We are very pleased to announce that the ‘Education Law Handbook’ has just been published by LexisNexis. Written by education law specialists here at 11KBW, this is a comprehensive textbook for legal practitioners covering all areas of education law from pre-school to university.

It might be too late for Santa to drop one down your chimney but copies are available here and we are (Covid permitting) planning to have a launch party in the new year.  Watch this space for further details!

In the meantime, a very happy Christmas from all of the education team at 11KBW.

Paul Greatorex

The Supreme Court has today granted permission to appeal in the term-time holiday case of Isle of Wight Council v Platt.  The Council, with the support and funding of the Department for Education, is appealing against the decision of the Divisional Court reported at [2016] EWHC 1283 (Admin).

The Supreme Court’s announcement of its decision states that it hopes to schedule the appeal hearing for a date in the first quarter of 2017.

Paul Greatorex

Last November I did a blog post about the case of R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin) in which the High Court found that government guidance about religious education was in one respect unlawful.

The DfE has now issued a “guidance note” to take account of that decision.  It is very short, just 2 pages long.  The first page describes the court’s decision as having been on a “narrow, technical point” and reiterates government’s policy on the teaching of RE which it says remains unchanged.  The second page then sets out its response to the High Court’s decision as follows (footnotes removed):

“The judgement identifies a technical, legal concern with paragraph 2 of the introduction to the Religious Studies (RS) GCSE subject content:
“By setting out the range of subject content and areas of study for GCSE specifications in religious studies, the subject content is consistent with the requirements for the statutory provision of religious education in current legislation as it applies to different types of school.”
The Court concluded that this amounted to an assurance to all schools without a religious character that they could always wholly rely on any and all possible routes through the RS GCSE to ensure compliance with their statutory responsibilities.
This was not how the paragraph was ever intended to be read. We intended it simply to reflect that the subject content is not incompatible with those statutory responsibilities and may act as a possible element in complying with those responsibilities.
Paragraph 2 is now to be understood and applied in the sense set out in the previous two paragraphs.
The Government’s clear view is that schools following this approach will be fully in line with their statutory requirements.”

According to a statement issued by the British Humanist Association, which had supported the judicial review claim, this new guidance “makes the situation worse” and it is consulting its lawyers so this may not be the end of the matter.  But whatever its rights or wrongs, one can’t help thinking how nice it would be if all government guidance were as short as this.  Happy New Year!

Paul Greatorex

In 2013 I did a blog post about the case of Duke v University of Salford [2013] EWHC 196 (QB) which concerned a defamation claim by Salford University against a Dr Duke for blog postings which (inter alia) made unfavourable comparisons between the university and the leadership of Hezbollah, a suggestion that it was “adopting some of the more odious policies of the great Chinese bureaucratic dictatorship”, and allegations of secretive behaviour.  I’m sure you recall it as if it were yesterday.

Anyway, a recent decision of the European Court of Human Rights in Kharmalov v Russia (Application no. 27447/07) concerns a similar spat in Russia and is a reminder that such dissent, if not an inherent part of academic life, is at least not confined to these shores.  More relevantly from a legal point of view, it illustrates the freedom of speech protection afforded by the European Convention on Human Rights and makes some important points about universities’ reputations and debates of public interest. Read more »

Hot on the heels of my post last week about religious education and state impartiality comes the publication today of the 104-page report of the Commission on Religion and Belief in Public Life entitled “Living with Difference”.

Made up of 20 commissioners, including adherents of the main religious and belief traditions in the UK  (including humanism) and chaired by former Court of Appeal judge Baroness Butler-Sloss, the commission took two years to prepare its report and received more than 200 submissions during the public consultation process.

Chapter 4 of the report (pages 30-39) is devoted to education and includes the following suggestions and recommendations:

• that rather than promoting greater cohesion, faith schools have been socially divisive and led rather to greater misunderstanding and tension, and selection of pupils and staff on the grounds of religion be reduced

• the requirements for schools to hold acts of collective worship or religious observance be repealed and replaced with inclusive assemblies and times for reflection that are appropriate for pupils and staff of all religions and beliefs

• a new subject be created with the same status as other humanities subjects which deals with religious and non-religious worldviews and with content that is broad and inclusive in a way that reflects the diversity of religion and belief in the UK

• state inspectorates should be concerned with every aspect of the life of faith schools, including religious elements currently inspected by denominational authorities

• the attention given in teacher training to religion and belief should be of a similar level to that which is given to reading and maths, so that every primary class teacher is confident and competent in this curriculum area and all secondary and FE teaching staff have general awareness of relevant sensitivities

As exam question writers like to say – discuss.

Paul Greatorex

In R (Fox) v Secretary of State for Education [2015] EWHC 3404 (Admin), Warby J held that guidance issued by the Secretary of State for Education was unlawful because it contained a statement (referred to in the judgment as “the Assertion”) that delivery of Religious Studies GCSE content consistent with subject content prescribed by the Secretary of State would in all cases fulfil the state’s legal obligations with regard to religious education.  In fact, the judge held, relying exclusively on such GCSEs could be enough to meet those obligations but would not necessarily be so and some additional educational provision may be required.

