New Permanent Secretary for the Department for Education

March 23rd, 2012 by Trevor S.

For those of you who follow such things, the Department for Education has announced the identity of the next Permanent Secretary of the Department.

The lucky winner is Chris Wormald, who is currently the Director General for the Deputy Prime Minister’s Office. His predecessor, Sir David Bell, has left to take up the Vice-Chancellorship of Reading University.

Mr Wormald will take up his new post at the end of March.


Teacher Appraisal Update

January 25th, 2012 by Trevor S.

On 24 January 2012 the Education (School Teachers’ Appraisal) (England) Regulations 2012 were laid before Parliament. Shortly before this, the Department for Education published ‘Teacher Appraisal and Capability: A Model Policy for Schools’.

The combined effect of the Regulations and the Model Policy, both of which come into force on 1 September 2012, is to make a number of changes to the way in which teachers are appraised and are monitored prior to removal. The Regulations include the following:

•Governing bodies and local authorities will have to have a written appraisal policy for their teachers;
•Governing bodies will have to appoint an external adviser to advise them with appraising the head teacher;
•Objectives will have to be set for each teacher which contribute to improving the education of pupils;
•Schools will have to have an annual appraisal process for teachers;
•Teachers will have to be given a written appraisal report which sets out: an assessment of their performance; an assessment of their training and development needs; where relevant, a recommendation on pay progression;
•Teachers’ performance will be assessed against the relevant standards, against their objectives and against their role in the school. Under the current arrangements, the standards are seen merely as a “backdrop” to performance management discussions;
•Most of the prescription in the current regulations will disappear, including the three hour limit on classroom observation. After September 2012, governing bodies and local authorities will be free to make their own decisions about the amount of observation that is appropriate for their teachers. They will also be free to decide many other matters on which they currently have no flexibility.

The Model Policy removes an informal capability process and the suggested length of the monitoring and review period following a first warning has been reduced in length from 20 weeks to between 4-10 weeks. It is important to note that the length of the review period must be reasonable in the circumstances of each case, and must provide sufficient time for improvement to take place. This was the main headline from the Department’s press release, but is counterbalanced by the requirement of compliance with the ACAS Code and that any monitoring period be set by reference to a reasonable and proportionate length of time.

For more comment on the changes see this LexisNexis news article.


The Independent Adjudicator Adjudicates Independently

December 22nd, 2011 by Trevor S.

The Court of Appeal has dismissed a challenge the independence and impartiality of the Independent Adjudicator in R (Sandhar) v Office of the Independent Adjudicator for Higher Education [2011] EWCA Civ 1614.

The claimant had failed two elements of his final examinations of his final year of a medical degree, resat them on compassionate grounds and failed again. He was excluded from his degree course as a result. The claimant complained to the OIA, but in the course of discussions over the nature of the hearing sought the OIA declined to agree to every procedural route he sought to invoke. The claimant judicially reviewed the OIA on the basis that because it was funded by the universities, it could not avoid the appearance of bias.

The Court of Appeal rejected that contention. It found that the Adjudicator had an express duty to act independently of the OIA Directors, who themselves had a duty to uphold the independence of the Adjudicator. There was no evidence that there had ever been a breach. Applying the well-informed and fair-minded observer test, the Court concluded that the funding from universities went into a central pot, and no individual case-handler could be said to be paid by any one institution. Moreover, there was no evidence of any link between the level of contributions and the success rate of complaints. The reasonable observer would not find there to be the appearance of bias on the part of the Independent Adjudicator. The Court approved the obiter comments of Mr Ockleton (sitting as a Deputy) in R (Budd) v Office of the Independent Adjudicator [2010] EWHC 1056 (Admin) at [98]-[104] and the point can probably now be considered settled.


No Duty of Care in School Swimming Lessons

October 31st, 2011 by Trevor S.

It remains common in many areas for schoolchildren to be given swimming lessons through their schools as part of the physical education curriculum. However, fewer and fewer schools have the space or facilities to provide swimming lessons on their own premises. The solution, as it has long been, is for schools to take their pupils to the local council-run swimming pool instead.

The claimant in Annie Woodland v The Swimming Teachers’ Association & Others [2011] EWHC 2631 (QB) was a ten year old child who had attended a swimming lesson arranged by her school at a swimming pool run by Basildon DC. Tragically, she suffered a head injury during her lesson and now has serious brain damage.

The claimant, through her father, brought a claim in negligence against a number of bodies, one of whom was Essex CC, the local education authority responsible for the school. Neither the lifeguard on duty nor the people running the swimming lessons were employees of Essex CC. Essex CC accepted that it owed a duty to take the reasonable care that a parent would take, and to reasonably ensure that any contractors would be able to fulfil their duties. It denied the existence of a non-delegable duty of care.

Langstaff J agreed with Essex CC, and held that the imposition of a non-delegable duty was unarguable. Previous authority in analogous situations, such as hospitals, denied the existence of a duty and no policy argument required the imposition of one. The accident did not occur on school premises or under the school’s control. It would involve a considerable expansion of liability beyond the standard of a reasonable parent. The appropriate duty was for Essex CC to take reasonable care that the contractors it hired had laid down safe and proper systems of work for their lifeguards.

In the Woodland case, there was little need to impose the non-delegable duty on the education authority (apart from a relative depth of pockets) where there were a number of other more obviously liable defendants. Whether a case with only the education authority as the defendant recoverable from will suggest a different outcome if liability is floated again remains to be seen.


Planning Permission and New Schools

August 17th, 2011 by Trevor S.

In the quiet period of the summer holidays, education news had appeared to have packed its bags and disappeared to the beach. However, on 15 August 2011, Secretaries of State Eric Pickles and Michael Gove issued a joint policy statement on the Government’s commitment to support the development of state-funded schools and their delivery through the planning system. This supersedes the statement of 26 July 2010.

