This morning the High Court dismissed the challenge in R (PP) v East Sussex CC to the local authority’s policy of only providing transport to eligible children at the beginning and end of the normal school day.

The claim had been brought under section 508B of the Education Act 1996 and section 29 of the Equality Act 2010.  The claimant, who had a statement of special educational needs, contended that the local authority was obliged by one or other of these provisions to provide her with transport to school after medical appointments and transport home from after-school clubs.

A transcript of the judgment is not yet available but a further blog post will appear here when it is.

Paul Greatorex

Tracking down government guidance, or even knowing what guidance exists, is often far more difficult than it should be, so it was very pleasing to discover the Department for Education has put its into the following comprehensive lists:

• Statutory (i.e. compulsory) guidance publications for schools and local authorities
• Advice (i.e. non-statutory) publications for schools and local authorities
• Statutory and non-statutory guidance on running early years settings and Sure Start centres

In the same helpful vein, the Department last week published “Statutory policies for schools” which sets out all of the policies and documents that governing bodies and proprietors of schools are required to have by law.  This also makes clear which types of schools have to have which policies, how often each policy must be reviewed and (where prescribed) the level of approval required for each.

Paul Greatorex

It is not often that private law disputes between schools and parents are pursued to trial and judgment in the High Court, but St Christopher School (Letchworth) Ltd v Schymanski and Rao [2014] EWHC 2573 (QB) is one of those cases.

The claimant is an independent school for children aged 3-18, notable amongst other things for its vegetarian diet and “first names” policy for pupils addressing teachers.  It sued for £23,231.10 in unpaid fees in respect of the defendants’ three boys; the parents counter-claimed making 21 allegations of breach of contract, consisting of a wide range of alleged failings with regard to their sons’ education, physical safety and emotional well-being.  One of these was an allegation of racist bullying, although as Holroyde J observed at [246], “by the time of the Parents’ closing submissions, allegations of racial discrimination formed a core part of the Parents’ case”.

The parents had been legally represented for a significant part of the proceedings but represented themselves at the trial which lasted 9 days; the judgment handed down at the end of July runs to 271 paragraphs over 68 pages.  Dismissing all of the parents’ allegations and finding for the school in every respect, Holroyde J:

1. upheld the school’s claim for unpaid fees and dismissed the parents’ counterclaim [233-253]
2. said that even if there had been a breach of contract the parents failed to prove this caused the loss and damage claimed [254]
3. ordered the parents to pay indemnity costs and interest at 10.5% from the date of the school’s Part 36 offer in 2011 (which the school beat) [259-264]
4. lifted the anonymity order made earlier in the proceedings [265-269], and
5. refused permission to appeal [270].

Concluding a series of findings which bear a striking similarity to those made in a case I blogged about last year, Holroyde J said that the parents had lost all objectivity and continued at [247]:

“That loss of objectivity has in my view been a prominent feature of the trial. The unhappy reality of the case, in my judgment, is that the Parents have on many occasions come to the view that one or more of the Boys was in some way unhappy or underperforming and have simply assumed that the cause must lie in an unspecified fault on the part of the School. They have either made no enquiry of the Boys, or have contented themselves with an uncritical acceptance of anything said by the Boys even when contradicted by members of the School’s staff, and they have been very ready to make unfair and hurtful allegations against anyone who contradicted their views. It is natural, and commendable, for them to want the best for their sons. I am afraid, however, that they have lost objectivity to such an extent that they would not give the School, or any member of staff, any credit for anything, and would criticise the School whatever action it took or did not take. They have criticised the School for invoking a formal complaints procedure when the Parents did not seek it, but I have no doubt that any further attempts by the School at informal resolution would simply have been met with different criticisms. As the trial progressed, I came increasingly to the conclusion that the Parents simply wanted all matters relating to the Boys to be dealt with exactly as the Parents wished, and would criticise any action taken by the School which did not conform to the Parents’ wishes. At no point throughout the trial did either Parent acknowledge, still less applaud, the many hours which members of staff devoted to speaking to them and corresponding with them. Similarly, when Hertfordshire CSF disagreed with their criticisms of the School, the Parents were equally quick to make serious allegations of collusion against that authority.”

