Wilsons Schools Newsletter - Spring 2015 by Fathom

Schools Newsletter Spring Term 2015

2 FOREWORD

Welcome back

Stephen Oxley Stephen is a partner Oxley in our is a employment partner in ourdepartment employment department and head of the andeducation head of the team. education team. In this edition, Lucy Layet focuses on school fees remission in independent Welcome to the Spring edition of our Schools newsletter, although at the time of schools, Sophia Akram addresses the complexities of responding to requests writing it still feels very much like Winter. under the Freedom of Information Act, Emma Swann considers the core In this edition Emma Swann thesector highlyand charged issue (which of British values functions of governors in theaddresses maintained academies may also and whatgovernors obligations schools have to pupils from all backgrounds; Geraldine interest of fee paying independent schools), I include a safeguarding White new guidance on disqualification criteria for early years staff; updateclarifies which considers the statutory guidance ‘Keeping Children Safe in Moira Protani, head of our team, provides annual of the of Education (April 2014)’ and,charities in a guest article, Janether Scott (Chiefstate Executive nation and finally, Sophia Akram goes into furtherShop) detailintroduces about thethe SGOSS,report; which stands for the School Governors’ One-Stop statutory guidance ‘Keeping Children Safe in Education’. work currently being carried out by the charity. 2015 is an important yearinintouch the world of lawany as itofisthe theissues 800thraised. anniversary of the As always, please do get to discuss signing of Magna Carta, commonly seen as the foundation of the rule of law. Wilsons is very proud to be sponsoring the programme of celebratory events being organised by Salisbury Cathedral which is home to the best surviving of the four original copies. We are also looking forward to welcoming you to our next employment briefing. Further details on both this and the Magna Carta can be found on the back page. Contact E: stephen.oxley@wilsonslaw.com T: 01722 427 743

This edition

Promoting British Values Read more >

Charities: State of the Nation Read more >

isqualification from D working in early years Read more >

afeguarding in Schools S Read more >

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Promoting British Values Emma Swann is a partner and head of the academies practice.

ollowing the “Trojan Horse” scandal in Birmingham, reported in the media last year, where there were concerns that a number of schools had been infiltrated by individuals pursuing a fundamentalist agenda, the Department for Education (DfE) has strengthened requirements imposed upon schools to promote British values and has introduced new powers of intervention. Maintained and independent schools (including academies) are now required actively to promote British values. There is no specific legislative requirement imposed on maintained schools but DfE

advice issued in November 2014 clearly sets out that maintained schools are expected to promote British values as part of pupils’ spiritual, moral, social and cultural (SMSC) development in schools. Ofsted will be amending its inspection framework to take account of schools’ compliance with these new duties. Maintained schools have obligations under section 78 of the Education Act 2002 which requires schools to promote the SMSC development of pupils in society. The DfE advice relates specifically to a requirement actively to promote British values in schools and explains how this can be met through the general requirement in the 2002 Act. Schools must encourage pupils to regard people of all faiths, races and cultures with respect and tolerance. It is expected that pupils should understand that all people living in England are subject to its law. Schools’ ethos and teaching should support the rule of English civil and criminal law and schools must not

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teach anything that undermines it. If schools teach religious law, it is crucial that care should be taken to explore the difference between state and religious laws. Schools should be clear in teaching pupils that they must not act contrary to English law in the name of their religion. Maintained schools will be able to demonstrate that they are meeting the requirements of section 78 of the Education Act 2002, if they promote the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs. Schools should enable pupils to distinguish right from wrong; acquire respect for public institutions in England; and encourage respect for democracy (possibly through holding mock elections). It is not necessary for schools to promote teachings or opinions that conflict with their own but nor is it acceptable to promote discrimination against people on the basis of their belief, opinion or background. As part of a section 5 inspection, Ofsted must consider pupils’ SMSC development when forming a judgement of a school. Schools should carefully consider Ofsted’s inspection framework and handbook which sets out how schools are assessed in relation

to pupils’ SMSC development. For independent schools, the DfE has produced advice “Improving the SMSC development of pupils” that has been amended by supplemental guidance in November 2014. It is non statutory guidance and it is intended to help independent schools understand their obligations under the standard for the SMSC development of pupils contained in the Education (Independent School Standards) (England) Regulations 2010 as amended. The new standard strengthened the requirements on schools in relation to fundamental British values from the 29th September 2014. The changes mean that, rather than encouraging respect for British values, independent school proprietors must now actively promote them. Schools will be measured on their performance in these areas under the independent schools inspection framework. The latest changes require independent schools actively to promote the fundamental British values of democracy, the rule of law, individual liberty and mutual respect and tolerance of those with different faiths and beliefs (Standard 5(a)). Schools should have a clear strategy for embedding fundamental British values. Actively promoting the values means challenging

opinions or behaviours in schools that are contrary to fundamental British values. Pupils should have an understanding that the freedom to hold other faiths and beliefs is protected in law.

