Exam Grades

September 1st, 2021 by James Goudie QC

The Decision of the FTT in Ogazi v Information Commissioner, EA/2021/0078, concerns a Freedom of Information Act (FoIA) Request made by a parent of a pupil to a School about the pupil’s GCSE exam grades in 2020. Due to Covid-19 the grades were assessed by schools rather than external examination.  The School provided anonymised information.  It declined to provide information in the format requested, which included the actual final grade for each student in the subject concerned. The refusal was upheld by the Information Commissioner and by the FTT.  This was on the basis of Section 40(2) of FoIA, personal data of third parties, the GDPR and its Data Protection Principles, and the Data Protection Act 2018 definition of “personal data”.  The Decision is of interest both byway of reiteration of the principles to be applied and as to the application of those principles to the facts.

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Teachers (and other public servants) pay

February 18th, 2019 by James Goudie QC

Significant budgetary restraints. A significant deficit in the public finances.  Does that all sound familiar?  It is a feature not only in the United Kingdom but also in the Republic of Ireland.  It is the context of Case C-154/18, Horgan and Keegan v Minister for Education and Skills, in which the Second Chamber of the ECJ gave Judgment on 14 February 2019, on a reference from the Irish Labour Court.

Mr Horgan and Ms Keegan are school teachers.  They work in an Irish State primary school. They are supported by the Teachers’ Union, INTO. Read more »

 

Delegation

June 19th, 2017 by James Goudie QC

Section 125 of the Education Reform Act 1988 provides that any institution conducted by a higher education corporation shall be conducted in accordance with Articles of Government. The Articles must make provision with respect to specified matters.  They may make provision with respect to other matters.  These other matters include procedures for the appointment, promotion, suspension and dismissal of staff.

The Articles of Manchester Metropolitan University contain disciplinary procedures. They give the Vice Chancellor power to dismiss. They do however also enable him to delegate that power, but only to the Director of Human Resources.  She is not authorised to sub-delegate or to share the dismissal power. Read more »

 

Striking teachers

May 24th, 2017 by James Goudie QC

Teachers at a sixth form college participate in a full day of lawful strike action. The collective agreement (the Red Book) incorporated into their individual contracts of employment provides that in such a situation their employer can withhold their pay.  But how much can the deductions be?  That was the issue in Hartley v King Edward VI College  (2017) UKSC 39.  The employer had made the deductions at a rate of 1/260 of their annual pay. That was based on the number of weekdays in a calendar year.  That was wrong say the Supreme Court.  The employer was entitled to make deductions only at a rate of 1/365 of their annual salary. This is the effect of the Apportionment Act 1870 (“the Act”).  This provides for accrual from day to day: Section 2. Read more »

 

Alternative School Site

March 7th, 2017 by James Goudie QC

In Lucas (on behalf of Save Diggle Action Group) v Oldham Metropolitan Borough Council (2017) EWHC 349 (Admin) the Council had been granted funding to redevelop a School, the existing buildings of which were in a poor state of repair.  The funding was from the Education Funding Authority (“the EFA”).  The EFA undertook a Feasibility Study (“the Study”).  The Study looked at various options for the redevelopment.  These included relocation at a new site.  The Study designated the new site as the best option.  This was because the new site offered the best value for money.

The Study confirmed, however, that if the Council chose to redevelop the School on its existing site, that would be funded by the EFA, despite being more expensive. Nonetheless the Council adopted the new site option.

The Council as Local Planning Authority did not take into account as a material planning consideration with respect to the new site that there was the option of redeveloping the school at its existing site. Kerr J held that it should have done so.  It was relevant to the proposed development for a number of reasons, not irrelevant as the LPA had believed.