Lifting the anonymity order was justified as follows:

“[T]here is in my view a strong public interest in the media being able to publish accurate reports of these proceedings. I have found that the Parents have made and pursued serious allegations against the School, and against individual members of staff, which were without foundation. I am told that the allegations of racist bullying have been reported in the press, and are therefore likely to have been seen by parents of pupils and prospective pupils of the School. In those circumstances, there is in my judgment a strong public interest in the outcome of these proceedings being known, since otherwise the School and individual member of staff may wrongly and unfairly be thought to have behaved in a reprehensible manner. In my judgment, that public interest substantially outweighs the need to protect the Boys against possible embarrassment. In those circumstances, despite my sympathy for the position of the Boys, it is in my judgment appropriate for me to discharge the order.”

The judgment can be read here.

Paul Greatorex

The Requirements for School Food Regulations 2014 (SI 1603/2014) have been promulgated, setting out the rules for school lunches and other food provided in school which will come into force on 1 January 2015.  They apply to:

• maintained schools
• pupil referral units
• academies, except for those those who entered into funding agreements between September 2010 and June 2014 (when apparently no relevant clause was included in the funding agreement)
• maintained nurseries and nursery units within a primary school
• food provided by a local authority or governing body to pupils on school trips of 7 days or longer

Requirements for school lunches include:

• meat or poultry at least 3 times per week, but processed meat no more than once (primary schools) or twice (secondary schools) per week and no economy burgers
• oily fish at least once every 3 weeks
• one portion each of vegetables, fruit and dairy (cheese, yoghurt, fromage frais and custard) per day
• fried food and food including pastry no more than twice a week
• a fruit-based dessert (at least 50% fruit) at least 2 times per week
• no salt to be available to add to food
• semi-skimmed and lactose reduced milk to be available at some point during school day

And when reaching for your afternoon snack, note the rules for food provided otherwise than as part of a school lunch (i.e. tuck shops etc.):

• fruit and/or vegetables must be available
• no sweets, cakes, biscuits, savoury crackers or breadsticks
• no crisps or other pre-packaged snacks apart from nuts, seeds, vegetables and fruit with no added salt, sugar or fat
• no sweet fizzy drinks

The Department for Education has also published advice for governing bodies on the new rules which is available, together with a copy of the regulations, here.

Bon appetit!

Paul Greatorex

The Court of Appeal has just given judgment in the case of Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398 reversing the decision of the Upper Tribunal which I covered in a blog post last September.

The UT had held that “public expenditure” in section 9 of the Education Act 1996 meant only expenditure from the relevant local authority’s education budget.  The Court of Appeal allowed the parent’s appeal and held that it means any expenditure incurred by any public body, as opposed to any private expenditure incurred by a private body.

The Master of the Rolls (Lord Dyson), with whom Pitchford and Rafferty LJJ agreed, held that this was the natural meaning of the words and such an interpretation does not give rise to difficulties which are so serious as to make the statutory provision unworkable or impracticable.

Although as Dyson J he had come to the opposite view in C v Special Educational Needs Tribunal [1997] ELR 390, largely on the basis of the difficulties in obtaining relevant information that such an interpretation would impose, he said that point had been dealt with convincingly in the case of O v Lewisham [2007] EWHC 2139 (Admin).  To summarise, the two answers given there were:

1. section 322 of the 1996 Act which (in its current form) enables a local authority to call for assistance from another local authority, the National Health Service Commissioning Board, a clinical commissioning group or a Local Health Board, and
2. the likelihood that these bodies would be eager to cooperate rather than reluctant because of the possibility that their budget will be relieved.

The position in practice of course remains to be seen, but the Court of Appeal also pointed out that section 9 does not impose a duty to act in accordance with parental wishes but merely lays down a general principle to which regard must be had.  It emphasised that it leaves it open to the local authority to have regard to other things as well and also to make exceptions to the general principle if it thinks it fit to do so.  An indirect effect on a ring-fenced education budget (something the UT had relied upon as a reason for the narrower interpretation) was given as an example of an “other thing” that might justify a refusal to accede to the parental preference.

Paul Greatorex

Two recent cases are covered in this post.