This is clearly an area that will be focused on by the DfE and Ofsted in the coming months. If your school requires any assistance in meeting these new requirements, please feel free to contact Emma.

Standard 5 (b) requires the proprietor of independent schools to ensure that principles are actively promoted which enable pupils to respect the civil and criminal law of England. This has changed from the previous standard to refer to the law of England to ensure that pupils support the rule of English civil and criminal law. Pupils may be taught to respect religious law if the school is faith based but it must be made clear that all people living in England are subject to its law. Standard 5 (b) (vi) has been newly introduced by the 2014 revision. All schools are already required to comply with the Equality Act 2010. If a school failed to follow the requirements of the Equality Act 2010, the only recourse was for an individual to seek a judgement against the school in the appropriate court. By including this requirement in the standard, the Secretary of State now has the power to take regulatory action where a school is in breach of these requirements.

Contact E: emma.swann@wilsonslaw.com T: 020 7998 0435

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Disqualification from working in early years

n October 2014, the Department for Education published statutory guidance in relation to disqualification from working in early years provision. The guidance relates to: • staff who work in early years provision; • staff working in later years provision for children who have not attained the age of 8, including before and after school provision; and

Geraldine White is an associate in our employment team.

• staff who are directly concerned in the management of such early or later years provision.

Schools and colleges must have regard to this guidance when carrying out their duties to safeguard and promote the welfare of children. This includes independent schools, academies and free schools (but excludes 16-19 academies and free schools).

be reviewed regularly (we would suggest every 3 years). Staff should be advised that they must notify their employer without delay if there is any change to the information provided during the course of their employment.

The guidance emphasises that the disqualification criteria in relation to this provision is wider than inclusion on the Children’s Barred List. For example, the following criteria would lead to disqualification from working in early years:

If, in response to the questions asked, the employee or job candidate provides information that suggests that they may be disqualified or disqualified by association, that information must be provided to Ofsted as soon as reasonably practicable and within 14 days.

• being the subject of a care order in relation to a child who is (or was) in the individual’s private care; • being disqualified from private fostering; • being cautioned or convicted for a number of offences in relation to adults; and/or • living in the same household where another person who is disqualified from early years provision lives or works. This is known as “disqualification by association”. The guidance requires early years providers to ask for relevant information from early years staff, in order to check that neither they nor anyone who lives with them, falls within this disqualification criteria. For all potential new starters, these questions should be asked as part of the pre-employment checks and before any job offer is confirmed. These checks should be carried out in addition to the usual checks. They should

Individuals who are disqualified can apply to Ofsted for a waiver of their disqualification, unless they are listed on the Children’s Barred List. If an individual is disqualified, they must not work in any early years setting whilst the waiver application is under consideration. We have prepared a questionnaire for early years providers to use, to ensure compliance with this statutory guidance. If you would like a copy, or have any further queries in relation to this issue, please do get in touch.

Contact E: geraldine.white@wilsonslaw.com T: 01722 427 657

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Charities: State of the Nation

Moira Protani is a partner and head of our charities team.

oira reported in her most recent blog on two recent cases involving independent schools which have received unwelcome attention from the Charity Commission. The full blog can be found on the ‘News’ tab of our website

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The extract concerning the two independent schools is set out below. Gads Hill School Gads Hill is an independent school in Kent. The school was originally established in 1924 for girls in the former home of Charles Dickens (hopefully minus Mr Squeers!). It is now fully coeducational. The then Chair of the governors had reported a so-called “serious incident” to the effect that the head teacher’s salary hadn’t been reviewed, and that increases to his salary were excessive and not commensurate with the role. The board of governors then carried out a review resulting, among other things, in the head teacher’s salary being reduced. The Commission advised the board to consider its guidance on trustee remuneration and expenses and conflicts of interest. Just over a year later local press reports alleged that the head teacher was being paid too much in salary and expenses and that a number of governors had resigned. The Commission reacted by opening an operational compliance case. It found that, rather than an annual salary review as required by his contract of employment, the head teacher proposed an annual increase in the school budget which was agreed by the governors without a bench marking exercise. It also found that too much reliance was being

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placed on the finance committee, the chair of which had also resigned. The Commission said that the original serious incident report was misleading as it failed to identify concerns about the head teacher’s personal expense claims. However, in the same paragraph the Commission’s report noted that the Governors were satisfied that expense claims had not been abused! Commentary: Having reviewed the annual report for the year ended 31 August 2013, the published expenses do not seem especially high to us. Overall there is not enough clarity in the Commission’s report to aid a reader’s understanding of what was wrong with the charity (if anything)

and, most importantly, the Commission failed in its report to state clearly that the head teacher was a governor of the School! This would have made a difference as the head teacher would also have had fiduciary duties in the capacity of governor as well as his duties to his employer. (This explains the relevance of the Commission referring the board of governors to its guidance on trustee remuneration and expenses.) Reading between the lines (for that is what one must do to get closer to the truth) it would seem that the board of governors were not communicating clearly with their own finance committee and, of course, the headmaster and this lead to aggrieved persons unknown talking to the press.

