Schools Newsletter Autumn Term 2014
2 FOREWORD
Welcome back
Stephen Oxley Stephen Oxley is a partner in our employment department and head of the education team. In this edition, Lucy Layet focuses on school fees remission in independent schools, Sophia Akram addresses the complexities of responding to requests under the Freedom of Information Act, Emma Swann considers the core functions of governors in the maintained sector and academies (which may also interest governors of fee paying independent schools), I include a safeguarding update which considers the statutory guidance ‘Keeping Children Safe in Education (April 2014)’ and, in a guest article, Janet Scott (Chief Executive of SGOSS, which stands for the School Governors’ One-Stop Shop) introduces the work currently being carried out by the charity. As always, please do get in touch to discuss any of the issues raised.
Contact E: stephen.oxley@wilsonslaw.com T: 01722 427 743
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This edition
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chool Fees Remission S Read more >
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Governors’ core f unctions Read more >
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esponding to Freedom R of Information Requests Read more >
S afeguarding Read more >
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The School G overnors’ One-Stop Shop Read more >
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School fees remission – time to review? becoming an implied contractual term. If an implied contractual right to a particular discount arises, your ability to vary the scheme will be limited.
Lucy Layet is an associate in our employment and education teams.
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he issue of school fees remission in independent schools has once again come into the spotlight over the last year. If you have not already done so, it is advisable to review whether your school’s policy on school fees remission is fit for purpose. Set out below is a checklist of points to consider. School fees remission for your school’s own staff • Ensure your school fees remission scheme is non-contractual, to retain future flexibility. Even if a policy is expressed to be non-contractual, a policy that is applied in the same way, at the same rate, over many years, risks
• Consider the purpose of the scheme and whether the scheme is doing no more than is necessary to achieve that purpose. The cost of offering fee discounts to school staff can be high. It is important to keep under review the purpose of the fee discounts (for example, recruiting and retaining high calibre staff), and whether the fee discounts offered are a reasonable means of achieving that purpose. This is important for many reasons: to ensure appropriate use is being made of charitable funds; to ensure that a potential claim of indirect discrimination (for example, brought by older staff members) can be justified; and to save money at a time when many schools are under increasing financial pressure. • Ensure that the level of school fees discount to staff members is no greater than 85% (to avoid the discount being taxable).
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School fees remission for another school’s staff • As above, consider carefully the purpose of the discount and whether the scheme is a reasonable means of achieving that purpose. • If the school fees remission is offered by a senior school to the head of a feeder prep school that is independent of the prep school, consider whether the arrangement may constitute bribery under the Bribery Act 2010. It would be a criminal offence to offer such a discount in order to induce the prep school head to be biased in favour of the senior school when making recommendations to the parents of pupils at the prep school. That is not to say that all such arrangements would be unlawful; key to the legality of the arrangement would be the senior school’s intention in offering
the fee discount. If you decide to continue such an arrangement, it is wise to document the fact that there is no expectation on the part of the senior school for the prep school head to recommend the senior school for any pupil unless the prep school head genuinely believes that the senior school would be the right school for the pupil in question. How open should you be? • Whilst there is no legal duty to make public the school fees remission arrangements in place, it is a good rule of thumb to consider how an arrangement would be perceived by parents were it to be made public. Contact E: lucy.layet@wilsonslaw.com T: 01722 427 667
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Responding to Freedom of Information Requests • a data subject access request is a request by an individual to find out what information a data controller holds about the individual. It applies to all schools (whether fee paying or maintained);
e have seen an increase over the last year in individuals seeking to rely on the Freedom of Information Act 2000 (the FOIA), when making requests for information from schools. Set out below is some guidance in this regard.
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• a request under the FOIA is a request by an individual or a company to a public authority to find out whether the public authority holds certain information and, if they do, the right to be given that information. It is, for example, often used by pressure groups or journalists to find out information about a public authority. Whilst is does apply to state funded schools (such as academies), it does not as a general rule apply to independent fee paying schools.
As a preliminary point, however, it is worth emphasising the distinction between a data subject access request (under the Data Protection Act 1998 (the ‘DPA’)), and a request for information under the FOIA:
Separate procedures, requirements and fees apply to the above types of request. If you are in any doubt about the type of request received and/or whether your school falls within the scope of the FOIA,
Sophia Akram is a solicitor in our employment and education teams.