The first concerns the exemption from Council tax for students: to qualify for this you need to be a “full-time” student, as defined in Sch 1, para 4(1)(b) of the Local Government Finance Act 1992.  This requires, amongst other things, enrollment on a course of at least 24 weeks’ study per year at an average of at least 21 hours per week.  The claimant in R (Steven Earl) v Winchester City Council [2014] EWHC 195 (Admin) had enrolled on a full-time, two-year course of education but spent the second year re-taking a double module from his first-year which he had failed, following which (in his third year) he completed the second year of the course.  Unlike the first and third years which did amount to full-time study, his second year required just 3 hours of lectures and had a recommended study period of 10 hours per week.  The University regarded him as a full-time student throughout but the parties agreed this was not determinative.

Thirlwall J held that he was not entitled to the statutory exemption during his second year because during that year he was enrolled to undertake a course of education which would lead him to complete the double module only.  You can read the decision here.

The second case follows on from the previous post by Tom Ogg and concerns another prohibition order made by the Secretary of State for Education banning a teacher from teaching: Adam Walker v Secretary of State for Education [2014] EWHC 267 (Admin).  The claimant had received a suspended prison sentence of 18 months for various offences arising out of an incident in which he had behaved in a threatening manner towards three children. The recommendation from the professional conduct panel was a prohibition order with a review after 2 years but the decision by the Secretary of State was to impose a prohibition order without any possibility of review.

HHJ Clive Heaton QC (sitting as a deputy High Court judge) was “wholly unpersuaded” by any of the arguments advance by the Appellant (who was representing himself) and, holding that the Secretary of State has a “wide ambit of discretion in respect of such decisions” [44], dismissed the appeal.  The judgment is available here.

Paul Greatorex

If you are sitting comfortably, I’ll tell you the story of the boy who tried to punch his younger brother but instead hit a water fountain and then sued his school for damages.  Or rather I’ll tell you how the Court of Appeal told it in West Sussex County Council v Lewis Pierce [2013] EWCA Civ 1230:

“In the summer of 2010 [the claimant] was nine and half years old…[He] and his younger brother George who was seven were at the School with their mother for an after school gardening club which their mother helped to run. Whilst there the boys got into mischief. They went over to the water fountain. George sprayed the claimant with water from it and the claimant then tried to punch George, who by then, no doubt prudently, was positioned somewhere underneath the water fountain. George dodged the punch, the claimant missed him, and punched the underside of the water fountain bowl instead, sustaining a laceration to the dorsal aspect of his right thumb and associated tendon damage. The damage to the tendon was repaired shortly afterwards under general anaesthetic. Happily, the claimant subsequently made a full functional recovery. He was left with a hockey stick shaped scar of about 2.7 cm on his thumb about which according to his own medical evidence, he was completely unconcerned.”

Naturally, though, this being a 21st century story rather than something from the Brothers Grimm, the school was then sued for damages.

The water fountain looked like this:

The manufacturer estimated that about 20% of schools in England and Wales had the same water fountain and gave evidence that there there had never been a report of any accident involving one, nor any complaint, during the period 2001-2010. Nonetheless, District Judge Gamba, having inspected its underside and pronounced it “sharp”, held that the school had not properly considered the risk of harm, not done a proper risk assessment, and awarded £3,215.16 damages.

The happy ending to this story (from the school’s point of view) came in the Court of Appeal where the decision was quashed by Lord Dyson MR, Sharp and McFarlane LJJ.

Sharp LJ said at [12] that the judge seemed to have proceeded on the flawed basis that once he had determined that the underside of the water fountain was sharp and there was a possibility that an accident might occur, the school was liable for what happened unless it had conducted a proper risk assessment.  But the real issue was “whether, as a matter of objective fact, visitors to the School were reasonably safe in using the premises, including for this purpose, the water fountain, bearing in mind of course that children do not behave like adults, and are inclined to lark around” [17].

In order to help answer this question, and in what may be a first for the Court of Appeal, the judges themselves also examined the water fountain.  In a conclusion that raises intriguing questions about the comparative sensibilities of the judges involved, they disagreed with District Judge Gamba and said that the underside could not be described as sharp.

