The Academies Act has confirmed the Government’s intention

to bring Academies within the Freedom of Information Act (FOIA)

regime. No timeframe has yet been announced, but when the

provisions are in force, academies will doubtless join the growing

number of maintained schools facing vexatious requests for

information.

There is no doubt that the FOIA is a useful tool for the public to

obtain information about public bodies that would not otherwise

be available. However, it is subject to abuse by a minority of

individuals intent on harassing or causing inconvenience to

public bodies. Complying with repeated and troublesome

requests can be draining and demoralising for all involved, but

there is a solution! If a request is “vexatious” or has already been

complied with within a reasonable period, there is no requirement

to provide the information asked for, and a recent case decided

by the Information Rights Tribunal offers further encouragement

for those suffering these requests.

What is vexatious?There is no definition of the term “vexatious” in the Act itself,

but the Tribunal has referred to the normal usage of the word -

to describe activity that is likely to cause distress or irritation,

literally to vex a person to whom it is directed. In the Hossak

case the Tribunal stated that “for the request to be vexatious

there must be no proper or justified cause for it.”

Significantly, therefore, the exemption is concerned with whether

the effect of the request is vexatious and not whether the

applicant is vexatious. It is the effect on the public authority

which is relevant, rather than the attributes of the individual.

When deciding if a particular request is vexatious, the background

history between the applicant and the public authority (i.e. the

school) should be considered, as the context of the request may

provide the grounds for it being vexatious, rather than the request

itself. For example, a request that appears to be intended simply

Vexatious Requests

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EducationBulletin Education Law News Autumn 2010

CONTENTS

1-2 Vexatious Requests

3-4 Exclusions

4 Academies and Consulting with Your Staff

5-6 Free Schools

“There is no definition of the term “vexatious”in the Act itself…”

to reopen issues which had been disputed several times before

would suggest it is vexatious.

General principlesThe Information Commissioner (ICO) has produced guidance on

the meaning of vexatious and the recent Tribunal case of Ward v

IC (decided in May 2010) summarises some helpful general

principles and offers some pointers for schools along the way.

Whilst a case turns on its own facts, the Tribunal has given some

indication of considerations that may be relevant when looking

at a potentially vexatious request:

� where the request forms part of an extended campaign to expose

alleged improper or illegal behaviour, where there is evidence

to indicate that the campaign itself is not well founded;

� where the request involves information which had already been

provided to the applicant;

� the nature and extent of the applicant's correspondence with

the public authority suggests an obsessive approach to disclosure;

� the tone adopted in correspondence is tendentious and/or

haranguing;

� the correspondence could reasonably be expected to have a

negative effect on the health and well-being of officers; and

� responding to the request would be likely to entail substantial

and disproportionate financial and administrative burdens.

The Tribunal also highlights the need for a balance to be struck

between the need to protect public authorities on the one hand

and the need not to constrain, unfairly, requests for information

on the other and the vexatious exemption should not be used

lightly.

Particular issues for schoolsThe case underlines a number of other important considerations

which schools will need to be aware of, including the relevance

of the size of the governing body. Requests made to a smaller

governing body will have a larger administrative impact and the

threshold for when requests becomes vexatious is likely to be

lower than in schools with a larger and better resourced governing

body.

When looking at the context of a particular request, all previous

requests/conduct of the parties making the request is relevant

– not just requests that relate to one particular issue. However,

it is important to remember that it is the request that is vexatious,

not the person making it, so they may make a perfectly reasonable,

un-vexatious request at a later date.

Even if a person, for example a parent, has a legitimate grievance

against a school, remember that both the ICO and the Tribunal

have a limited jurisdiction. Neither can make a finding in relation

to the underlying complaint. If the request is, on the facts,

vexatious, then the ICO (and the Tribunal, if the decision is

appealed) must support the school’s reliance on the exemption.

In Ward v IC the parent making the requests was doing so in

order to support an allegation that her child had been bullied

and that the school had failed in its duty to protect him. However,

because her requests were vexatious, her appeal was unsuccessful.

Finally, a school must remember to inform the requestor within

20 days of receipt of the request that the school is relying on the

vexatious exemption. Tom Murdoch tm@stoneking.co.uk

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Vexatious Requests (continued)

“When deciding if a particular request isvexatious, the background history between theapplicant and the public authority (i.e. the school)should be considered…”

Headteachers (or in their absence, the teacher in charge) must

have regard to the Secretary of State’s guidance on exclusions

“Improving Behaviour and Attendance: Guidance on Exclusion

from School and Pupil Referral Units”.

The Guidance refers to four sets of circumstances where an

individual pupil may be required to leave the school site:

1. There is sufficient evidence that a pupil has committed a

disciplinary offence and allowing the pupil to remain in school

would seriously harm the education and welfare of the pupil or

others in the school;

2. A pupil is accused of a serious criminal offence but the offence

took place outside the school’s jurisdiction. In these circumstances

the headteacher may decide it is in the best interests of the

individual and the community for that pupil to be educated off

site for a certain period;

3. Medical reasons;

4. A pupil is given permission to leave the school premises briefly

to remedy breaches of the school’s rules on appearance or

uniform.