In it, a number of principles are set out:

  • There should be a presumption in favour of the development of state-funded schools;
  • Local authorities should give full and thorough consideration to the importance of enabling the development of state-funded schools in their planning decisions;
  • Local authorities should make full use of their planning powers to support state-funded schools applications;
  • Planning conditions should only be those absolutely necessary to making the development acceptable in planning terms;
  • The process for submitting and determining state-funded schools’ applications should be as streamlined as possible;
  • A refusal of any application for a state-funded school, or the imposition of conditions, will have to be clearly justified by the local planning authority, or the Secretary of State will consider it to be unreasonable;
  • Appeals against any refusals of planning permission for state-funded schools should be treated as a priority; and
  • If refused, the Secretary of State will consider carefully whether to recover for his own determination appeals against the refusal of planning permission.

Although the policy statement is expressed to relate to all state schools, there is undoubtedly a strong emphasis on free schools throughout the statement. Many of the bullet points are fairly obvious ones, but the clear warning that the Secretary of State will ordinarily see a refusal of planning permission in relation to a school as unreasonable is a significant shot across the bows.


BSF and Hacking

July 25th, 2011 by Trevor S.

The various legal ramifications of the long-running Building Schools for the Future saga have been covered on a number of occasions on this blog, including here, here and here. In a rather unexpected development, it appears that BSF has managed to draw this blog into the previously unchartered territories of the phone hacking furore, more usually the type of newsworthy matter covered by our learned brethren over at Panopticon.

The BBC is reporting that Tim Byles, the chief executive in charge of BSF, had raised with his Permanent Secretary and the Cabinet Secretary concerns that he was being subjected to nuisance phone calls and suspected that his phone had been tampered with. The story has arisen because of the cryptic question posed by former Labour Minister Nick Raynsford at the phone hacking debate on 20 July 2011 to the Prime Minister attempting to link Andy Coulson to a ‘politically motivated’ campaign against a senior civil servant. Mr Byles is now believed to be the figure in question. The Cabinet Secretary appears to have poured cold water on any link to Mr Coulson and the police apparently found no evidence of interference with the phone. Nonetheless, it is perhaps of some small comfort to those labouring away in the sometimes dusty fields of education law to know that they are but one controversial political decision away from potentially joining such icons of the modern age as Max Clifford, Sienna Miller and Hugh Grant.


Disability Discrimination Claims in Wales

July 22nd, 2011 by Trevor S.

From 6 July 2011, pupils in Wales are able to bring disability discrimination claims, relating to acts of discrimination in schools, to the Special Educational Needs Tribunal for Wales. This is the effect of the imaginatively named The Right of a Child to Make a Disability Discrimination Claim (Schools) (Wales) Order 2011 (SI 2011/1651 (W187)). The need arises out of the repeal of the Disability Discrimination Act 1995 by the Equality Act 2010.

The Order amends – through the mechanism of the amendment of the Education (Wales) Measure 2009 – Schedule 17 to the Equality Act 2010. Specific Welsh paragraphs are added into Schedule 17, including one making provision for ‘case friends’ to make representations on the child’s behalf. The amendments are quite substantial, and should be read by those practising in the area.

The full Order can be viewed here.


New Chair of Ofqual

July 20th, 2011 by Trevor S.

Suprisingly, amongst the spate of media and police resignations in the last week or so the press has found little room to report happier news. For readers of this blog that more pleasant category will doubtless include the appointment of Amanda Spielman as the new Chair of the Office of Qualifications and Examinations Regulation, or Ofqual. The position is known as the Chief Regulator and the appointment was made in the Chief Regulator of Qualifications and Examinations Order 2011 (SI 2011/1690). It came into force on 14 July 2011 and Ms Spielman replaces Kathleen Tattersall (see SI 2009/3208).

For those readers who doubt that the entirety of the 2011 Order has been summarised in this post, the legislative instrument may be viewed here.


European Schools

July 15th, 2011 by Trevor S.

The Supreme Court judgment in Duncombe (No. 2) [2011] UKSC 36 was handed down today.  The SC held that teachers employed by the Secretary of State for Children, Schools and Families to work abroad at the European Schools fell within the scope of the principle in Lawson v Serco Ltd [2006] UKHL 3, [2006] ICR 250, and so were entitled to the protection against unfair dismissal conferred by section 94(1) of the Employment Rights Act 1996.


Accredited Colleges and English Language Courses

July 15th, 2011 by Trevor S.

Under paragraph 33 of the Immigration Rules and regulation 5A of the British Nationality (General) Regulations 2003, which came into force on 7 April 2010, persons seeking indefinite leave to remain in the UK are required to attend an English for Speakers of Other Languages course at an accredited college.

In R (English Speaking Board (International) Ltd) v Secretary of State for the Home Department [2011] EWHC 1788 (Admin) the ESB challenged that rule on the basis that its introduction without proper consultation was irrational and should be quashed. A considerable number of the colleges providing the relevant types of course remained unaccredited and it was difficult for them to meet the accreditation standards.

Interestingly, the Secretary of State conceded that the rule was indeed irrational because it was introduced without proper consultation. However, Wyn Williams J accepted that the change had a genuine, proper and desirable rationale and purpose. The fact of the rule was not irrational, it was simply arrived at by an inappropriate process. Wyn Williams J declined to make a quashing order, and made only a declaration in the terms of the Secretary of State’s concession.

The process of accredited colleges and ESOL courses is consequently left in the slightly odd position of continuing to apply with the full force of law, but where it has been held that the rule was unlawfully arrived at.