 

Teacher Misconduct

February 7th, 2017 by James Goudie QC

The General Teaching Council for England was abolished by Section 7 of the Education Act 2011 (“the 2011 Act”). Section 8 of that Act enacted a new statutory code for dealing with misconduct by teachers in England.  It did so by inserting Sections 141A to 141E and Schedule 11A into the Education Act 2002 (“the 2002 Act”). The new scheme came into force on 1 April 2012. Read more »

 

Head Teacher’s Safeguarding responsibilities

July 20th, 2016 by James Goudie QC

A v B Local Authority and C Governing Body of School [2016] EWCA Civ 766 is concerned with whether an ET had been entitled to find that a Head Teacher of a primary school had been fairly summarily dismissed for gross misconduct, i.e. putting the safety of children at risk, for failing to disclose to the school authorities her close personal relationship with a male (IS) convicted of making indecent images of children by downloading them onto his computer. The ET’s finding was upheld by the EAT (Wilkie J presiding) and has now been upheld by a majority in the Court of Appeal (Black and Floyd LJJ).  Elias LJ dissented. Read more »

 

School closure consultation

March 8th, 2016 by James Goudie QC

The School Standards and Organisation (Wales) Act 2013 sets out the process for establishing, altering and discontinuing schools in Wales. R (Edwards) v Flintshire County Council [2016] EWHC 459 (Admin) was an unsuccessful judicial review challenge of a decision by the Defendant LEA to issue statutory notices under Section 48 of that Act to close a High School.  The ground of challenge was that the Council failed, in its consultation process, to comply with its obligation under Section 38(4) of the Act to act in accordance with the Welsh Ministers’ Code of School Organisation. The Act requires the Welsh Ministers to issue a code on school organisation. It may contain requirements and/or guidelines.  By Section 38(4), those who exercise functions in relation to school organisation in Wales, including local education authorities, must, when exercising those functions, act in accordance with any relevant requirements contained in the Code, and have regard to any relevant guidelines contained in it.  Section 48 requires a proposer for change to publish the proposals, consult and publish a report on the consultation, all in accordance with the published code.  In April 2013, the Welsh Ministers published a Code on School Organisation.  It came into force on 1 October 2013. Read more »

 

What is closely related to education provision?

December 3rd, 2015 by James Goudie QC

What constitutes the provision of education, and of the supply of services and of goods closely related thereto, that is exempt from VAT?  This is the question that came before the Court of Appeal in HMRC v Brockenhurst College [2015] EWCA Civ 1196.

The College teaches courses in (a) catering and hospitality, and (b) performing arts. For the purpose of enabling the students enrolled in the course related to catering and hospitality to learn skills in a practical context, the College runs a restaurant. The catering functions of the restaurant are all undertaken by students of the College, under the supervision of their tutors. The public attend the restaurant and pay for their meal, the charge being around 80% of the cost of the meal. Similarly, for the performing arts course, in order to give practical experience to those students enrolled on those courses, the College – again through those students – stages concerts and performances for paying members of the public.

The issue on the appeal was whether the supplies the College makes of restaurant and entertainment services (that is to say, the supplies that are made by the College to those members of the public dining in the restaurant or attending the performances) are, as the College claims, exempt for VAT purposes, because they are “closely related” to the provision of education.

The Court of Appeal made a reference to the CJEU, because (paragraph 28) the interpretation and application of the exemption on the facts of the present case was not acte clair, and “the facts are not unusual and so the decision in the present case has a potentially wide impact”.

James Goudie QC

 

International students

June 18th, 2015 by James Goudie QC

R (London College of Finance and Accounting) v Secretary of State for the Home Department (2015) EWHC 1688 (Admin) is yet another decision on an attempted judicial review of the suspension and/or revocation of a Tier 4 Sponsor Licence.  The power of the Secretary of State (“the SoS”) to issue and regulate Tier 4 Sponsor Licences is one of a range of ancillary and incidental administrative powers vested in the SoS. The regime is effectively run by the ‘UK Visas and Immigration’ (“UKVI”) section within the Home Office and its operation is governed not by the Immigration Act 1971 itself, but within policy guidance documentation (‘Sponsor Guidance’) which is issued and amended on behalf of the SoS with “bewildering frequency” (per Lord Sumption in New London College).

