11KBW Education Conference, 13th November 2014

October 8th, 2014 by Panopticon Blog

11KBW Education Group presents a half day conference on 13th November 2014, focusing on updates in legislation, case law and the day to day issues faced in the Education Sector with topics on: Children and Families Act 2014/special educational needs, academies, transport, exclusions, discrimination and human rights.

Peter Oldham QC will be chairing the conference.

Conference agenda

TIME Topic Speaker
9.15am Registration  
9.45am Introduction from Chair Peter Oldham QC
9.50am Special Educational Needs 1 Rachel Kamm
10.15am Special Educational Needs 2 Joanne Clement
10.40am Academies Jonathan Moffett
11.20am Exclusions Tom Ogg
11.55am Transport Paul Greatorex
12.20pm Discrimination and Human Rights Tom Cross
12.45pm Q&A  
1.00pm LUNCH


Conference Information

Date: 13th November 2014.

Time: Registration from 9.15am. The conference will start at 9.45am until 1pm, with lunch being served afterwards.

Venue: Crown Plaza, 19 New Bridge Street, London, EC4V 6DB

CPD: The conference will be accredited 2.5 hours with the SRA and BSB

How to book

Cost per delegate will be £40.00 + VAT.

To book your place on the conference please email: rsvp@11kbw.com You will be sent an invoice. We do not have the facilities to take payment by credit or debit card.


Opening A Free School

October 15th, 2013 by Panopticon Blog

Webcast by Thomas Ogg on Opening a Free School.

Thomas covers;

• Status
• Governance
• Consultation
• Funding agreement

To view the webcast – click here


Education Challenges in Wales

April 12th, 2013 by Panopticon Blog

Joanne Clement wrote and delivered an outline of Education Law challenges in Wales for the PLP Wales Conference (11th April 2013).

This talk looked at the opportunity for public law challenges arising from Welsh education

legislation, focusing on:

(1) Special educational needs and the Special Educational Needs Tribunal for Wales

(2) School exclusions and independent appeal panels

(3) School closures, re-organisations and associated provision for both Welsh and English language schools

To read the paper click here.


Recent developments in education law in Wales

April 3rd, 2013 by Panopticon Blog

On 28th March, Joanne Clement, Jonathan Moffett and Rachel Kamm spoke at a Welsh Local Authority Training Consortium event in Cardiff. The focus of the event was on recent developments in education law in Wales, and Joanne spoke on the reform of the law relating to special educational needs and recent issues arising in relation to school transport, Jonathan spoke on the new School Standards and Organisation (Wales) Act 2013, and Rachel spoke on disability discrimination and exclusions. Copies of their papers can be viewed here.


11KBW Education Conference, 27th November 2012

September 28th, 2012 by Panopticon Blog

“thorough understanding of the education sector.”
Chambers & Partners

11KBW Education Group presents a one day conference focusing on updates in legislation, case law and the day to day issues faced in the Education Sector.

Key areas covered include:
• 2011 Act
• Education and Human Rights
• Academies
• Exclusions
• Case study in the form of “trial” argued by 11KBW members

Peter Oldham QC

James Goudie QC, Tim Kerr QC, Clive Sheldon QC, Holly Stout, Tom Cross, Rachel Kamm & Joanne Clement.

Date & Venues
27th November 2012, Crowne Plaza, 19 New Bridge Street, London EC4V 6DB

Registration from 9.30am
Conference starting at 10.00am finishing at about 3.30pm

£70 + VAT per delegate
Please email the name of the delegate you wish to book, along with their email address and invoice details to Claire Halas – Claire.Halas@11kbw.com

The conference will be accredited with 3 hours CPD


Al Huda v Secretary of State for Education

June 28th, 2012 by Panopticon Blog

Holly Stout, instructed by Michael Brotherton of Stone King, represented Al Huda Girls’ School in the first ever successful appeal against a decision by the Secretary of State for Education to remove a school from the Register of Independent Schools.  The Tribunal found there was a reasonable prospect of the School meeting the requisite standards within a reasonable period and observed that the Secretary of State had given insufficient consideration to the difficulties that closing the school would present for the 80+ Muslim girls who attend it.  Having decided to allow the appeal in any event, the Tribunal found it unnecessary to adjudicate on whether or not the Secretary of State had breached the equality duty in s 149 of the Equality Act 2010, but indicated that in its view this should have been considered from the outset and that the Secretary of State’s retrospective consideration of the duty was not impressive.


Unsuccessful challenge to change from RPI to CPI in public sector pensions

December 5th, 2011 by Panopticon Blog

R (ota) The Staff Side of the Police Negotiating Board and others v The Secretary of State for Work and Pensions and others

A Divisional Court of three judges (Elias LJ, McCombe and Sales JJ) has by a majority rejected the judicial review challenge brought by a number of public sector in R (ota) The Staff Side of the Police Negotiating Board and others v The Secretary of State for Work and Pensions and others [2011] EWHC 3175 (Admin).