The Guidance states that a decision to exclude a child permanently

is a serious one and should only be taken where the basic facts

have been established on the balance of probabilities.

Furthermore exclusion should not be imposed in the heat of the

moment unless there is an immediate threat to the safety of

others, but after a thorough investigation has been carried out,

all evidence available considered and pupils allowed to give their

version of events.

If a headteacher is satisfied that, on the balance of probabilities

a pupil has committed a disciplinary offence and needs to be

removed from school for that reason then formal exclusion is

the only lawful method of removal.

Often, a headteacher will initially exclude a pupil for a short fixed

term and record in the exclusion letter that investigations will

continue and the exclusion may be made permanent. This

appears entirely proper, avoiding a ‘knee jerk’ reaction and allowing

a considered decision to be made. But is this actually a lawful

process? The Guidance states that such practice (i.e. converting

a fixed term exclusion into a permanent one) should only be used

in “exceptional circumstances” “usually where further evidence has

come to light”. Normally there is no further evidence that comes

to light in this short period, but the headteacher reflects that

permanent exclusion is the correct sanction.

A recent case in Northern Ireland that came before the Supreme

Court looked at the process of exclusions. The NI process is in

virtually all respects identical to the exclusion system in England

and Wales. In this particular case, the principal had ordered that

a pupil remain at home whilst investigations were carried out.

It was termed a ‘precautionary exclusion’. The Supreme Court

has ruled that this was unlawful and at least one commentator

on the case has cast doubt as to whether a headteacher may

exclude a child for a fixed term in order to continue to investigate,

and/or as a means of protecting the health and safety of the

school community.

A headteacher who excludes for a fixed term has to be satisfied

that a serious offence has taken place and that it is appropriate

to impose a disciplinary sanction. What therefore is the

“exceptional circumstance” that permits the school to extend

the fixed term exclusion and/or make it permanent?

The Supreme Court appears to have rejected the notion, where

there is a disciplinary aspect, that a headteacher can require the

pupil not to attend school as part of his general management

powers, without going through a formal exclusion process. The

Supreme Court has said that this general management power

was likely only to apply if there were medical reasons – for example

the pupil had a contagious disease - although the door may still

be open in relation to other action where there is no disciplinary

element.

In my view where a headteacher is faced with a disciplinary

situation that he would wish to investigate further, but is satisfied

that on the balance of probabilities the offence has taken place

[which he must be] the headteacher may exclude the pupil for

a fixed term and record in the letter that the exclusion is on

disciplinary grounds and that it may be made permanent; however

the headteacher wants time to reflect on the gravity of the offence

and the risk to the school community. Whilst it may not be the

case that ‘new evidence comes to light’ in the intervening period,

I believe that a headteacher may still convert the fixed period

Exclusions

Exclusions (continued)

If your School is considering applying for Academy status it is

important that the employment law issues are appropriately

addressed.

The change in status will amount to a relevant 'transfer' under

the Transfer of Undertaking (Protection of Employment)

Regulations 2006 ('TUPE').

The transfer does not terminate the employment contracts of

the staff at the existing schools. Instead those employees will

transfer to the Academy under their existing terms of employment

and with their continuity of service intact. This means that there

is no break in the employees’ service.

The Academy steps into the school’s shoes with regard to the

employment contracts and anything done (or not done) by the

school before the transfer is treated as having been done by the

Academy.

The TUPE regulations enhance transferring employees’ unfair

dismissal protection by providing that certain dismissals are

automatically unfair. As a result the Academy is severely limited

in its ability to dismiss employees fairly when a TUPE transfer

occurs.

Any dismissal of an employee with continuous employment of

a year or more will be automatically unfair where the sole or

principal reason for the dismissal is either:

� the transfer itself;

� a reason connected with the transfer that is not an economic,

technical or organisational reason entailing changes in

the workforce (an ETO reason).

The majority of Schools transferring to an Academy would not

want to dismiss any of their staff but they might wish to change

their Terms and Conditions.

It is possible to make changes to employment terms before or

after a transfer (a "permitted change") where the sole or principal

reason is either:

� a reason unconnected with the transfer;

� a reason connected with the transfer which is an ETO reason

entailing changes in the workforce.

If the Academy is unable to establish an ETO reason for the

changes, it is at risk in relation to any claims which may be brought

by employees.

If the variations are invalid then even if the employee accepts

them they will not be bound by them. Indeed, in those

circumstances they are entitled to take the benefit of any improved

terms but ignore the detriment of any less favourable terms.

Consequently, it is important to take care and indeed take

appropriate advice during the process.

For further information regarding ETOs and what can and cannot

be done or how it can be done on the creation of an Academy

please contact Nick Watson nw@stoneking.co.uk.