The Sponsor Guidance lays down mandatory requirements governing (i) the criteria for the award of a Sponsor’s Licence, (ii) the obligations of those to whom a Licence has been awarded, (iii) the criteria to be applied by a Licensed Sponsor in issuing a CAS (Confirmation of Acceptance for Studies), and (iv) the procedure and criteria for suspending, downgrading or withdrawing a Sponsor’s Licence. The grant of a CAS by an educational institution is not tantamount to leave to enter or remain, but it is believed to be strong (albeit not conclusive) evidence of some of the matters which are relevant to the migrant’s application in that regard. Leave to enter or remain continues to be the responsibility of immigration officers and the SoS, who retain the last word in each individual case.

The Sponsor Guidance is extensive.  Its key provisions include that:

i) Sponsorship is based on the principle that those who benefit most from migration (including education providers) must help to prevent the system from being abused. Tier 4 is the primary immigration route available to students who wish to study full-time in the UK. Any Licensed Sponsor is expected to play its part in ensuring that the system is not abused;

ii) A Tier 4 Sponsor Licence lasts for four years unless it is revoked or surrendered; each Sponsor is obliged to apply for Highly Trusted Sponsor status no later than 12 months from the date of the grant of the Licence;

iii) Licence to Sponsor Tier 4 (General) applies to migrants aged over 16 coming to the United Kingdom for study (as opposed to Tier 4 (Child) for those aged 16 and under);

iv) Essential to the student’s ability to enter the UK for study is the CAS. The CAS is not an actual certificate or paper document, but is a virtual document similar to a database record. This record will be generated by the Tier 4 Sponsor for each student who they will be sponsoring. Each CAS has a unique reference number, and contains information about the course of study for which it has been issued (including the start and end dates of the course) and the student’s personal details. Having a valid CAS does not guarantee that the student’s application will necessarily be successful but it goes a considerable way to achieving this;

v) Crucially, a Tier 4 Sponsor must assess the student’s level of English language competence as part of the academic assessment of the student’s ability to follow a particular course; before issuing a CAS, the Tier 4 Sponsor must be satisfied that “the student intends and is able to follow the course of study concerned”.

vi) There are various ways in which potential students can demonstrate their English language ability for the purposes of applying for a CAS; they may do so by passing an English language test approved by UKVI (at the appropriate level) or their sponsoring educational institution can judge their English language ability. A small group of suppliers of the Secure English Language Test (“SELT”) is approved by, and work under licence to, the SoS.

vii) The English language tests are all expected to conform with the Common European Framework for Reference (“CEFR”); the relevant test for Tier 4 students was the ‘Test of English for International Communication’ (“TOEIC”) which examines in listening, reading, speaking and writing;

viii)  Under the points based system introduced in 2009, students applying for Tier 4 study require 40 points in order to be considered favourably by the SoS; 30 of those points derive from having a valid CAS from a fully licensed Tier 4 Sponsor, the remaining 10 points are satisfied by proof of financial independence;

ix)  If studying with a Tier 4 Sponsor, a student must obtain a CAS for a course that leads to an approved qualification for Home Office purposes and approved at level 3 or above on the National Qualifications Framework (“NQF”) or Qualifications and Credits Framework (“QCF”) in England, Wales and Northern Ireland;

x)  Where a student is following a course of study at NQF 6 or QCF 6 or above with a Sponsor which is a UK Higher Education Institute, the Sponsor may choose its own method to check that the student is competent in English language at a minimum of CEFR level B2 in each of the four components. The Sponsor must confirm that the student is proficient to the required level on the CAS.

In relation to suspension and revocation of a Sponsor’s Tier 4 licence, the specific provisions of the Sponsor Guidance include that:

i)  The SoS (by UKVI) reserves “the right to take action against the Sponsor if he has reason to believe the Sponsor poses a threat to immigration control”;

ii)  A licence will be suspended if the Sponsor cannot meet the standards UKVI has set for HTS status; this sets a timetable running, giving the Sponsor 20 working days from the date of the notification to submit representations; if following that period, the Sponsor still fails to meet the criteria the HTS licence will be revoked;

