Global menu

Our global pages

Close

Education Academies e-briefing: Autumn 2014

  • United Kingdom
  • Education - Briefings

03-10-2014

Introduction

In this issue we cover:

Replacing the statutory framework for academies and independent schools

Pensions obligations when outsourcing services

Telecommunications masts: do the risks outweigh the benefit?

New grading judgements for early years and sixth form provision

Biggest Transformation of Special Educational Needs regime in 30 Years 

School Exclusions Trialf

Essentials for academy clerks and company secretaries seminar series


For advice or if readers have any feedback or suggestions for topics in the briefing please get in touch.

Diane Gilhooley
Partner, Head of the Eversheds' Education Sector Group

+44 161 831 8151
+44 777 083 8504
dianegilhooley@eversheds.com

Ben Wood
Partner, Head of the Eversheds' Education Schools and Academies Team

+44 113 200 4273
+44 787 678 0298
benwood@eversheds.com

____________________________________________________________________


Replacing the statutory framework for independent schools & academies: progress report

Introduction

Since February 2014 the Department for Education (DfE) has been working on replacing the statutory framework within which independent schools – including academies and their variants such as free schools - operate. The existing framework is set by the Education Act 2002. However, a number of concerns, including inspection findings of inadequate safeguarding arrangements at a few fee charging schools and cases of financial impropriety in a small number of such schools and also academies – have caused the DfE to decide to replace this framework with that in the Education and Skills Act 2008. Most of the provisions in the 2008 Act relating to independent schools will be brought into force shortly. In addition, there will be changes to the Independent School Standards, on which a consultation closed on 18 August 2014. Details of the proposed changes to the Standards are accessible here.

The changes include a new standard on leadership and management, tougher standards for safeguarding pupils and for their spiritual, moral, social and cultural development, and putting Ofsted’s monitoring of the work of the independent inspectorates on a statutory basis. The first set of amendments, that to the Standard on spiritual, moral, social and cultural development and requiring the active promotion of fundamental British values, will come into force on 29 September 2014. Details are accessible here.

Tighter controls on school & academy management

The first step in this tightening of the regulatory framework will be implementing stronger powers to bar unsuitable people from managing independent schools and academies. Regulations (The Independent Educational Provision in England (Prohibition on Participation in Management)  Regulations 2014, 2014  No. 1977 http://www.legislation.gov.uk/uksi/2014/1977/regulation/1/made) have been made under section 128 of the 2008 Act setting out the grounds on which a direction can be made barring a person from taking part in the management of an independent school or academy in England, or restricting a person’s ability to do so. The Management Regulations come into force on 1 September 2014. Directions may be given where a person has been convicted of or received a caution for a relevant offence or has engaged in relevant conduct if the Secretary of State considers that they are therefore unsuitable to take part in the management of an independent school. Relevant conduct includes conduct that is aimed at undermining fundamental British values, or is in breach of professional standards, or is so inappropriate that it makes the individual unsuitable to take part in school management. There are procedural protections for the individual concerned to ensure they have their say before a direction is made, for directions to be revoked if circumstances have changed, and for a right of appeal against a direction to the First-tier Tribunal.

These provisions in terms of suitability of managers are similar to the requirements  for  academy and free school governors and academy company members contained in the Summer 2014 academy and free school model funding agreement. Clause 7.12 entitles the Secretary of State to require the academy governors to remove a governor or member whom the Secretary of State has adjudged unsuitable to hold office, or to terminate the funding agreement.  The agreement also defines “fundamental British values” as:

“Respect for the basis on which the law is made and applied in England; respect for democracy and support for participation in the democratic processes; support for equality of opportunity for all; support and respect for the liberties of all within the law; and respect for and tolerance of different faiths and religious and other beliefs.”

This definition is similar to but not identical with that in the Management Regulations and the recent amendments to the Independent School Standards which is:

“Democracy, the rule of law, individual liberty, and mutual respect and tolerance for those with different faiths and beliefs.”

Next steps

In the light of recent events in Birmingham and elsewhere it is likely that DfE will be monitoring the issue of suitability of those involved with independent schools and academies more closely in the future.
We will be monitoring the issue of the new Independent School Standards and other measures to implement the new legal framework and will circulate further briefings in due course.

