EducationEducation Law News Autumn 2012

CONTENTS

1-2 Bullying – The Recent Ofsted Report

2-3 Liability for Accidents – How the Courts Respond

3-4 Exclusions – A Brave New World

5-6 An Adjudicator Calls: Recent Changes in Objections to Admissions Policies

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The detailed Ofsted report, “No Place for Bullying – How Schools

Create a Positive Culture and Prevent and Tackle Bullying” was

published on 19th June this year. This report was based on a

survey to evaluate the effectiveness of the actions that schools

take to create a positive school culture and to prevent and tackle

bullying. Much of the survey focused on the unique experiences

of individual pupils, and their understanding of bullying and its

effects, with inspectors asking pupils what they would do if they

were bullied, whether they had been bullied once at their current

school and how well they thought their school dealt with bullying.

This is a very detailed report so I will pick out some of the main

conclusions.

Firstly, the inspectors found that most of the schools that they

visited had a positive culture and that most pupils were considerate

of each other. It was found that many of the schools had developed

a range of effective strategies for pupils to learn about moral and

social issues. In the best schools, expectations and rules clearly

spelled out how pupils should interact with each other. This meant

that children developed empathy and understood the effect that

bullying could have on people.

The best schools recorded bullying incidents, and proceeded to

analyse the results, which meant that they could look for trends

and patterns and take action promptly.

However, the inspectors also found in some schools the analysis

of behaviour and bullying was not so focused as it could be, thus

meaning that those schools were not able to see exactly what the

issues were or what actions needed to be taken next.

In a small amount of schools visited, behaviour was more variable

and interactions between pupils were not so positive. Incidents

Bullying – The Recent Ofsted Report

Bulletin

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There have been further reported cases that confirm the pragmatic

approach taken by the courts when accidents happen in school or

on school trips. In the first case, Hammersley-Gonsalves v Redcar

& Cleveland Borough Council, a pupil was injured by a golf club

swung by another pupil as they walked to the golf area. There

were 22 pupils in the group and they were walking in single file.

The Court of Appeal held that a teacher could not be expected to

see every action of 22 boys walking in that fashion. There was no

background of bad behaviour and on those facts the school was

not liable to compensate the pupil for the injuries. In the second

case of Wilkin-Shaw v. Fuller, which related to the sad death of

a pupil taking part in the Ten Tors Expedition on Dartmoor, the

judge held that neither the school nor the teacher in charge of the

school party, were liable for what happened. In that case, though,

Liability for Accidents – How the Courts Respond

were dealt with when they happened but the preventative work

was not so effective.

One of the main headlines from the report is that schools need

to allocate sufficient resources to enable staff to have specific

training. It was found that the training in the majority of schools

that provided training tended to be very general, and did not

always focus on the different types of bullying that could occur,

for example homophobic bullying. This meant that some staff

were not feeling wholly confident to tackle all types of incident.

Another recommendation in the Ofsted report is for schools to

have a combined behaviour and anti-bullying policy, the intention

being that bullying should be seen as being part of a continuum

of behaviour, rather than being seen as something separate.

According to the Ofsted report, “having one policy that commonly

linked the schools expectations and behaviour to its stance on

bullying left a greater clarity for both staff and pupils”.

The report also suggests that certain groups of people are more

likely to be bullied. These include disabled pupils and those

who have special educational needs, and pupils who are, or are

perceived to be, homosexual. The inspectors found that casual

use of language that discriminated against these groups of

pupils, and others, was common in many of the schools visited.

Although many pupils were well aware that such language was

not acceptable, it was often seen as just being “banter”. Some

staff also indicated that they did not always feel confident to

challenge unacceptable language or have the strategies to do so.

The report also states that “disability was seldom covered as well

as other aspects of diversity. The schools were generally sensitive

to the needs of individual disabled pupils or those who have

special educational needs. However, disabled people were often

not considered as a group, even where schools were covering the

areas of race, culture, faith, gender and sexuality thoroughly”.

So although most schools are doing well on this issue, the clear

message is that there is always room for improvement, and

that adequate resources and specific training are required. For

further advice on this subject or to discuss your existing policy

and practical recommendations please contact David Milton at

djmm@stoneking.co.uk.

David Milton djmm@stoneking.co.uk 01225 324433

Find out more Ofsted report – http://www.ofsted.gov.uk/resources/no-place-for-bullying

Bullying – The Recent Ofsted Report (continued)

the decision came only after a very detailed examination by the

judge of the qualifications of the teacher to lead the expedition

and of the arrangements, including back-up and emergency

arrangements, that were in place. In the third case, Blair-Ford v.