For such an esoteric conclusion, the case got a surprising amount of coverage in the mainstream media (see here) but this probably reflects the high levels of interest and sensitivity surrounding the role of religion in schools.  Leaving the headlines aside, the judgment repays consideration for its analysis of the law governing the teaching of, and curriculum-setting for, religious education in schools and academies.  It is important to note, however, that the position in faith schools and academies is different: see [82]. Read more »

The Department for Business, Innovation and Skills has today published a green paper entitled “Fulfilling our Potential: Teaching Excellence, Social Mobility and Student Choice”, which is open to consultation until 15 January 2016.

This is said to contain “ambitious proposals to put students at the heart of higher education”.  They include the following:

• merging existing publicly-funded regulatory functions into a “single student champion organisation” called the Office for Students
• a new Teaching Excellence Framework that will encourage a greater focus on high quality teaching and graduate employment prospects
• measures to speed up the establishment of new higher education providers
• encouragement for greater use of the Grade Point Average (GPA) system instead of the long-standing model of first, second and third class degrees
• steps improve diversity and social mobility in higher education

All of which is a good excuse to remind you of our 11KBW Higher Education Conference on 16 November 2015 which still has some places available: for further information click here.

Paul Greatorex

A House of Commons briefing paper was published yesterday which examines data on the number of converter academies and the types of schools that have decided to convert.  The first schools converted to academy status in September 2010 and as at 1 September 2015 the total number to have done so is 3,420.  This number breaks down as follows:

• The majority (54%) are primary schools, making up 11% of all state funded primary schools
• 1,393 converter secondaries, making up 41% of all state funded secondary schools
• 132 special academies, making up 14% of all state funded special schools
• 31 Pupil Referral Units and three 16+ institutions

There is considerable geographical variation: there are four local authorities where at least 90% of maintained secondary schools have converted (15 local authorities if sponsored academies are included) and one (Bury) with no secondary school conversions.  Local authority conversion rates for primaries are lower, only exceeding 50% in 2 local authorities (Darlington and Bromley) and 0% in 5 (Sefton, Warrington, Greenwich, City of London and Isles of Scilly), but over 20% in 45 authorities .

In terms of pupil intake, the report notes that secondary school converters had a smaller proportion than the national average of:

• pupils eligible for free school meals (7.7% vs 15.4%)
• pupils from minority ethnic groups (21% vs 23%), and
• pupils with SEN (1.8% vs 2.0% statemented and 17% vs 20% unstatemented.

On the controversial subject of exam results, the 2014 GCSE results suggest that attainment levels were highest in schools that had converted to academies, clearly lower in sponsored academies, and the fastest improvements were in maintained schools, but the paper also points out that none of this is particularly surprising .  It refers to the Local Government Association report of July 2014 (which suggested there was no significant difference in attainment progress after two years between converter academies and similar non-academy schools) and agrees with that report’s view that a longer time frame is needed to get a better indication of the impact of conversion.

Finally, the paper notes that as at 1 September 2015 a further 782 schools had applied to convert (67% primary, 26% secondary, 4% special and 3% PRUs).

Paul Greatorex

A number of newspapers today reported the decision of a magistrates’ court on the Isle of Wight to throw out the prosecution of a parent for taking his child on holiday during term time.  The only details available are those reported in the press, but it appears that the court accepted the father’s argument that the holiday did not mean his daughter had failed to attend school regularly.  Decisions of magistrates’ courts are not binding and of course other similar prosecutions have been upheld.  It will only be if the matter comes before the Divisional Court (on an appeal by way of case stated) or the Administrative Court (on a claim for judicial review) that the point will be decided authoritatively.

Two of the reports are in the Guardian and the Daily Mail.  (Just remember that GCHQ can probably tell which one you click on and will make a note on your file.)

Paul Greatorex

The SEN reforms which came into force on 1 September 2014 are well-known.  However, this regime does not apply to anyone who is detained in the criminal justice system.  Instead, parallel but separate provision is made for “detained persons”, i.e. those aged 18 or under (but not those aged 19-25) who are subject to a detention order and detained in relevant youth accommodation.

That regime, which came into force on 1 April 2015, is set out in sections 70-75 of the Children and Families Act 2014, the Special Educational Needs and Disability (Detained Persons) Regulations 2015 and the revised version of the Code of Practice.

The importance of these new provisions is clear.  The Explanatory Memorandum to the 2015 Regulations refers to 2010 research which showed that 18% of detained persons had a statement of special educational needs (compared to approximately 3% of under-19s overall) and over 60% had speech, language and communication needs.

The Explanatory Memorandum also acknowledged that these needs have frequently gone unmet due to the lack of awareness and lack of clearly defined responsibilities, and the stated aim is to provide a new approach to remedy this.

However, the way the relevant provisions are spread over the Act, the regulations and the Code of Practice does not always make it easy to understand them.  To try and help with this I have drafted a note which attempts to summarise this new regime.  It can be viewed or downloaded here.

I hope the note is of use and interest and would welcome any comments or feedback.

Paul Greatorex