For further information please contact:

Nick Saunders, Principal Associate Professional Support Lawyer
Tel: +44 121 232 1537
nicholassaunders@eversheds.com

Helen Cairns, Principal Associate
Tel: +44 161 831 8291
helencairns@eversheds.com

____________________________________________________________________

Outsourcing services – an overview of pension obligations

In times when budgets are stretched, many academies are deciding to outsource cleaning, catering and other services to external contractors, in order to save costs. 

As a result of any such outsourcing, non-teaching employees of the academy who are currently carrying out the services in-house will become employees of the contractor, pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The terms of the outsourcing will usually be set out in an outsourcing agreement (also known as a services contract), entered into between the academy and the contractor.

When the outsourcing contract is being negotiated, the academy will need to ensure that it includes appropriate provisions on pensions which comply with the requirements of HM Treasury’s new Fair Deal policy 2013, in which HM Treasury made it very clear, for the first time, that the Fair Deal terms will apply to staff transferring from certain maintained schools (including academies) where the local authority is not the employer of the staff. 

For academies, the new Fair Deal policy (broadly) provides that:

• Staff who are members of the LGPS and who are compulsorily transferred from a public sector employer (the academy) to a private sector contractor, and who remain continuously employed on the delivery of the outsourced service or function, will remain eligible to be members of the LGPS while they continue to be employed on the transferred service or function.

• This protection does not apply in relation to other staff of the independent contractor, including any staff employed to deliver the outsourced service or function who were not compulsorily transferred from the academy.
 
• It is the responsibility of the academy to ensure that the terms of the outsourcing contract require the contractor to provide protected staff with continued access to the LGPS in their new employment.

• Academies must also ensure that staff protected by the Fair Deal policy are provided with continued access to the LGPS on any subsequent compulsory transfer while they continue to be employed on the contracted-out service or function, including any transfer to a sub-contractor or on a sale by the contractor of part of its business.

Although the Fair Deal policy does not have the force of law, the Department for Education – and public sector unions – will expect academies to comply with it as a matter of practice.  It is also important to note that the policy is not overriding, and that failure to include appropriate provisions in the outsourcing contract will result in staff having no protection.  Further information on the new Fair Deal policy can be found on the Government’s website at:

https://www.gov.uk/government/publications/fair-deal-guidance.

Continued access to the LGPS for staff post-transfer is provided by the well-established mechanism of an admission agreement, which in these cases will be a tripartite agreement between the contractor, the academy (who must stand as guarantor of last resort for the contractor’s LGPS liabilities) and the relevant LGPS administering authority.  The contractor may also be required to obtain a bond from a third-party provider, which will help to protect the academy against financial risk as ultimate guarantor. 

Academies can expect contractors to seek protection against any existing deficit relating to the relevant staff (which would otherwise transfer to the contractor along with the contracts of employment), and also against the need to make good any deficit which may be present when the contract comes to be let again.  Obtaining an early indication from the LGPS fund actuary of the size of any existing deficit is therefore strongly recommended.

If you require further information on the above please contact:

Gary Delderfield, Partner
Tel: +44 121 232 1786
garydelderfield@eversheds.com

Cat Ellis, Associate
Tel: +44 113 200 4943
catellis@eversheds.com

____________________________________________________________________

Telecommunications masts:  do the risks outweigh the benefit?

In today’s society, mobile phones are almost as much of an obligatory possession as our house keys and wallets.  The prevalence of mobile communications is driving demand for the installation of telecommunications equipment, such as masts and aerials, within our communities to ensure we receive the uninterrupted service that we have come to expect. The rooftops of schools and colleges have become some of the more practical locations for the installation of such telecommunications equipment.

On conversion of a school to an academy, due diligence is carried out to establish the existence of any third party interests in the school site. The local authority is obliged to disclose any documentation entered into that grants rights over the site and if this disclosure reveals any type of agreement to install telecommunications equipment belonging to a telecommunications provider (whether or not that document is termed a lease, licence or otherwise) there are important legal issues to consider which may impact upon how the academy can use the affected land post-conversion.