CRS Adventures Ltd, the claimant suffered catastrophic injuries

when taking part in a welly-wanging activity during a school

visit to an activity centre. As part of a handicapping system to

enable the activity to be competitive as between adults and

students the adults were required to throw the wellington boot

backwards through their legs. The claimant, a fit and active person,

over-balanced and sustained injuries that led to him becoming

tetraplegic. Again, the judge conducted a very detailed enquiry

into the activity, the qualifications of the organisers, the process

or risk assessment and the absence of any history of accidents

and concluded that this was a freak and unforeseeable accident

(although having happened it is now clearly foreseeable and

anyone involved in such an activity needs to ensure that any

participant knows the risk and how to counter it) for which no

blame could be attributed.

That third case adds a dimension to the risk assessment process.

There was a discussion about the need for risk assessments to

be carried out in advance and recorded – static risk assessments

– and those that are conducted mentally during the course of

the activity – described as dynamic risk assessments. These are

appropriate where there are many variables arising in the course

of the activity as was the case here and the judge held that the

fact that there was no written risk assessment in relation to the

handicapping system applied to the adults did not give rise to

liability. Not everything, therefore, does have to be written down

but by not assessing risk in advance and recording it schools

will leave themselves open to interpretation by the judge if an

accident occurs.

What these cases demonstrate is that the judges recognise that

accidents do happen, that they are not necessarily the fault of

the school and that the standard of care applied, whilst stringent,

does not demand perfection. However, every case of this kind

depends on its particular facts and they do not reduce the need

to plan and assess risk meticulously. The paper trail is critical as a

means of demonstrating this so make sure that good records are

kept. Also, make sure that when you plan activities that go beyond

the routine trip to the zoo or theatre you make sure that those

planning and leading are properly qualified and equipped to do so.

Michael Brothertonmgb@stoneking.co.uk 01225 324481

David Milton djmm@stoneking.co.uk 01225 324433

In comparison to school admissions, the law and guidance relating

to exclusions has been relatively untouched by the various guises

of Education Departments. There is now all change as of 1st

September 2012, with new statutory regulations and guidance

applying to all exclusions from that date (any late summer term

exclusions would be dealt with under the old guidance). Academies

are expressly within the statutory framework, so Annex D to the

funding agreement is now redundant.

On the face of it, the new legal process is very attractive – the

headline being that the Independent Review Panel (IRP), which

replaces the independent appeal panel, will not have the power

Exclusions – A Brave New World

“What these cases demonstrate is that the judges recognise that accidents do happen, that they are not necessarily the fault of the school...”

to direct the reinstatement of a pupil where (a) the head teacher

has excluded that pupil permanently; and (b) the governing body

has upheld the exclusion.

However if you scrutinise the guidance a little more closely, it raises

enough questions about process and procedure to suggest that

the Administrative Court may be dealing with yet more exclusion

cases in order that we can all understand precisely how this new

process is really meant to work.

Prior to the IRP stage, the guidance is less prescriptive (in keeping

with the Department for Education’s aim at reducing bureaucracy)

but the process is fundamentally the same, in terms of investigation,

burden of proof, decision to exclude. There is the requirement to

take into account the context (e.g. bullying, bereavement, mental

health issues) that may have influenced or impacted upon the

relevant incident and there is emphasis on allowing the accused

to have his/her say. There is no longer a helpful list of examples of

one-off incidents which might be deemed to merit a permanent

exclusion but I would suggest they still hold force as good practise.

Focusing on the IRP stage (which only applies to permanent

exclusions), the first significant point is that parents even if

their child is not recognised by the school as having any form of

SEN may request an SEN expert be present at the IRP hearing.

The expert who should not have had any previous involvement

in the assessment or support of SEN for the excluded pupil is

to provide impartial advice to the IRP commenting on any SEN

aspect of the exclusion. We advise academies to source a panel

of SEN experts to enable (a) choice for the parent; and (b) ease

of appointment for hearings.

The decision making powers of the IRP are to uphold the governors’

decision to exclude the pupil, or it may recommend the governors

review its decision again, say where fresh evidence has come to

light, or it may quash the governors’ decision and direct that the

governors reconsider – where the IRP considers the decision of the

governors was irrational or ‘off the rails’. In either instance, the

governors are required to reconvene within 10 school days of that

IRP decision, but notably there is no guidance as to the process

of this reconvening : e.g. whether this ought to be before a fresh

governor panel, whether a new hearing should take place etc.

In the absence of being compelled to convene a fresh hearing

one may presume that the governing body simply is required

to reconvene and either uphold its original decision or agree to

reinstate the pupil. If the decision is to uphold the original decision

to exclude then the IRP has the power (where it had quashed the

original decision) to order an adjustment in the school’s budget

in the sum of £4,000 (or for an academy, to make a payment in

that sum to the local authority).