iii)  There are exacting requirements for Sponsor compliance: “we expect you to continue to thoroughly assess each student’s intention and ability to undertake their course of study with you before you assign a CAS to them”;

iv)  If UKVI consider that the Sponsor has not been complying with its duties, has been dishonest in its dealings with UKVI, or it is a threat to immigration control in some other way, UKVI will take action against the Sponsor which may be by way of suspension or revocation;

v)  Suspension will occur if UKVI have reason to believe that the Sponsor is breaching its sponsorship duties and/or are a threat to immigration control… to the extent that UKVI may have to revoke the Sponsor’s Licence;

vi)  While suspended, a Sponsor is unable to issue any new CAS; students already Sponsored will not be affected;

vii)  Suspension can take effect in one of two ways:

(a)  “if we are satisfied that we have enough evidence to suspend your licence without the need for further investigation. We will write to you giving detailed reasons for suspending your licence”;

b)  “if we have evidence that warrants your licence being suspended pending a full investigation, we will write to you giving our initial reasons for the suspension and informing you that an investigation will take place … when we have finished our investigation we will write to you again, giving detailed reasons for suspending your licence.”.

viii)  Where paragraph 153(a) is invoked, the Sponsor is given 20 working days from the date of the written notification to respond to UKVI in writing (including sending in evidence); where paragraph 153(b) is invoked there is a built-in provision for the Sponsor to make representations during investigation;

ix)  If further reasons are identified for the suspension during the 20-day period, UKVI will write again to the Sponsor giving an additional 20 days to respond;

x)  UKVI will notify the Sponsor of its decision within 20 working days of receiving the Sponsor’s response, unless there are grounds for delaying the response;

xi)  In certain circumstances UKVI will implement revocation of the Sponsor Licence. Mandatory revocation will occur for any “single” reason (of the twenty possible reasons) set out in a Table in the Guidance, including when:

“[the Sponsor has] offered places and assigned CAS for students who are not from the countries we define as ‘majority English-speaking countries’, without first properly assessing their English language ability”;
And
“[the Sponsor has] offered places to Tier 4 (General) students and the main course of study does not lead to an approved qualification for our purposes”.

xii)  The summary and final nature of the revocation is underlined by §166 which provides that:
“If any of the circumstances in the table above arise, we will revoke your licence immediately. We will write to tell you that we have revoked your licence. There is no right of appeal…”

xiii)  The discretionary route to revocation of the licence is provided for in paragraph 167 of the Sponsor Guidance which provides that consideration will be given to the revocation of licence where (among twenty-seven possible reasons):

i) The Sponsor has failed to comply with any of its duties;

ii) “[UKVI is] not satisfied that [the Sponsor is] using the processes or procedures necessary to fully comply with [its] Sponsor duties”.

xiv)  This discretionary route is further explained by paragraph169 which provides:

“We may not always revoke your licence in the circumstances set out in the table above. Whilst we cannot precisely define the exceptional circumstances in which we will not, this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address these issues”.

Cobb J set out all of the above in his Judgment in the London College of Finance & Accountancy case, and then distilled the following propositions from the case law which were relevant to that case:

i)  The status of a Licensed Sponsor is central to the operation of the points-based system for international students; for institutions with a high proportion of non-EEA students, the status of Licensed Sponsor may be essential to enable them to operate as functioning businesses;

ii)  The SoS must be able to repose very substantial trust in Sponsors in the vital function of monitoring compliance of its students with immigration law;

iii) The SoS rightly has “stringent” powers to suspend or revoke a Sponsor if they become concerned that the Sponsor is not complying with its obligations;

iv) The SoS “can and indeed should” take steps to suspend or revoke if she has reasonable grounds for suspecting that “a breach of immigration control might occur”;

v)  The Courts must respect the particular experience and expertise of UKVI in detecting the possibility that a Sponsor might not be, or might be at risk of not, complying with its duties; the exercise of the SoS’s discretion should not be interfered with lightly; the Court is exercising a supervisory jurisdiction;

vi) The SoS can take steps to revoke or suspend if she has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that she complies with her public law duties;

vii) Authorisation to grant a CAS is a “privilege”, and carries with it significant responsibility; a Sponsor, therefore has a substantial duty to ensure that the rules relating to immigration control are adhered to strictly and properly; colleges need to be “assiduous” and “vigilant” in meeting their responsibilities;

viii) Even if some of the cases give rise to consideration of the same regulatory territory, each case is fact-specific.