On the face of it, such agreements would seem to benefit the academy, as the academy trust will, upon conversion, step into the position of landlord or licensor in place of the local authority or governing body and the rental payments, although unlikely to be particularly high, will typically be subject to ‘upwards only’ RPI rent review provisions and may form a useful and regular source of revenue.  Any revenue received by an academy trust must be dealt with in accordance with relevant charity law provisions but there are also two key areas of legislation in favour of the telecommunications provider that need to be considered:

1. The Electronic Communications Code (which is contained in Schedule 2 of the Telecommunications Act 1984, as amended by the Communications Act 2003) (“the Code”):

Notwithstanding the existence of any clause in an agreement which purports to grant the landlord/licensor a right to terminate the arrangements, the telecommunications provider (if it is registered with OfCom as a licensed operator), has certain protection under the Code. The protection is a form of security of tenure, meaning that the academy may be unable to require the telecommunications equipment to be removed or relocated  (for example to make way for any redevelopment) without an order from the County Court – and even then it is ultimately a decision of the Court whether to require the removal of the equipment.  

The Code sets out a detailed regulatory notice procedure that needs to be adhered to before the existing arrangements may be brought to an end. This is a complex process with rigid requirements as to the timings to be followed and the permitted grounds that can be relied upon by the party seeking to end the arrangements. Advice should be sought from an experienced telecommunications surveyor or lawyer before instigating the termination process under the Code.

2. Landlord and Tenant Act 1954:

The agreement in question may be referred to as a ‘licence’.  However, since the telecommunications provider is likely to have exclusive possession of the part of the site that it occupies, the legal relationship may be deemed by a court to be a lease rather than a licence. The implications of this are that the telecommunications provider may have gained a secure business tenancy under the Landlord and Tenant Act 1954. If this is the case, as with the Code, there are only certain grounds upon which the landlord can seek to terminate the arrangements.

The most commonly claimed ground is ‘Ground F’, for which the landlord must be able to demonstrate a genuine and defined intention to redevelop the site. This is an onerous burden and a high level of proof is required to support the claim. Often the redevelopment project must be practically underway for the claim to be successful!

Clearly the implication of any “security of tenure” that the telecommunications provider might have gained is that the academy’s use of its site may be substantially inhibited. Therefore, very careful consideration should be given before entering into any new arrangements of this type and we recommend that you seek advice from an experienced lawyer before entering into any agreements.

If there are already existing agreements in place, the academy trust should ensure that it understands the specific nature of the legal documentation affecting the school site and  manage those arrangements closely so that no unintended rights arise.

To assist, we set out below a few key points to consider when managing existing arrangements or considering whether or not to enter into any new arrangements:

  • Rent: are there any outstanding reviews? Is advice needed on the market rate?
  • Alienation: Consider resisting the ability of the telecommunications provider freely   to assign or share possession of the premises unless consent is obtained.
  • Rights to Alter, add equipment: Ensure alterations/additions are prohibited/restricted to avoid unintended third party rights arising.
  • Landlord and Tenant Act 1954 (“the Act”):  Consider whether the Act should be excluded (although protection under the Code will still be effective). Exclusion of the Act will ensure that only one legal procedure needs to be followed to regain possession, which will save costs and time.
  • Definition of “term”: Consider carefully the definition of the term - the Act cannot be properly excluded if the term of the lease is defined as including any period of ‘holding over” and this will cause delays in seeking to remove any telecommunications equipment.
  • Rights to relocate: Ensure there is a right to relocate the equipment elsewhere on site if redevelopment is needed (relocation would usually be at the cost of the academy trust).
  • Break provision: In principle, notices to terminate served in accordance with the Code will not be effective unless the landlord already has a right to recover possession (aside from Code protection). Consider a flexible landlord break option where possible and particularly where future redevelopment is likely.
  • Expiry of existing leases: If a tenant remains in occupation after the expiry or termination of a lease, there is always a risk that a new periodic tenancy will arise by implication. In such circumstances, the new implied lease will attract protection under the 1954 Act even if the old lease was contracted out. We recommend you closely monitor the expiry of telecommunications leases and consider the options well in advance of any relevant expiry date(s).