It seems to us that the reduced power of the IRP will mean that

parents and their advisors are likely to challenge the exclusion

at the governor stage and governor decisions will be subject to

greater scrutiny.

Finally, parents may also bring a claim in the First Tier Tribunal

(disability discrimination) or the County Court (for other forms of

discrimination). The time limit for such claims is 6 months from

the date of the alleged discriminatory act and both the Tribunal

and the Court have the power to reinstate the excluded pupil.

There is the possibility that a pupil is excluded, removed from

the school roll, and several months later is reinstated by the

Court or Tribunal.

We will be happy to advise schools and academies in detail.

Michael Brotherton mgb@stoneking.co.uk 01225 324481

Under the School Admissions Code 2012 and accompanying new

Regulations, a number of changes were made to objections to the

Schools Adjudicator about the admissions arrangements that each

state funded School must determine by 15th April each year. These

changes make it all the more vital for Schools at the receiving end

of an objection to take a proactive approach in response (often

during the summer holidays!).

First, any person can object about arrangements to the Adjudicator

by the earlier deadline of 30th June. Whilst this reduces the window

of opportunity for an objection to less than three months, it will

give Adjudicators more time to fix changes to arrangements

before the publication of Local Authority composite prospectus

(normally by 12th September).

Secondly, the jurisdiction and powers of the Adjudicator have

been altered. Objections cannot be made which raise the same

or substantially the same matters as the Adjudicator has decided

on for that School in the last 2 years. On the other hand, and

somewhat out of balance, the regulation allowing an Adjudicator

to fix changes to arrangements over a set number of years has

been removed. This latter change is of considerable importance

because even though an Adjudicator’s decision is “binding

and enforceable” on the particular version of the admission

arrangements that are the subject of the immediate objection,

no Adjudicator’s determination has a binding (“precedent”) effect

on the determination by another Adjudicator of any objection

to a future version of those arrangements in subsequent years,

although it will of course be very influential. Consequently a

School could potentially attempt to re-introduce content into

future versions of its arrangements which an Adjudicator has

removed from a previous version, provided that it has sufficient

reasons and supporting evidence, although this might be very

difficult in practice if factual circumstances have not changed.

Our recommendations to Schools receiving notice of an objection

from the Schools Adjudicator are:

◆◆ Take it seriously: the Adjudicator has a very broad jurisdiction

over your admission arrangements and can order amendments

to any part of them (even those that are not part of the

Objection);

◆◆ Clarify the procedure that will be used to ensure that you have

your say: Adjudicators do not have to follow a set procedure

in handling evidence and will not always come back to you

for comment on new evidence arising before issuing their

written determination. Sometimes they will offer a meeting,

sometimes they will not.

◆◆ Have your say:

◆◆ There is no effective means of appealing an Adjudicator’s

determination: theoretically a School can seek judicial review

of it by the High Court, but that Court will defer to the

Adjudicator’s expertise unless there is a misapplication of the

law or a glaring failure to provide reasons for decisions.

◆◆ As referred to above, because the Adjudicator cannot fix a time

limit on changes to your arrangements it is worth exhausting

a dialogue with him/her over particularly critical issues to

put yourself in the best position possible if you want to try

and re-introduce any parts of your arrangements that he/she

An Adjudicator Calls: Recent Changes in Objections to Admissions Policies

“...because the Adjudicator cannot fix a time limit on changes to your arrangements it is worth exhausting a dialogue with him/her over particularly critical issues...”

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www.stoneking.co.uk email: education@stoneking.co.uk © Stone King LLP 08/2012

The Education Bulletin deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individual circumstances of a particular problem. Stone King LLP - registered limited liability partnership no OC315280, registered office 13 Queen Square, Bath BA1 2HJ

Your Contacts

Education: Roger Inman Partner Michael King Partner Graham Burns Partner Stephen Ravenscroft Partner Richard Gold Consultant Geoffrey Davies Consultant Michael Brotherton Senior Associate Laura Berman Senior Associate Kate Grimley-Evans Solicitor Nicola Berry Solicitor Lydia Brookes Solicitor Ciara Campfield Solicitor Laura Giles Solicitor

Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Tamsin Wilkinson Solicitor Victoria Blake HR Consultant Sarah Turner HR Adviser

removes now into a future set of arrangements. Unless the

Adjudicator is pressed to deal with a particular point in detail,

he/she may simply provide a summary determination over

that point.

In short, although the quality of Adjudicators is generally high,

their jurisdiction over Schools’ admission arrangements is broad

and they have considerable freedom to act as they want. If you

need any further information about handling adjudications or

how to plan future admission arrangements after an Adjudication,

please contact Roger Inman via ri@stoneking.co.uk.

Roger Inman ri@stoneking.co.uk 01223 451344