Nigel Giffin QC acted for a number of the public sector trade unions. Clive Sheldon QC and Amy Rogers acted for the Government defendants.

The decision under challenge

The challenge was to the Government’s decision to change the basis upon which public service pensions are adjusted to take account of inflation. Such adjustments had been made in line with the Retail Price Index (“RPI”). From April 2011 they are to be made in accordance with the Consumer Price Index (“CPI”). Some of the schemes fix pensions by reference to an employee’s final salary and newer schemes fix it by reference to the average salary over the employee’s career. In both cases the change affects the value of pensions in payment, and in the case of career average schemes, it also affects the way in which the career average is calculated.

It was common ground that the move to CPI has had, and will have, a detrimental effect on pensioners because although there may be some years where CPI will yield a higher increase than RPI, the overall picture is that RPI is typically in the region of 0.75-1% higher than CPI. It has been estimated that the change from RPI to CPI may, through the compounding effect over time, reduce the value of benefits to pension scheme members by as much as 15% on average. The change will affect both pension income and the lump sum which pensioners may take by commuting part of their pension as soon as they retire.

The four grounds of challenge

The public sector unions argued that the decision to change from RPI to CPI was unlawful on the following four grounds: –

(1) the statutory provision for uprating did not permit the use of CPI (CPI uses a ‘geometric mean’ for part of its calculation; RPI uses only the ‘arithmetic mean’);

(2) the financial savings to be made from the switch to CPI was an irrelevant consideration to the statutory scheme for uprating;

(3) the decision was made in contravention of substantive and procedural legitimate expectations of members of public sector pension schemes, and in breach of Article 1 Protocol 1 rights; and

(4) there had been a failure to have due regard to the gender equality duty under the Sex Discrimination Act 1975 (“SDA”).

The Divisional Court dismissed all of the grounds of challenge. McCombe J dissented on the irrelevant considerations ground point.

(1) CPI method was not ultra vires the statutory language

The unions challenged the whole exercise by arguing that the CPI is not an index which the Secretary of State was entitled to adopt in compliance with the obligation under section 150(1) and (2) of the Social Security Administration Act 1992. It was submitted that the obligation under the statute is to compare prices directly. The effect of adopting CPI, because it uses the geometric mean, is that the comparison is not simply as between prices but also takes account – albeit at a low level within the aggregation process (namely, within each category of goods and services in the basket) – of consumer reaction to the increase in price.

The Court rejected this ground of challenge. The Court did not accept that the weighting based on use of the geometric mean involved in the CPI methodology was at odds with Parliament’s intention. It held that the obligation is to make a comparison of the general level of prices and that is what is being done; like is being compared with like. The Court held –

Moreover, in fact all the items in each category of product in the basket are being valued: the price of each item in the category at the beginning of the relevant period is compared with its price at the end to identify the rate of change in price for that item – no item is treated as dropping out of the category in that period, nor is any item added to it. The use of the geometric mean does not affect this; it just means that the rate of change in price of each item is not weighted equally. If it appears to the Secretary of State that this is a proper way to ensure that pensions retain their value, without pensioners receiving either too much or too little, we can see no reason why he should not adopt that index.”

(2) Saving money was not an irrelevant consideration

As to the second ground, the Court was divided.

The unions submitted that the statutory obligation was to determine what as a matter of fact is the increase in the general level of prices over the year. The Secretary of State was said to have “put the economic cart before the statutory horse” in using the need to make savings as the dominant factor in choosing the methodology.

The majority (Elias LJ and Sales J) rejected this ground of challenge, holding that the Secretary of State can perfectly properly say that there are at least two indices which significant bodies of experts say properly measure the change in the general level of prices and will protect the purchasing power of benefits and pensions, and that he accepts that either index will achieve that objective. Once that decision is reached, he can lend his support to one rather than the other for any rational reason. Further, even if the even if the Secretary of State was wrong to have regard to economic considerations when deciding which of the two available indices to adopt, the majority was satisfied that to the high standard required he would have chosen CPI in any event.

McCombe J however dissented on this ground of challenge alone, holding that in identifying the best methodology the Minister is only entitled to have regard to the express purpose identified in section 150(1). “It was not lawful for the Minister to search out the means of measuring price movements with the express purpose of procuring savings. It is not a correct exercise to search out generally acceptable methods of estimation and to make the selection guided by exterior considerations such as a desire to make savings.” McCombe J also dissented on the question of whether, absent irrelevant considerations, the same decision would have been made at the time (on the issue of lawfulness) or today (on the issue of relief). For these reasons, McCombe J would have granted the application for judicial review and quashed the orders.