The judgment goes on to say:

“But whether it could be described as sharp or not, by no stretch of the imagination could it be said to constitute a danger to children.  Certainly, the edge could have been bevelled, or padded, and had that been done, the claimant might not have injured his thumb . But to say that misses the point it seems to me. The School was not under a duty to safeguard children against harm under all circumstances. Each case is of course fact sensitive, but as a matter of generality, the School was no more obliged as an occupier to take such steps in respect of the water fountain than it would be in respect of any of the other numerous ordinary edges and corners or surfaces against which children might accidentally injure themselves whilst on the premises. The law would part company with common sense if that were the case, and I do not consider that it does so.”

The Court concluded by saying that “it was of course unfortunate that this little boy hurt his thumb in what might be described a freak accident, but such things happen”.

Paul Greatorex

The last blog post looked at a case which considered whether behaviour by a university supervisor towards a doctoral student was unacceptable in law. This one looks at a case which concerned similar issues in a school/parent relationship.

T v Hall Schools of Wimbledon LLP [2013] EWHC 2728 (QB) (summary and transcript available on Lawtel) concerned a breach of contract claim against an independent school, but various observations about what amounts to unacceptable behaviour by parents are likely to be of general interest and may well be applicable more widely.

The claimants were parents who had placed their 3 children at the school in September 2009.  By July 2012 the relationship between the parents and the school had broken down and so the school terminated their placements.  The headteacher said this was because the parents were “distinctly troublesome”, whereas they insisted they were simply “normal concerned parents who wished for the best for their children”.

After hearing evidence from the school and the parents for 2 days, the deputy High Court judge (Jeremy Richardson QC) formed the clear view that the school was right and the parents’ claim “does not have one shred of believable evidence to support it” [74].

The school had a very clear policy about parental behaviour, reserving the right to end a placement “when the parent or guardian of that child is guilty of serious or persistent misconduct in relation to a pupil, a member of staff, another parent or to the reputation of the school.”  The judge said this was unsurprising since “schools should not, and for the most part do not, have to endure parental misconduct.” [17]

The judgment does not give full details of the misconduct but it manifested itself in the parents’ written and face-to-face communications with the school.  Their letters and emails were described variously as “voluminous”, “long and sometimes quite angry”, “very regular” and “relentless”, “usually involving complaints of one sort or another” and with “hardly a good word to be said”: see [20] and [22].  In person, the parents were described variously as “unreasonable”, “assertive”, “confrontational”, “surprisingly demanding”, with the mother screaming at staff on at least one occasion, which behaviour led to the headteacher insisting on being present at all meetings with staff: see [26].

The following findings by the judge speak for themselves:

• The mother was “unusually obsessed by her daughter’s perceived lack of success” and “the fact she did not see anything inappropriate with the bombardment of correspondence and her total lack of self-awareness was, frankly, breath-taking.” [23]
• “The whole tenor of [the mother’s] evidence, and to a lesser extent the father, was of unwarrantably interfering parents who swamped the school with complaints and unnecessary requests as if their children were the only ones that mattered. The parents were self-absorbed and lost, if ever they possessed, any sense of proportion. Their denials of irrationality became ever less plausible as the case unfolded.” [24]
• “[The headteacher] was moderate of manner and measured in his response. That was not my impression of the claimants who were grandiose, in particular the mother. There was a total absence of any sense of proportion or reality. They viewed everything in a self-centred, self-contained artifice as if no one else but they and their children mattered. They interfered and meddled in the school and made unwarrantable demands of the school.” [27]
• “[M]ost if not all parents want the best for their children. That is laudable. Parents of children at fee paying schools rightly demand the best but the school must be allowed to be a school. The conduct of the claimants in this case far exceeded the worst excesses of normal concerned parents by a considerable margin. I can well believe their domineering and demanding conduct became an enduring nightmare for the school.” [28]
• “This parental misconduct – and it was misconduct – was such a shame because, whatever else be their failings, the children are a delight and were much liked by the staff at the school. If only the parents had been sensible, restrained and interested in their children’s progress (and there was progress) instead of foolish, overbearing and demanding, events would have been, I am sure, to the advantage of all their children.” [29]
• The claimants “were self-absorbed and blinkered as to reality and truth. They each (but Mrs T in particular) lost all sense of proportion in their dealings with the school.” [54]
• “The parents by their deplorable conduct created a situation whereby there was a complete breakdown of trust between parents and school. They made unwarranted requests, endless complaints and made a thorough nuisance of themselves with the school. This went well beyond the realms of even the most zealous (some might call pushy) parents.” [56]
• “The assertions by the parents against a principal of an independent school were comprehensively without foundation….To suggest a principal of a school should have agreed to cover up what he believed, indeed knew, to be the truth and for that to have become a term of a contract is, to put it mildly, farfetched.” [74]