For further information please contact:

____________________________________________________________________


New grading judgements for early years and sixth form provision

Ofsted have announced that they will now provide a separate grade in their school inspection reports regarding the quality of nurseries, receptions and post-16 provisions (even if they form part of a primary or secondary school). The separate grade will not limit a school’s overall judgement but inspectors will consider the outcome in the context of the school to help them form a final verdict on their overall effectiveness.

The changes are designed to ensure that inspectors place as much emphasis on both the Early Years Foundation Stage (EYFS), and the sixth form as well as 5-16 provision as these are such vital stages in a child’s education. Ofsted recognise that nurseries and receptions set children ‘up for life’ in terms of their overall learning and that a clear understanding of how well a sixth form is performing can help students decide where they want to continue their post 16 studies.

The comments following the consultation that took place during May to June 2014 suggested that inspectors should have a good understanding of EYFS and sixth forms; as both stages require separate knowledge and expertise. Also, it was felt that the separate judgement should influence the overall judgement. For example, a school should only be judged outstanding if its EYFS provision is judged at least good. The small minority that disagreed in both cases felt that the EYFS and sixth forms were part of the whole school and should therefore not be judged separately. They felt that this was a retrospective step that could unnecessarily complicate the inspection process. Neil Leitch, Chief Executive of Pre-school Learning Alliance said, “We welcome the decision to introduce separate inspection judgements for early years provision. Early years care and education is pivotal to a child’s long-term learning and development.” 

Ofsted first indicated that it was considering a separate grading system in July 2013.  The proposals have been welcomed by the FE sector as it will allow school sixth forms to be directly compared with colleges. The Sixth Form Colleges’ Association had been campaigning for a separate grading system in school sixth forms for some time before Ofsted announced their proposals.  Joy Mercer, the Association of Colleges director of policy, said Ofsted had “made the right decision”.

The Association of School and College Leaders suggested that any criticisms of Ofsted’s new grading system could possibly be ‘put down to’ concern that a school’s overall inspection grading will be ‘brought down’ by the nursery or sixth form grade. This would only be a concern if the standard of a school’s nursery or sixth form provision was low compared with that of the rest of the school.

For more information please contact:

Trish D’Souza, Senior Associate
Tel: +44 29 2047 7354
trishdsouza@eversheds.com

____________________________________________________________________


Biggest Transformation of Special Educational Needs regime in 30 Years

The Government has recently published the Special Educational Needs and Disability Code of Practice: 0 to 25 years ("the Code"), which sets out statutory guidance on duties, policies and procedures that councils, schools and other organisations that support children and young people with Special Educational Needs and Disabled children ("SEN") must follow. The Code applies from 1 September 2014, when the majority of Part 3 of the Children and Families Act 2014 came into force.

What’s New

In addition to the reforms, councils are to receive £45 million from central government, to support them in giving young people and parents greater say over their personalised care and assistance. It will also put in place a new birth-to-25 system for children and young people with special educational needs and disabilities.

Pilot Scheme

Prior to the new code being published, the proposed system was piloted and studies have found that the majority of parents piloting the new system feel more empowered and are happier with the services they are receiving. Speaking on the new proposals, Children and Families Minister, Edward Timpson stated: “Over 2,000 families have been testing our reforms, with many saying that the new rules are already giving them a greater say and more control over how and where they access support.”

No more SEN Statements

It will no longer be possible to request a new SEN assessment for a child or young person who does not already have a statement, and no new Learning Difficulty Assessments (“LDAs”) (in accordance with section 139A of the Learning and Skills Act 2000, local authorities are responsible for ensuring that high quality and timely LDAs take place) will be initiated. From 1 September 2014 local authorities must consider under the new legislation all requests for an assessment of SEN for children and young people who do not have an existing statement. Therefore local authorities, if asked to assess whether a child or young person has special educational needs will need to determine whether they require an Education, Health and Care (“EHC”) plan which sets out the type of provision required to meet the child’s needs. These include but are not limited to, the health and social care needs of the child, the provisions to be put in place to meet those needs, and the views, aspirations and outcomes sought for the child.  Further detail about what an EHC should contain is set out at Section 37 of the Children and Families Act 2014.