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seek advice at any early stage, to allow sufficient time to respond.
When a request is received, establish its validity
The DfE has published advice for academies entitled ‘Academies and freedom of information (January 2014)’. It is essential reading for anyone involved in responding to a FOIA request.
FOIA publication scheme Academies should have in place a FOIA publication scheme, setting out how the academy proposes to deal with requests under the FOIA, and outlining the information the academy will routinely make available to the public (such as minutes of meetings and annual reports). A model freedom of information publication scheme for academies is available on the gov.uk website.
In order for a request to be dealt with under the FOIA, it must be: • made in writing; • describe the information requested; • give the requester’s real name; and • give an address to which the school can reply (this can be a postal or e-mail address). The term ‘in writing’ covers requests submitted by letter and electronic form. This includes requests made through internet sites, or through social networking sites such as Twitter and Facebook. We would advise schools with such accounts to monitor the accounts regularly, to ensure requests are not missed. Unless there is an obvious indication that the requester has not used his/her real name, the Information Commissioner’s Office (‘ICO’) does not suggest that a
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school should take steps to check the requester’s identity. The definition of a ‘real’ name is that the requester must provide enough of their name to give anyone reading that request a reasonable indication of their identity. A request that only provides the requester’s first name or surname in isolation, or a set of initials, will not be valid. Schools are obliged to “advise and assist” requesters, which includes giving guidance on how to ensure that the request can be complied with, rather than being refused. Timeline for responding to a request and fees to be charged Any person making a request under the FOIA is entitled to be informed in writing by the school whether it holds information of the description specified in the request (referred to as the “duty to confirm or deny”) and, if such information is held, to have that information communicated to him/her. There are detailed timescales in which schools must provide the above information, which vary depending on the type of information requested and whether a qualified exemption applies (see below). Days during school holidays do not count for these purposes. Similarly, if a school charges a fee and provides the individual with a fee notice, the working
days in the period between the fee notice and receipt of the fee are also disregarded. The same applies if the school requests further information of the person making the request (for example, in respect of the person’s identity); days in between the additional information being requested and that information being provided are disregarded. Advice from the DfE recommends that academies respond to straightforward enquiries free of charge, and charge only where the costs are significant.
Can a school refuse a request made under the FOIA? A school can refuse to comply with a request where an exemption applies (see below), where the request is vexatious, where the school has previously complied with an identical or substantially similar request from the same applicant (and a reasonable time has not elapsed between the two requests), or where the school estimates that the cost of complying would exceed the appropriate limit (currently £450).
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Types of exemption There are two types of exemption: absolute and qualified. Even if an absolute exemption applies, you should consider whether it would nonetheless be appropriate to release the information, taking into account all the facts. If a qualified exemption applies, the school must consider whether the public interest
in withholding the information (or neither confirming or denying that the information is held) outweighs the public interest in disclosing it (or confirming or denying that it is held). This is known as the ‘public interest test’. If a school decides to refuse a request, it must
The absolute exemptions that most commonly apply to schools are in respect of the following:
The qualified exemptions that most commonly apply to schools are in respect of the following:
i) information that is accessible to the person making the request by other means (for example, on the school’s website);
i) information that is intended for future publication and it is reasonable that it should not be disclosed until the intended date of publication;
ii) personal information relating to the applicant, in which case the applicant should instead make a data subject access request under the DPA; and
ii) information that is the subject of legal professional privilege (being advice given by legal advisers, solicitors and barristers);
iii) information that was provided to the school in confidence and disclosure would constitute a breach of confidence actionable by that, or another, person.
iii) personal data that is sought about third parties (such as other employees); and iv) information that constitutes a trade secret or would be likely to prejudice the commercial interests of any person, including the school.
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provide the requester with a refusal notice within the correct timescales (see above), setting out prescribed information, such as the exemption relied upon and why the exemption applies. Conclusion Whilst few would dispute the need for transparency and accountability in public authorities, requests made under the FOIA are actually often made in response to an individual’s personal circumstances, rather than in a wider public interest. For example, such requests are sometimes made in the context of an employee’s grievance, in an apparent attempt by the individual to put
pressure on his/her employer to enter into settlement discussions. Responding to such a request in a thorough, open and logical manner should effectively undermine any such attempt.