Academies and Consulting with your Staff

exclusion into a permanent exclusion setting out clearly the

reasons for so doing.

There could be an argument of double jeopardy (being punished

twice for the same offence). However that argument is offset by

stating that permanent exclusion is ‘usually the last resort’ and

the headteacher wanted to evaluate all the evidence available,

consider risk assessments or alternative strategies etc. Note that

the Guidance is just that, and provided the headteacher has had

regard to it and has cogent reasons for deviating from it, any

legal challenge based on the fact that the headteacher has not

followed the Guidance to the letter can be defended. What is

essential though, to avoid a valid claim of double jeopardy is to

ensure that the conversion to permanent exclusion is effected

before the expiry of the term of fixed term exclusion.

If the headteacher is not initially satisfied on the balance of

probabilities that the offence took place then no fixed term

exclusion should be made. The headteacher will need to manage

the situation internally, whilst continuing investigations before

coming to a decision. By not imposing a disciplinary sanction at

that stage, the headteacher is free to move direct to permanent

exclusion if the facts warrant it.

For advice on exclusions including reviewing your disciplinary /

behaviour policies please contact Michael Brotherton

mgb@stoneking.co.uk

An important and well-publicised element of the coalition

government’s education programme is the creation of so-called

Free Schools. These, in essence, will be publicly funded schools

set up by individuals or organisations who see a need for a new

school to meet particular needs. The promoters will,

characteristically, be parents, teachers, charities and perhaps

existing independent schools although the indications coming

from the Department for Education (DfE) is that they do not see

this as a rescue opportunity for failing independent schools.

The Academies Act refers to the schools as additional schools.

The schools will be set up legally as academies, so that they will

be constituted as a charitable company limited by guarantee

operating under a funding agreement with DfE, under which the

company commits to providing and running the school and DfE

commits to providing funding. Funding will be on a similar basis

to other academies which means that they will broadly receive

what a comparable school within their local authority would

receive together with additional funding representing money

which a local authority would hold back centrally. They will have

academy freedoms which, in essence, means freedom (with

certain restrictions in relation to RE and collective worship and,

in the case of secondary schools, Key Stage 4 and post-16 provision)

as to the curriculum and the right to set individual employment

terms and conditions without being bound to follow STPCD for

teachers or the local authority Green Book for non-teaching staff.

It has been said that planning restrictions on establishing new

schools will be removed. It remains to be seen whether that

means that there will be no planning restrictions at all, raising

significant questions about matters such as environmental impact

including key flash points such as traffic and parking, or whether

there will simply be a relaxation of the rules relating to the change

of use of existing buildings. There will be limited capital available

and what there is will be allocated to refurbishment and

adaptation. Promoters will normally be expected to identify and

provide premises, which may be for example, converted offices

or a hospital and DfE, working through Partnership for Schools

if that body survives as the body responsible for capital funding,

will assess suitability and adaptability. One open question is how

on-going premises costs will be met. Owners of property will

expect to see a return so will expect a rent. Alternatively

promoters may raise capital privately and have interest costs.

Schools currently are not funded in a way that allows for rent or

interest on borrowing, so free schools will need additional

resources if they are to operate on a level playing field with other

schools in their area. One suggestion from DfE is that there will

be capital grants to cover this but more detail will be needed to

be sure that rising rents or increased interest charges can be

covered.

New free schools, by definition, add to pupil places in an area.

Indeed, that is a central point, that the schools will make new

provision of a kind that is not currently available and that non-

availability is not necessarily related to an insufficiency of places.

Existing schools may, therefore, suffer and some may well struggle

to survive. Perhaps an unarticulated sub-text of free schools is

to procure the disappearance of schools that do not meet popular

demand without actively having to engage in a general re-

organisation process. However, the Act provides that a

consultation must be entered into with such persons are

considered appropriate and one would expect challenges to be

made where this consultation fails to include relevant local

stakeholders.

Some free schools will be promoted by bodies with expertise in

establishing and running schools. Others, especially those

proposed by small groups of parents or teachers, will need

Free Schools

“New free schools, by definition, add to pupilplaces in an area.”

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email: education@stoneking.co.uk © Stone King LLP 2010

The Education Bulletin deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individualcircumstances of a particular problem.

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Your Contacts

Education:Roger Inman PartnerRichard Gold ConsultantStephen Ravenscroft PartnerMichael Brotherton Senior Associate

Employment:Nick Watson PartnerPeter Woodhouse PartnerTamsin Wilkinson SolicitorJean Boyle Associate

significantly more support. They will possibly be supported by

an accredited provider, again assuming that this concept survives,

and in any event will get initial guidance from New Schools

Network which is a separate charity funded by DfE set up to

assist and co-ordinate applications for free schools. The initial

process is conducted through them by completing a short

proposal form. New Schools Network will assist promoters

(directly or by reference to external organisations) to prepare and

complete the form but our understanding is that all applications

will be considered by DfE. Richard Gold rg@stoneking.co.uk

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