It is important to note that the legal test of whether a child or young person requires an EHC plan remains the same as before in connection with a SEN statement, i.e. a person will be deemed as having a learning difficulty if, (a) s/he has a significantly greater difficulty in learning than the majority of persons of her/his age, or (b) s/he has a disability which either prevents or hinders her/him from making use of facilities of a kind generally provided by institutions providing post-16 education or training. Therefore, it is expected that all children and young people who have an SEN statement will be transferred to an EHC plan. It is intended that no child or young person will lose any provision for their needs by virtue of moving to an EHC plan.

Further changes

Further changes include:

•   A requirement for better co-operation between councils and health services to make sure services for children and young people with SEND are jointly planned and commissioned;

•  Giving parents and young people with EHC plans, the offer of a personal budget – providing an idea of how much their care and support will cost;

•  Requiring local authorities to publish a ‘local offer’ showing the support available to all disabled children and young people and their families in the area - and those with special educational needs;

•  Introduction of mediation for disputes over provision and trial giving children and young people the right to appeal if they are unhappy with their support;

•  Introduction of a new legal right for children and young people with an EHC plan to express a preference for state academies, free schools and further education colleges.

Academies

Chapter six of the Code relates mostly to mainstream schools, which for the purpose of the Code includes academies. Such schools must use their best endeavours to make sure that a child with SEN gets the support they need. In addition to this academies must:

•  Prepare an SEN information report;

•  Designate a teacher to be responsible for co-ordinating SEN provision – this does not apply to 16 to 19 academies;

•  Inform parents when they are making special educational provision for a child;

•  Ensure that children and young people with SEN engage in the activities of the school alongside pupils who do not have SEN.

There is also a duty on academies to publish on their websites an SEN information report which sets out the governing body’s or the proprietor’s policy for pupils with SEN. The information to be contained in the report is set out in the Special Educational Needs and Disability Regulations 2014 (click here to access).

The Code states that the quality of teaching for pupils with SEN, and the progress made by pupils, should be a core part of the school’s performance management arrangements and its approach to professional development for all teaching and support staff. An academy should publish its arrangements relating to the quality of teaching as part of the SEN information report.

In deciding whether to make special educational provision, the teacher and SENCO should consider all of the information gathered from within the school about the pupil’s progress, alongside national data and expectations of progress.

Broad areas of Need

When reviewing and managing special educational provision, broad areas of need and support are outlined within the Code and academies are required to review how well-equipped they are to provide support across these areas.

The four broad areas are described as, Communication and interaction; Cognition and learning; Social, emotional and mental health difficulties and Sensory and/or physical needs. These four broad areas give an overview of the range of needs that should be planned for. The purpose of reviewing these areas is allow academies to identify what action the school needs to take, rather than simply fitting a pupil into a category. Often pupils may have needs across all these areas, so a detailed assessment should ensure that the full range of an individual’s needs is identified. Whilst schools have a more active role in reviewing and managing areas of need, Local Authorities retain the power to direct a school to provide the support required under the EHC plan, to ensure a child’s needs are being met.

Support

Where a pupil is identified as having SEN, academies are required to take action to remove barriers to learning and put effective special educational provision in place. This SEN support takes the form of a four-part cycle: Assess; Plan; Do; and, Review. It draws on more detailed approaches, more frequent reviews and more specialist expertise in successive cycles in order to match interventions to the SEN of children.

For further information please contact:

Nicola Bennison, Partner
Tel: +44 115 931 7602
nicolabennison@eversheds.com

Trish D’Souza, Senior Associate
Tel: +44 29 2047 7354
trishdsouza@eversheds.com

____________________________________________________________________


School Exclusions Trial

On 24 July 2014, the Department for Education (“DfE”) published a research report entitled School Exclusion Trial Evaluation (“the Report”) which set out its findings in relation to the School Exclusion Trial (“the Trial”) which took place between autumn 2011 and August 2014.  The schools and local authorities (“LAs”) involved in the Trial were tasked with developing ways in which to avoid an exclusion situation and implement different measures that would ultimately improve the education offered to pupils at risk of exclusion. This note summarises the key points arising from the Report. It should be noted that while the survey samples did not include any academies, the findings are as relevant to academies as to maintained schools since academies are bound by their funding agreements to comply with the arrangements for exclusion applying to maintained schools.