Contact E: sophia.akram@wilsonslaw.com T: 01722 427 668
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Governors’ core functions – Being an effective Governor
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A new Governors’ Handbook was published for maintained schools and academies by the DfE in May 2014. This states that governing bodies should focus on three core strategic functions: Emma Swann is a partner and head of the academies practice.
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he DfE and Ofsted have recently both emphasised the critical role of governors in improving standards in schools. It is recommended that you should regularly carry out an audit of your governing body’s experience and skills to determine whether there are areas (such as financial or HR expertise) where you need additional support, to enable you to recruit new governors who have appropriate skills. There has been a decisive shift away from the importance of having a range of stakeholders on governing bodies to a focus on recruiting governors with appropriate skills. The DfE are also encouraging schools to establish smaller governing bodies that are seen to be more effective.
• Ensuring a clear vision, ethos and strategic direction; • Holding the head teacher to account for the educational performance of the school; and • Overseeing the financial performance of the school. These functions are reflected in the criteria Ofsted inspectors use to judge the effectiveness of governance in schools.
Strategic Direction It is the role of the governing body to set out the school’s vision, ethos and strategic framework. The governing body should ensure that it has a vision for the future and a robust strategy for achieving its vision. The governing body should sign off the policies, plans and targets, to achieve strategic priorities, and should regularly check on progress.
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Educational Performance The governing body must focus on holding the head teacher and senior leaders to account on school performance. Governors should play a strategic role and avoid routine involvement in operational matters. Effective governing bodies ask the right questions: • Which subjects get the best and worse results and why? How does this relate to the quality of teaching? • How are you going to raise standards for all children, including the most and least able, those with special educational needs and those receiving free school meals? • What is the school’s approach to the implementation of performance related pay? • What is the school’s track record on attendance, behaviour and bullying?
Reviewing data The governing body must have good data to help it to monitor and review the school’s performance. It is essential that every governing body has at least one governor with the skills necessary to understand financial data and performance data. It is the head teacher’s
responsibility to give the governing body all the information it needs to do its job well. The governing body should determine the scope of the head teacher’s termly reports. Governors need to make sure that at least once a year they see objective data from external sources to evaluate performance. fsted has published reports for schools O to explain their overall performance: • The reports cover pupils’ attainment and progress in core subjects. • They show how well schools are performing compared to national averages and compared to similar schools. School and college performance tables provide more detailed information: • The tables cover pupils’ attainment, school finances and school workforce. • Governors can use performance tables to compare their own school with other schools. RAISEonline is available to governors and provides a more detailed analysis of performance. • It includes data on pupil attainment, progress, absence and exclusions. • Governors who lead on understanding and scrutinising attainment data should
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analyse the full RAISEonline summary report. It is important that all governors see some form of summary of key data for their school. Many governors find that visiting their school, particularly during the day, is a helpful way to find out more about their school. Governors can see whether the school is implementing improvement plans and how they are working in practice. Visits also provide an opportunity to talk with pupils, staff and parents to gather their views.
for new governors or you can contact SGOSS for support in recruiting professional governors who will bring their expertise to your school. If you would like any further information on the role of your school’s governing body or would be interested in a training session for your governing body, please contact Emma Swann.
Financial performance The governing body is responsible for making sure that the school’s money is well spent. At least one governor should have specific skills and experience of financial matters. The governing body should ask key questions such as: • Are we making full use of all our assets? • Are other schools achieving better value for money? How effectively a governing body does its job has a real impact on the success of a school. To ensure that your governing body has the effective skills and experience, you may decide to advertise
Contact E: emma.swann@wilsonslaw.com T: 020 7998 0435
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Stephen Oxley is a partner in our employment department and head of the education team.
Safeguarding update
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n April of this year, the Government published statutory guidance entitled ‘Keeping Children Safe in Education (April 2014)’ (the “Guidance”), which replaced ‘Safeguarding Children and Safer Recruitment in Education (December 2006)’. The Guidance should be read alongside ‘Working Together to Safeguard Children 2013’. The Guidance clarifies (among other things) the distinction between (i) the requirement to carry out enhanced DBS checks, and (ii) the requirement to carry out barred list checks. There remains some confusion in the minds of many as to the distinction between these two different checks. The Guidance is essential reading for any such person.