Finally, the following paragraphs are likely to be of particular interest and application and are worth setting out in full:

“18….It must be remembered that this was a school and not a company. The primary focus was education. There were times during the cross-examination of both [the headteacher and his PA] that I felt they were being unwarrantably criticised for their absence of notes or form of notes that might have been more appropriate had they been the secretary to the cabinet or the company secretary of a large plc.

46.  [T]he idea that a school has to record every item of information and record in detail every parental conversation represents a paradigm of education in schooling which fails to represent reality. To do as suggested by [counsel for the claimants] in cross-examination is redolent of a litigation culture infecting schools and schooling whereby teachers instead of focusing upon teaching would be looking over their shoulder in case litigation should follow them in hot pursuit. That paradigm of educational practice is not reasonable and I trust is not being actively encouraged. The whole tenor of the cross-examination was presaged upon the notion of a commercial contract and a businessman doing deals, some of which they might wish to camouflage. This was, I repeat, a school dealing with distinctly awkward parents.

75.  The focus of any school should be upon the education and welfare of the children who attend. Of course, parents need to play a full role and take a keen interest in their children. All of that is right and proper. But equally parents must, and most do, appreciate a school is a community that needs to be permitted to get on with its principle task of educating children collectively. No school should be bombarded with unwarrantable demands by parents. Teaching and other staff bear a heavy responsibility in what they do. Looking over their shoulder for fear of litigious parents is an aspect of their professional lives they could all do without.”

Paul Greatorex

The case of Saha v Imperial College of Science, Technology and Medicine [2013] EWHC 2438 (QB) concerned a £1.5m claim for harassment by a doctoral student against her supervisor Following a hearing that lasted 7 days, with the claimant acting in person, Hamblen J dismissed the claim in its entirety, summarising his conclusions at [160] as follows:

“I find that a number of the alleged incidents are not proven, and those that are proved do not involve harassment. At most they involve treating Miss Saha in an abrupt, peremptory and at times vexed manner. They do not involve aggressive, bullying or threatening behaviour.”

Although one always has to be careful with findings made in relation to particular facts, the judgment offers some interesting and helpful guidance on how and when the line into harassment may be crossed, both in the context of the supervisor/student relationship and possibly in other analagous relationships.  It is also of interest because of key part emails played in the complaint.

The judge said this about the lengthy email sent in June 2004 which was described by the claimant as the “primary attack”:

“74.  I accept that the aim of the email was to provide constructive criticism but the manner in which that was done was unfortunate. Although positive points were made, there were a litany of complaints expressed in a somewhat intemperate way. I recognise that Dr Soldati is Swiss and that English is not his first language and that he has a habit of liberally using exclamation marks. Nevertheless there were a number of unfortunately expressed complaints, such as “That is unacceptable”; “it is a complete shame that you have not even done that!!!”; “you prefer to sabotage that effort!!!”; “it is very bad for me and a disaster for you!”;“how do you want me to accept that?”; “Therefore, go!”.

75. As to the content of the message, many of the points made were justified, as Miss Saha acknowledged in evidence…

…

79. In summary, this was an inappropriately expressed email that made a litany of complaints in an overemphatic way. However, the email started and finished on positive points. It was meant to be constructive and to seek to move matters forward. It expressed Dr Soldati’s full support and invited response and discussion. It did, however, cause Miss Saha real distress.”

In his conclusions the judge found was that there were a number grounds upon which Dr Soldati’s behaviour in June 2004 could be criticised: see [161-162].  A number of his emails were expressed in an intemperate, high handed and at times accusatory tone, he was wrong about the number of hours she was putting in, and his concerns led him to make unreasonable claims and demands in relation to working hours and to proving her working presence.  Further, he was wrong to share a confidential complaint by Miss Saha with other members of the team.