Current approach

At present, if a pupil is permanently excluded from school, schools should take reasonable steps to set and mark work for pupils during the first five school days of an exclusion.  LAs are responsible for arranging suitable education (which usually involves alternative provision) to begin from the sixth school day after the exclusion.  In recent years there has been increasing concern about the variable effectiveness of alternative provision, due to low levels of attainment and the lack of accountability.  Increasingly, therefore, LAs are delegating some responsibilities for excluded pupils to schools and it is within this context that the Trial was implemented.

Aim of the Trial

The Trial involved volunteer schools drawn from 11 LAs and it was hoped that schools being given greater responsibility for meeting the needs of permanently excluded pupils and those at risk of permanent exclusion might lead to fewer pupils being excluded overall. Such greater responsibility included schools being able to commission alternative provision and LA’s providing funds to facilitate this.

The Trial was designed to (inter alia):

• assess the impact on schools, pupils and LAs of devolving the responsibility for alternative provision for excluded pupils to schools;

• assess whether the Trial had resulted in the increase of early intervention and family support measures, and whether this had had any impact on the outcomes for pupils at risk of permanent exclusion.

The Trial also took place in the context of a range of external educational reforms such as new Ofsted inspection arrangements, reforms to school performance measures and changes to alternative provision governance and funding. It was also hoped the Trial would result in less young people being Not in Education, Employment or Training (“NEET”).

Outcome of trial

The Report indicates that the Trial has had a positive impact in reducing exclusions. Part of the measures adopted involved pupils talking together with a teacher as a group about issues like bullying, and including the alleged perpetrator as part of the solution rather than repeatedly excluding them. Giving schools greater control over what happens to those at risk of exclusion meant that the school dealt with behaviour problems earlier and were more involved in deciding where the “problem” pupils should be educated.

This approach to tackling inappropriate behaviour has resulted in a significant decrease in the number of exclusions in schools involved in the Trial.  For example, Fitzalan High School in Cardiff and Monmouth Comprehensive School saw their exclusion rates drop by over 90% since they began a restorative approach to challenging behaviour three years ago.

The report also found a positive impact where excluded pupils were kept on the admission roll of the school that had excluded them, when they were taught in AP schools.  This was due to the fact that the excluding school had an interest in ensuring that the excluded pupil obtained good academic results, which would have an impact on its performance statistics and would be reviewed as part of any Ofsted inspection. As a result, the schools involved in the Trial worked to make sure that excluded pupils were placed in the most appropriate alternative provision setting with a view to raising attainment, particularly in relation to GCSE English and Mathematics.
 
A positive impact was also found in relation to pupils considered "at risk" of exclusion, with many of those initially placed into this category no longer being so.  This, the Report concluded, was as a result of “the changes in processes and the interventions adopted by schools” which included regularly reviewing a decision that a pupil was at risk, adjusting the support provided, and if such support was effective, removing the pupil from the “at risk” list. By making more effective use of data, schools were better able to identify and address patterns of concerning or inappropriate behaviour by implementing appropriate support for pupils.  Support from learning support units, inclusion coordinators, and revised school timetables were all considered effective methods to help improve attendance, attainment, pupil behaviour and ultimately prevent exclusions.

Overall teachers at schools involved in the Trial reported that fewer pupils had been permanently excluded in comparison with other schools.

Conclusion

The Trial was seen by the DfE as a success with a spokesman stating: "This report reveals how this innovative approach to managing school behaviour can really help young people at risk of being excluded, the trial shows that giving schools, rather than local authorities, greater control of the funding for excluded pupils encourages them to address behavioural problems earlier”.

This is borne out by the outcomes of the Trial, in that strong systems were in place to monitor attendance, attainment and behaviour and tracking systems were also in place to monitor the destinations of young people after leaving school or alternative provision. There was also evidence that alternative provision kept young people engaged with education who otherwise might have become NEET. It remains to be seen whether the Government intends to implement wholesale changes to the existing exclusion regime as a result of the outcomes of this Trial.  However, it is clear that schools are generally working to ensure that appropriate measures are in place to help prevent the need for exclusion in the first place.

For more information contact

< Go back

Print Friendly and PDF
Subscribe to e-briefings