In summary, a school might determine that all appointments (whether of employed staff members, governors or volunteers) should be subject to an enhanced DBS check. However, the additional barred list check may only be carried out in respect of individuals who are to be engaged in ‘regulated activity’. The Guidance clarifies what constitutes ‘regulated activity’ for these purposes. In summary, whilst almost all employees of a school would be engaged in ‘regulated activity’, supervised volunteers / governors would not be engaged in ‘regulated activity’. Statutory guidance on what constitutes ‘supervision’ for these purposes is included at Annex D to the Guidance.
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The Guidance also emphasises the duty of schools to refer a person to the DBS in the following circumstances:
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here a person has been cautioned w for or convicted of a serious offence that will automatically bar the person from working with children; or
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here the school has dismissed or w removed a person from working with children (or would or may have if the person had not left or resigned) because (a) there is reason to believe the person has committed one of a number of listed offences in relation to children, and/or (b) the person has harmed, or poses a serious risk of harm to, a child.
If the person being referred to the DBS is a teacher, you should also consider referring the case to the National College for Teaching and Leadership.
Pursuant to the publication of the Guidance, we recommend the following: • review your school’s recruitment and child protection policies, to ensure they refer to and take account of the Guidance; • continue to exercise caution when using settlement agreements in respect of individuals whom you may need to refer to the DBS; and • ensure that anyone in your school who is involved in the recruitment process and/ or child protection issues is familiar with the Guidance and has attended training in respect of the same. I spoke on the above at the Capita Safer Recruitment and Employment Practices Briefing earlier this term. If you would like me to provide bespoke training to your school, please do get in touch.
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The School Governors’ One-Stop Shop (SGOSS)
SGOSS – Governors for Schools is a small charity set up and funded by the Department for Education to offer a free service to schools by helping to find dynamic governors with transferable business skills. Since its inception in 1999 it has expanded its reach to become national and, placing over 18,000 governors in the process, funding has been secured until at least 2016, which reflects the growing recognition of governance as a fundamental component of a school’s leadership and management. SGOSS focus on recruiting volunteers with the skills required by governing bodies to
support schools and academies most effectively. This means sourcing candidates who might be financiallyliterate, experienced in performance management, pay scales and interviewing, or simply analytically-minded and capable of thinking strategically. More than this, we aim to find people who are committed to improving standards of education in their community and who care about maximising outcomes for children. We actively promote the role through our business partners, delivering presentations and hosting governor network events with the aim of making
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school governance an integral part of corporate volunteering. Businesses often view governance as an ideal professional development opportunity for their staff – with the immense advantage of being able to boast an incredible impact on raising standards in education at the same time. We are delighted to be working with Emma Swann, Partner at Wilsons, to produce a new guide to academy governance structures intended to help volunteers seeking clarification on their roles and legal responsibilities as academy governors. Prospective governors often
ask questions around issues such as their potential liability, chains of accountability and governance structures at the various types of academy. We want to produce a document which is clear and accessible but which also provides enough information to allow volunteers to gain a comprehensive understanding of a complex subject.
20 UPCOMING EVENTS
Employment Breakfast Briefings
Safer Recruitment and Employment Practices Stephen Oxley spoke at the Capital conference on Safer Recruitment and Employment Practices earlier this term. If you would be interested in attending a safeguarding seminar later this term, please email marketing@wilsonslaw.com
After a brief hiatus our employment briefings will return on Tuesday 21 October and will take place at our Salisbury offices. The briefing will cover the latest changes in employment law. Registration will be at 16.30, for a 17.00 start. Drinks will follow at 18.00. Please email marketing@wilsonslaw.com to book a place.
CONTACT US Alexandra House St Johns Street Salisbury SP1 2SB Tel: +44 (0)1722 412 412
4 Lincoln’s Inn Fields London WC2A 3AA Tel: +44 (0)20 7998 0420 enquiries@wilsonslaw.com
www.wilsonslaw.com © Wilsons Solicitors LLP, is a limited liability partnership registered in England, registered number OC328787 and is regulated by the Solicitors Regulation Authority. A list of members of the LLP can be obtained from Wilsons’ head office together with a list of those non-members who are designated as partners. The contents of this newsletter are intended as a guide for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law.