Cobb J further observed as follows:-

“31.   The accreditation issue: Accreditation is the process by which an awarding body decides whether or not a course, or courses, provided by a given college meets its standards. If a college offers a place on a course leading to a qualification for which it has not been accredited, it is, in essence, offering its own course and its own qualification. … The Claimant’s argument is that as long as the course was accredited by the time it was actually provided and/or completed, then the Sponsor had complied with the expectation of the Guidance. The Defendant argues that the accreditation must be in place before the course is offered.

32. In my judgment, the Sponsor must be in a position to ensure that “the main course of study” should lead to “an approved qualification” at that time that it is “offered to Tier 4 (General) Students” in order to comply with the Sponsor Guidance (emphasis by underlining added). It is not appropriate, or in the spirit of the Sponsor Guidance, for Sponsors to offer the course on the basis of a hope or expectation of accreditation at some point further down the line. What if the course is not ultimately accredited? It would mean that the students would not be engaged in a course of study which leads to an approved qualification. … Where any doubt exists about the interpretation of the Sponsor Guidance (even though no doubt exists in my view here),  … the guidance should be interpreted strictly.”

“38. … students who wish to study in the United Kingdom must demonstrate that they have an adequate understanding of English, and that they can communicate in English to a reasonable level. … The responsibility of the Tier 4 Sponsor is to satisfy itself that at the point of application the proposed student has the ability (including the English language ability) and intention to undertake their course of study and that this is demonstrated to the satisfaction of the Tier 4 licence holder during the currency of the course …

39. In this case, as in Cranford and other cases, a significant ground for concern was the issue by the Tier 4 Sponsor of large numbers of CAS to students who had apparently cheated in their TOEIC test. As to the approach I should adopt to this particular issue, I respectfully follow Andrews J in Cranford thus:

19.  “Of course each case is highly fact-specific. However, the following general principles can be distilled from [recent authorities]:

i)  If a Tier 4 Sponsor has assigned CAS’s to a significant number of students with “invalid” ETS TOEIC results, and then failed to report them as having inadequate English, that gives grounds for reasonable suspicion that the Sponsor was failing in its duties to:

a)  Adequately assess the ability and intention of the students to study on the chosen course before assigning CAS’s to them and

b)  Monitor, and report bogus students to the UKBA.

ii)  The onus is on the Sponsor to allay that suspicion, for example by providing examples of coursework demonstrating that the students did in fact speak/understand English to the appropriate standard;

iii)  If the SSHD takes a Wednesbury reasonable view that the evidence is insufficient to allay that suspicion, she is entitled to revoke the Tier 4 licence.”

40. Consistent with this approach is the fact that within the Sponsor Guidance, mandatory grounds for revocation include that the Sponsor has “offered places and assigned CAS for students … without first properly assessing their English language ability”.”

“42. “… If a student obtains any document in pursuit of his/her immigration application by deception, that person is not likely to be concerned with complying with the Immigration Rules. It is reasonable for the Defendant to have inferred that such individuals are more likely to be using a Tier 4 migrant visa as a means of getting into the UK for another purpose. This point comes back to the important and overarching expectation on Sponsors to have identified and rejected (or reported) such persons either at the candidate selection stage or after enrolment.

43. The Defendant was also entitled to the view that where significant numbers of students had fraudulently obtained the TOEIC certificates it would be a “significant gauge” of the college’s ability or willingness to monitor its students if they were not, during the course of their studies, discovered by the college to have inadequate English language skills…

44. The Defendant asserts with force it seems to me that a trustworthy Sponsor should notice if the student spoke inadequate English, or failed to turn up for classes or do their coursework. If a Sponsor did notice such failures, they should withdraw sponsorship.”

James Goudie QC