Update – exclusions; LA interventions; missing education; and there’s no such thing as a free lunch…

December 9th, 2013 by Rachel Kamm

This post picks up on two recent education cases, the Ofsted report on children missing education and funding arrangements for free school meals.

Local authority powers of intervention

In Governing Body of Uplands School v Leicester City Council (29 November 2013, judgment not yet available), Mrs Justice Thirlwall dismissed all but one ground of an application for judicial review of the Council’s exercise of intervention powers under section 60 of the School Standards and Framework Act 1998. This is the first case considering the interpretation and application of those powers.

The heart of challenge concerned the lawfulness of a requirement in the warning notice that the Governing Body “engage and communicate” with the Council. The Court held that: (1) this constituted “action” for the purposes of section 60(4)(b) of the 2006 Act; (2) as a matter of statutory construction, it was not necessary for the warning notice itself to identify any earlier failure to engage and communicate; (3) the requirement was clear on its face and in its context, and the Council had provided clarification of what was required.

The Council was entitled to require the Governing Body to take action during the compliance period. Its decision that the Governing Body had failed to comply with the requirement could not be said to be irrational. On the facts of the case, for the purpose of section 60(1)(e), the Council had provided “reasonable notice” of its intention to suspend the delegated budget.

Lastly, Thirlwall J held that the Council’s decision to suspend the headteacher was unlawful. The Council had failed to comply with its clear and unambiguous promise to seek to engage with the Governing Body before taking that step. However, the court held that any such engagement would have made no difference and for that reason declined to make any order.

Clive Sheldon QC and Sean Aughey appeared for the Council; Paul Greatorex appeared for the Governing Body; and Edward Capewell appeared for the headteacher as an interested party (all of 11KBW).

Exclusions and consent orders

In SA v Camden LBC Independent Appeal Panel [2013] EWHC 3152 (Admin)  the High Court quashed the decision of an Independent Appeal Panel which had upheld the decision of the Governing Body of a maintained school to exclude a child “S”. This is an unusual case because the situation was not covered by the relevant statutory provisions nor the guidance.  S had been diagnosed with attention deficit hyperactivity disorder but did not have a statement of special educational needs. Following an alleged incident with another student outside of school, it was decided that he should be permanently excluded. His behaviour had been deteriorating and the school considered his needs to be too complex for a mainstream school to deal with. The parents and the school submitted an “agreement letter” to the panel to the effect that it should overturn the permanent exclusion on the basis that S would not be reinstated due to exceptional circumstances. The panel found that it was not bound by the agreement and that permanent exclusion was proportionate.

In these judicial review proceedings, Mrs Justice Davis quashed the panel’s decision on ground that it failed to give reasons for not giving effect to the agreement reached by the parties. The panel should, in the absence of specific guidance, have adjourned the matter and invited representations from the parties and, if necessary, sought independent advice from a qualified lawyer. No good, or even adequate, reason was provided as to why it opted not to follow an agreement that was deemed to be in the best interests of the child.

Tom Cross of 11KBW represented the Independent Appeal Panel.

Children missing education

The Ofsted report is titled “Pupils missing out on education education: Low aspirations, little access, limited achievement“.  Ofsted examined the experiences of children and young people who are not in full-time education at school. Inspectors visited 15 local authorities and 37 schools and services, undertook 97 case studies of children and young people, and interviewed leaders in a further 41 secondary schools. Inspectors found poor quality and insufficient provision for many of these young people as well as incomplete information about it at a local level. The report makes the following recommendations for local authorities:

  1.  establish a central record of all children not accessing full-time education in the usual way, including those who are accessing alternative provision full time away from mainstream school, regardless of where they are on roll; and maintain good information about the achievement and safety of any child or young person not accessing education in the usual way.
  2. identify clear lines of accountability for the quality and amount of provision, as well as the educational and social outcomes, for all children and young people of compulsory school age who do not access education in the usual way; taking note of the survey’s finding that this was most effective when a named person at a senior level was held to account for this statutory duty.
  3. share information across local authority boundaries in a timely and appropriate way to minimise interruption to a child or young person’s educational provision.
  4. ensure that every child is on the roll of a school, regardless of circumstances, unless parents have elected to educate their child at home.

Ofsted also makes recommendations for schools (including free schools and academies):

  1. with immediate effect, stop unlawful exclusions and provide suitable support for children and young people with behavioural difficulties.
  2. establish clear accountability for the achievement, safety and personal development of all children and young people who are on the school roll but not accessing school in the usual way, and for the quality and amount of provision made for them.
  3. inform the local authority of any part-time education arrangements, regardless of the type of school.
  4. keep children and young people on the school roll during periods of illness or custody (or for as long as it is relevant), in line with Government policy and guidance.
  5. respond quickly to any early signs of children and young people’s raised anxiety or dips in their progress, attendance or engagement in learning.
  6. give governors sufficient information about children and young people who are not accessing school in the usual way, so that governors can challenge the amount of provision being made and evaluate its effectiveness.

Note that Ofsted has made a recommendation to itself, that it will regard any failure by local authorities to comply with their statutory duty as a matter likely to affect the overall judgement on safeguarding.

Free school meals

The Autumn Statement included details of the funding arrangements for free school lunches for every child in reception, year 1 and year 2 in state-funded schools. Nick Clegg announced that “The government will be providing revenue funding of £450 million in 2014 to 2015 and £635 million in 2015 to 2016 to the Department for Education (DfE) to fund this commitment. This is new money into the DfE budget. It will also make £150 million of capital available to ensure that schools can build new kitchens or increase dining capacity where necessary. £70 million of this will be new money from the Treasury (HMT) and around £80 million will be from unspent DfE maintenance budgets.

Rachel Kamm, 11KBW

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