(3) No legitimate expectation that RPI would remain in use

The unions’ challenge based on legitimate expectations failed on the facts. The Court found that there was never any promise or assurance given, or any practice adopted amounting to any such promise or assurance, which was “clear, unambiguous and devoid of relevant qualification” that RPI would be the index of review in perpetuity.

However, of potentially wider interest was the Court’s obiter remarks about what the consequences would have been had there been a legitimate expectation.

First, the Court saw “considerable force” in the unions’ submission that, if there was in fact a legitimate expectation in law, it was not a proper compliance with the Government’s legal obligation simply to have some regard to the fact that others believed that the expectation existed. Where a legitimate expectation exists, it must be properly and fully taken into account. The Court held that –

The weight given to a promise generating a legitimate expectation would naturally be expected to be greater than the weight, if any, given to the fact that the Government recognises that some may think (wrongly, in the Government’s view) that there was a promise.

Secondly, the Court rejected the unions’ argument that, if a legitimate expectation existed, they were denied the right to be consulted before their substantive expectations based on such promises were defeated. This also failed on the facts. The Court held that, if there had been an obligation to consult, it would have been satisfied by the process of debate with the unions which did in fact occur before the orders were made.

(4) No failure to have due regard to the public sector gender equality duty

The primary challenge was based on the fact that the Secretary of State himself never had regard to the equality impact assessment; only the Chancellor did so. The Court held that the Secretary of State may rely on workings and a review of effects carried out within his department to satisfy the “due regard” requirement, without having personally to read an impact assessment, so long as the task has been assigned to officials at an appropriate level of seniority or expertise. Equally, a Minister may rely on a relevant equality assessment carried out by another Government department as well or better placed than his own to undertake the task, particularly where that other department has policy responsibility in relation to the effects under review.

The Government submitted that the public sector gender equality duty was simply not engaged by the making of the orders under challenge for two reasons.

First, because the making and laying before Parliament of the statutory instrument which effected the change from RPI to CPI were acts connected with “proceedings in Parliament” and therefore were exempt by section 76A(4)(a) SDA.

The Court gave only provisional views on this issue as it had not heard full argument but expressed a view to assist in future cases or on any appeal from its judgment. The Court concluded that, if it were necessary to do so, it would have been minded to find that the exemption in section 76A (4) (a) applied so that the making of the orders under challenge were not subject to the gender quality duty.

Secondly, the Secretary of State submitted that, because section 21A SDA excludes various acts of public bodies concerned with the making of legislation from liability for discrimination, the public sector equality duty in section 76A was also disapplied in these circumstances. The Court rejected this submission holding that there was nothing intrinsically inconsistent with requiring the Secretary of State to have to comply with the “due regard” duty in section 76A(1) when considering the potential impact of subordinate legislation whilst at the same time not being subject to the non-discrimination duty himself when making the legislation. The scope of that duty may be restricted because section 76A(1)(a) requires the Secretary of State to have regard to the elimination of unlawful discrimination, but section 21A prevents the legislative proposals from being unlawful. But that does not mean that the duty is wholly disapplied.

However, interesting as the Court’s analysis of the exemptions to the gender equality duty under the SDA was, it will be of limited practical application to future challenges. This is because there is no general exemption for proceedings in Parliament in the Equality Act 2010. As the Court held, “for the future, the difficult arguments with which we are engaged in this case will not arise and the courts will not have to trace the potentially awkward dividing line between different types of subordinate legislation when determining the application of section 76A.”

Permission to appeal

The Court granted permission to appeal on the first ground of challenge, whether the statutory language permitted the use of the CPI.


11KBW Independent Schools Seminar

October 24th, 2011 by Panopticon Blog

We are holding a morning seminar on 15th November 2011 aimed specifically at issues which are of vital important to the everyday workings of independent schools.

The three topics which we will discuss are

– the decision in the Independent Schools Council v Charities Commission case about the Commission’s guidance on public benefit

– disability discrimination and special needs issues in the private schools sector

– schools’ contracts with parents.

Speakers from 11KBW’s hugely experienced education team will be Peter Oldham QC, Holly Stout and Rachel Kamm.

 We very much hope you can join us for what we think will be a stimulating session.

To book your place on this seminar please email Claire Halas – Claire.Halas@11kbw.com

Seminar details;

Date: 15th November 2011 from 9.30am – 11.30am

Venue: Crowne Plaza, 19 New Bridge Street, London EC4V 6DB

This seminar is Free of Charge and CPD accredited


“Unreasonable public expenditure” in section 9 EA – which costs?

June 22nd, 2011 by Panopticon Blog

The Court of Appeal gave judgment today in a case which again considered the question of which costs are relevant when determining what constitutes “unreasonable public expenditure” in section 9 of the Education Act 1996; H v Kent CC [2011] EWCA Civ 709 (full judgment available here). 