A storm in a teacup perhaps but one which gave the Commission an easy win in terms of publicity. Stanbridge Earls School Trust We preface this case by saying that it is very difficult to establish what actually happened at the school simply by reading the Commission’s report. It would seem that what began as a claim for disability discrimination and for sexual discrimination, led to an emergency Ofsted inspection in relation to safeguarding concerns raised by a Tribunal in the disability discrimination case which found for the claimant. The DfE concluded that school standards and some “National Minimum Standards for Boarding” were not being met. Notice was served on the trustees by the Secretary of State requiring them to draw up an action

plan detailing the steps to be taken to meet the standards. The action plan was submitted but Ofsted required it to be amended before it could be considered to be fit for purpose. The action plan was subsequently rejected by the DfE. The DfE highlighted concerns about governance and leadership at the school and this led the Commission to open a statutory inquiry. The Commission said it looked at overall administration, governance and management and whether the trustees fulfilled and were capable of fulfilling their legal duties and their ability to put in place and implement an action plan acceptable to the DfE. The Commission also monitored the implementation of the action plan and the financial situation of the school.

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The Commission ascertained that the trustee body comprised of 13 individuals with a wide range of skills and experience including former and practising Ofsted and Independent Schools’ Inspectors, that the trustees met regularly, and that there were standing committees, including a finance committee, an education committee, a property and risk assessment committee, and a child protection and safeguarding committee. The Commission was satisfied that the overall administration, governance and management of the charity was satisfactory. They also found that the trustees acted prudently in relation to the “incident” (no explanation given for this) and the Tribunal. The Commission found

that their decisions were reasonable. The Commission even found that the person who brought the action in the Tribunal had had their complaint reported to the Commission in 2011 as a serious incident. The Commission monitored the school’s progress in implementing the action plan. Unfortunately, the bad publicity and the Tribunal findings lead to a drop in the school’s revenue. The trustees submitted the final action plan to the DfE but it was not assessed because, almost immediately afterwards, the trustees decided to place the school in administration. The trustees also tried, without success, to negotiate with third parties to take over the school and secure its future operation. The Commission found that the trustees had acted reasonably throughout. The administrators of the school have not identified any matter that might lead to personal liability of the trustees for losses to the school’s funds. Commentary: It is very difficult to say what the involvement of the Charity Commission achieved in this very sad case other than to point out trite lessons for other charities which seem to be entirely divorced from the realities that the governors had to face at the school and to remind the sector that the Charity Commission has limited scope to intervene in the trustees’ decision-making

processes provided that the decision was within a range of decisions that a reasonable trustee body could have made.

On a separate note, we congratulate Moira on recently being named in the Super Lawyers Top 50 Women in London which was featured in The Daily Telegraph. Super Lawyers recognises lawyers who have achieved excellence in their practice of law. The rigorous selection process measures peer recognition and professional achievement by peer nominations, independent research and peer evaluations.

Contact E: moira.protani@wilsonslaw.com T: 020 7998 0420

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Safeguarding in Schools Key Guidance • Keeping Children safe in Education (April 2014, Department of Education) • Inspecting Safeguarding in maintained schools and academies (January 2015, Ofsted) • Working Together to Safeguard Children (March 2013) • Safeguarding Children and Safer Recruitment in Education (1 January 2007)* *This has been replaced by Keeping Children Safe in Education, however, it is useful to keep this guidance for reference purposes

Sophia Akram is a solicitor in our employment and education teams.