There were some mitigating or contextual features: underlying the emails was a concern that Miss Saha’s PhD should be kept on track: there were real issues concerning her progress and the need for a clear work plan going forward and the complaint about working hours was made in good faith and in her perceived interests.  Nonetheless, the judge found that if Dr Soldati had continued to act in the same manner, and to insist on unreasonable demands and to ignore confidentiality issues, a course of conduct capable of constituting harassment might have been made out.

However, the judge found that he did not do so but instead took on board criticisms made of his behaviour, did not continue to insist on matters such as particular working hours or proof of work presence and did not continue to flout her confidentiality. Although he did insist on a work plan being produced, that was found to be a reasonable request and in line with Miss Saha’s MPhil transfer report.  There was little contact subsequently with no further proven incidents and very few emails, and that being so, the judge concluded as follows:

166…[T]here is simply no sufficient course of unreasonable conduct capable of constituting harassment. In any event, I find that his conduct during that summer period, whilst unreasonable and unjustified in some respects, did not cross the boundary from unreasonable and unattractive conduct into oppressive and unacceptable behaviour.

167.  In particular, at all times Dr Soldati’s prime motivation, both subjectively and objectively, was to get Miss Saha’s work on track. He repeatedly stressed this aim and his full support for her, as well as praising positive aspects of her performance. His conduct was not objectively calculated to cause alarm or distress, even if at times it did cause distress.

168.  Further, many of the matters complained of were not targeted solely at Miss Saha.  The average 10 hour day working requirement, the keeping of up to date lab books, and the need to attend more lectures and seminars were all addressed to the whole group as well as Miss Saha.

169.  The context is also important. As her supervisor Dr Soldati had an obligation to ensure that Miss Saha completed the milestones necessary to secure her PhD and was working appropriately to that end. The need properly to plan ahead was supported by her MPhil transfer report and there was a degree of urgency to ensure everything was on track because of Dr Soldati’s imminent departure to Geneva.”

Paul Greatorex

We’re back to school with a bang with the decision of the Upper Tribunal in WH v Warrington BC [2013] UKUT 0391 (AAC) where Judge Williams declined to follow O v Lewisham [2007] EWHC 2130 (Admin) and instead held that the only relevant “public expenditure” for the purposes of section 9 of the Education Act 1996 is that which comes out of the local authority’s education budget.

WH was typical of the situation where this issue usually arises: the local authority argument was that parental preference could not prevail because the fees of the residential school sought by the parents exceeded (by a very considerable margin) those of the day school it had named and so amounted to unreasonable public expenditure.  The parents, relying on O v Lewisham, argued for what Judge Williams in WH referred to as the “wide” view of what was meant by “public expenditure” in section 9, i.e. that it was not limited to the costs which would come out of the education budget.  On the facts of WH it was contended that the total cost to the public purse of the day school, including in particular social care costs, would actually be greater than the cost of the residential school.

O v Lewisham is a decision which was often accepted by the FTT as clearly representing the law even though it conflicted with a number of earlier authorities (indeed the FTT often refused even to acknowledge the conflict existed).  This decision of the Upper Tribunal is effectively at the same level of authority as O v Lewisham meaning the scope for debate remains, although the existence of that debate can no longer be denied.  In the meantime, by virtue of being recent, fully reasoned and containing a detailed analysis of all relevant authorities, it seems more likely that WH will be followed.

That reasoning and analysis is too detailed to permit a helpful summary here, but it is worth noting two particular considerations relied upon by the judge in concluding that the “narrow” view was correct: (1) the difficulties in calculating every element of “public expenditure” involved in educating a child if there is no limit to the meaning of term (see paras 75-76), (2) the heavy burden imposed by the “wide” view on the education budget and the uncertainty (if not impossibility) of it recouping the extra costs from other budgets which have saved money (paras 77-78).

Of course, a local authority which can be satisfied that the parental preference will not result in additional expenditure overall and that the cost will be shared appropriately between the relevant budgets, remains free to accede to that preference rather than opposing an appeal in the FTT.  But otherwise, this decision puts the balance of the argument back in its favour.

Paul Greatorex