Sullivan LJ’s judgment seeks to reconcile the apparently conflicting approaches to the identification of the costs to the public purse taken by Sedley LJ in the Oxfordshire and Slough cases (and by Underhill J in the Coventry case) as responses to extreme positions adopted in submissions.  The orthodox Oxfordshire approach was preferred, with the Court of Appeal holding that the LEA’s budgetary arrangements for an individual school would usually be a sensible starting point. If those arrangements made provision for the payment of an age weighted pupil unit (AWPU) to the school there was no reason on the facts of H why the FTT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, were a fair reflection of the cost to the public purse of educating the child at that school.

The effect of section 9 is that parental choice is to be overridden where the choice would impose an avoidable burden on public funds. The FTT was called upon in H, as it often is, to quantify the respective costs of the two schools.  It did so by applying the orthodox approach set out in Oxfordshire whereby only the ‘marginal costs’ to the LEA are included and costs which would be incurred whether or not the child attended the school are excluded.  On the facts of H, these marginal costs were limited to the AWPU and some transport costs.  After the oral hearing of the appeal to the UT, the Court of Appeal’s decision in Slough was handed down.  Although Sedley LJ gave judgment in both Oxfordshire and Slough, he did not refer to the former in his judgment in the latter and there is, as Sullivan LJ acknowledged, at least an apparent inconsistency between the two decisions. 

In Slough, the LEA’s submission was that admission to a maintained school with space for the child was “cost-free”, apart from any special requirements she brought with her.  That submission goes too far in that it artificially assumes a place at a maintained school to carry a nil cost to public expenditure. However, Sedley LJ’s response to that submission in Slough also went too far when he expressed himself as follows: “Every element of a maintained school carries a cost in public funds.  The recurrent exercise for tribunals is to calculate what it is..” (emphasis added). Sedley LJ went on to approve the FTT’s decision that “whatever the notional per capita cost of the maintained school was” it exceeded the cost of the independent school.  This reference to a notional per capita cost did not sit easily with the marginal costs approach taken in Oxfordshire.

The appellant in H adopted a different, but equally artificial, position submitting that the tribunal was wrong to focus on the LEA’s budgetary allocation for the school rather than the expenditure of the school itself as “public expenditure”.  It was submitted that “public expenditure” in section 9 should always be determined by consideration of the school’s accounts, excluding fixed costs such as premises but including all variable costs in the school’s accounts.  Sullivan LJ rejected this submission.  Stepping back from the two extremes of fractionalising the entire LEA budget (rejected in Oxfordshire) and assuming a cost-free place at a maintained school (rejected in Slough and Coventry), Sullivan LJ held that whether a placement involved unreasonable public expenditure was a question of fact to be answered by the FTT in a common-sense way.  

The Court of Appeal held that it is for the FTT to decide what evidence it considers most helpful and it is entitled to have regard to other information, such as a school’s accounts, if it is not satisfied that the figures based on the LEA’s budgetary arrangements are a fair reflection of the cost to the public purse of educating the child at the school in question. Although they would not necessarily provide the definitive answer, the LEA’s budgetary arrangements for an individual school will usually be a sensible starting point. If those arrangements made provision for the payment of an AWPU to the school there was no reason why the FTT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, for example transport costs or the costs of therapy or learning support if an additional therapist or LSA had to be employed by the school, or if an existing therapist or LSA at the school had to be paid to work additional hours, were a fair reflection of the cost to the public purse of educating the child at that school. It should only be in those cases where there was no AWPU payment by the LEA, or where the FTT was satisfied that, for some cogent reason, the AWPU plus any additional costs did not fairly reflect the cost to the public purse of placing the child in a particular school, that the FTT would consider it necessary to adopt some other method of calculating the public expenditure under section 9 EA. 

In one sense, the decision in H is welcome in that it largely restores the well-understood Oxfordshire approach.  However, it does leave the door open for parents to invite the FTT to depart from this approach where they can show a “cogent reason” for doing so on the facts.  No doubt such an invitation will become routine.  The danger for LEAs is that they must have their tackle in order in terms of evidence on costs and budgeting, including, if necessary, evidence of the school’s accounts. 

Finally, although Sullivan LJ neatly reconciled the inconsistencies in Slough and Oxfordshire as the result of extreme positions adopted in submissions, there remain less extreme, valid arguments of statutory construction and policy on the meaning of “public expenditure” in section 9 EA.  However, as the Court of Appeal has considered this issue three times in recent years and has now concluded that it is all a question of fact and common sense for the FTT, the opportunity may have been missed for a more analytical approach.


11KBW Education Bill Seminar, papers

March 22nd, 2011 by Panopticon Blog

Peter Oldham QC, Tim Kerr QC, Clive Sheldon and Edd Capewell spoke at the 11KBW Education Bill Seminar on 21st March 2011. The papers from this seminar are now available to download – click here