outstanding’, 43% were ‘good’ 37% were ‘satisfactory’ and 8% were ‘inadequate’ (figures are rounded).

–          The number of outstanding schools was down from 19% the previous year and the number of inadequate schools was up 4% (from 4%). Ofsted is at pains to emphasise however that those figures are largely attributable to the new, more rigorous, section 5 Education Act 2005 framework for inspections which was published on 6th August 2010 (but applies to inspections carried out from September 2009) (fig 16).

–          55% of schools which were outstanding when last inspected were no longer outstanding when inspected in 2009-2010.

–          Nursery schools had the highest proportion of outstanding inspections (59%) with primary schools having the lowest (9%) (fig 13).

–          Nursery schools also had the lowest proportion of inadequate schools (3%) with secondary schools having the highest (13%).

–          Special schools generally performed better than ordinary maintained schools with 35% rated outstanding and 43% good (paragraph 58). However those figures hide considerable discrepancies between types of special school: those catering for children with behavioural, social and emotional difficulties were less than half as likely to be outstanding and more than twice as likely to be inadequate as other special schools. These issues are dealt with in more detail in Ofsted’s recent report on SEN (September 2010).

–          The figures for quality of teaching in different types of school are striking. The teaching in 57% of nursery schools was rated outstanding – the figure for primary schools a mere 5% and for secondary schools only 4%. 52% of primary schools and 47% of secondary schools provided good teaching however (fig 22).

–          Of 43 academies inspected, 11 were outstanding, 9 were good, 20 were satisfactory, and three were inadequate. Most of the academies inspected however were section 482 academies (typically converted from ‘failing schools’) rather than what the report describes as ‘fast track’ Academy Act 2010 academies (converted from outstanding schools) (paragraph 127).

–          The best academies, the report states, have “inspirational leadership”, ”a distinctive and flexible curriculum including a wide range of academic and vocational choices”, “highly committed and effective governance”, “very high and shared expectations across all classrooms” and “stimulating and interesting lessons” (paragraphs 130-132).

–          As at 31st August 2010, there are 300 schools (1.3% of the total) in special measures and 276 (1.2%) which have been given a notice to improve. (For more detail on the destinations of schools placed in special measures or given a notice to improve last year see paragraphs 440-514).

The Prime Minister’s foreword to the White Paper published yesterday promises to “re-focus Ofsted inspections on their original purpose – teaching and learning…” which appears to suggest that there will be another new framework for inspections soon. That no doubt means we can look forward to next year’s statistics not being directly comparable to this year’s, in the same way that this year’s are not directly comparable to last year’s. Not, perhaps, exactly a recipe for achieving what the White Paper calls “a streamlined and effective accountability system”.