Recruitment in Schools In our Autumn 2014 Schools Newsletter, Stephen Oxley addressed elements of the new statutory guidance, ‘Keeping Children Safe in Education’, which came into force in April 2014 and applies to maintained and independent schools. The guidance covers four areas: 1 What staff should know and do in relation to safeguarding 2 The responsibility of governing bodies and proprietors 3

Safer recruitment

4 Allegations of abuse against teachers and other staff This article focuses on safer recruitment.

Summary of the safer recruitment guidance Before embarking upon the recruitment process, you should plan ahead, identify the proposed members of the short listing and interviewing panel, and involve an individual who has undertaken safer recruitment training. A checklist of points to consider is set out below: • Advertising and Job descriptions You should include a safeguarding statement in any advert and refer to DBS requirements. The job description should emphasise that your staff members are securely managed and specify to whom the post-holder reports. • Application forms You should scrutinise the information

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provided and ensure that the applicant’s history is complete. Where there are gaps or anomalies, you should verify the position through references and asking questions at interview. • Shortlisting References should be requested so that they are available prior to interview. These should help you to assess an applicant’s suitability to work with children and provide you with an opportunity to follow up any concerns. If the references provided have been vague or the referee has failed to provide adequate information, this should be followed up prior to interview. The shortlisting panel should decide on the structure of the interview and decide what specific safeguarding questions will be asked. • Interview You should confirm the identity documents have been seen and references have been received. You should ask specific safeguarding questions and should carefully consider how the candidate reacts to the safeguarding questions posed. • Before making an offer You should confirm all identity and qualification checks are in order and ensure that the candidate has the right to work in the UK. DBS checks should be

obtained before an offer is made; alternatively, the offer should be made subject to the DBS check being satisfied. Key to each of the above is to make clear to candidates during the recruitment process that your school takes safeguarding very seriously and that you have effective safeguarding systems in place. This will demonstrate to candidates your commitment to safeguarding and may discourage those who are unsuitable from applying. Frequently Asked Questions Some frequently asked questions are set out below: Can a candidate make a request to see his/her reference? This question is most likely to arise in the event of a school withdrawing their offer of employment on receipt of an individual’s unfavourable reference. An employer (whether previous or current) does not have to show an individual a reference that it has provided to a third party. An individual can, however, make a data subject access request to the school that receives the reference. Such a request would have to satisfy the usual requirements of a valid data subject access request. Assuming it does, you then need to ensure that, in providing the reference, you do not disclose the identity of the

author of the reference. If the reference was provided in confidence, you may (depending on the circumstances) need to seek the consent of the person who provided the reference, prior to providing the reference to the individual. It may also be appropriate to redact some of the reference. Please contact us if you require advice in relation to a specific request. Should I explain why an offer is withdrawn? There is no legal requirement to provide the candidate with reasons for your decision. We advise, however, that you document the reasons for the withdrawal and retain evidence that supports such reasoning; this may assist if the individual were later to allege that the reason for the withdrawal of the offer was unlawful (for example, as it constituted unlawful discrimination). What should I do if I discover a CV has been fabricated? If employment has already commenced, you should comply with your disciplinary procedure prior to arriving at a decision. Lying on a CV is likely to constitute gross misconduct. A dismissal for this reason should be referred to the National College of Teaching and Leadership (NCTL). It may also, depending on the facts, be necessary to refer the matter to the DBS.

If employment has not already commenced, you can withdraw the offer of employment. You should, as above, consider whether referral to the NCTL and/ or DBS would be appropriate (depending on the facts). How do I deal with applications relating to individuals from a foreign country? Schools must first be sure that foreign nationals have permission to work in the UK. In relation to safeguarding, applicants who have lived or worked outside of the UK must undergo the same checks as other staff members. Schools must make such further checks as they deem appropriate in order to ascertain any relevant events that occurred outside the UK. The DBS cannot access criminal records held overseas; however, an applicant can obtain a criminal record check from the relevant authorities abroad. Guidance on the application process can be found at www.gov.uk.

Contact E: sophia.akram@wilsonslaw.com T: 01722 427 668

20 IN THE NEWS

Upcoming events Following our successful briefing held in Autumn 2014, the employment team are pleased to announce they will be running another session before the Summer. Further information will be available shortly with details on how to register. To confirm you are on the mailing list to receive invitations to our events please email marketing@wilsonslaw.com with your contact details. Wilsons announce sponsorship of Magna Carta anniversary celebrations As part of the celebrations to mark the 800th anniversary of the signing of the Magna Carta, Wilsons Solicitors are proud to announce their sponsorship of Salisbury Cathedral’s programme of events. The cathedral is home to the finest of the four

surviving original copies of the document which was drafted in 1215 and is seen as one of the earliest building blocks of the British state and the foundation of the rule of law. The Dean of Salisbury, the Very Reverend June Osborne, said: “We are grateful to Wilsons for their generous contribution to Salisbury Cathedral’s Magna Carta 800 programme of celebrations. Their support helped us secure the Heritage Lottery grant, which has allowed us to create a permanent new Magna Carta exhibition in the Chapter House.” Mike Parker, Managing Partner of Wilsons, added: “We are delighted to be supporting Salisbury Cathedral in its celebration of this remarkable document and the principles that it enshrined and inspired in England and around the world.”

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© 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.