Wilsons - Schools Newsletter - Spring Term 2014

Schools Newsletter Spring Term 2014

2 FOREWORD

Welcome to our Spring Term newsletter

Stephen Oxley is a partner in our employment department and head of the education team.

In this edition Emma Swann sets out the information that should be published on academies’ websites, Lucy Layet and Katharine Shaw consider the sometimes thorny issue of parents’ entitlement to information about their child, Sophia Akram looks at the right of independent fee-paying schools to exclude pupils with a disability for behaviour issues, Amanda Franklin sets out some HR cost savings, and our guest contributor, Michael Dennison (Senior Education Adviser at Mouchel) addresses effective performance management.

Meanwhile, we are looking forward to hosting our academies seminar at Holland Park School on Friday 24 January – further details are included on the final page. Please do contact us if you require further information on this or any of the issues addressed in our newsletter.

Happy New Year!

Contact E: stephen.oxley@wilsonslaw.com T: 01722 427 743

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This edition

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I nformation to be published on academy websites Read more >

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E xcluding pupils with a disability for behaviour issues Read more >

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arents’ entitlements to P information about their child Read more >

R Cost Savings H Read more >

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ffective E Performance Management Read more >

4 FEATURE

Information to be published on academy websites

Emma Swann is a partner and head of our academies practice.

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cademies are required by virtue of their Funding Agreements and the Education (Independent School Standards) Regulations 2010 as amended to publish certain information on their websites. This article gives an overview of these requirements. It is important for all academies to regularly review their websites to ensure that they are compliant with their obligations.

Contact Information An academy must arrange for the following information to be published on the school’s website: • The name, postal address and telephone number of the academy and the name of a person to whom enquiries should be addressed.

• The registered company number of the academy.

• The name of the Head teacher and the name and address for correspondence of the Chair of Governors.

• A list of governors.

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Articles of Association/Funding Agreement/Accounts An academy must publish its Articles of Association, Funding Agreement and its annual accounts on its website.

Ethos and Values An academy must publish a statement of the school’s ethos and values.

Admissions An academy must publish its determined admission arrangements in relation to each relevant age group at the academy.

This must include any arrangements for

selection, any oversubscription criteria and an explanation of the process of applying for a place at the academy.

Safeguarding/Health and Safety/SEN An academy must make available on its website details of its arrangements made to safeguard and promote the welfare of pupils at the school. It must also publish a copy of the school’s health and safety and SEN policies.

Behaviour/Anti-bullying/Exclusions An academy must publish on its website the school’s behaviour, anti-bullying and exclusions policies.

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Charging/Complaints

Results

An academy’s complaints and charging and remissions policies must be published on its website.

An academy must ensure that the following information is published on its website:

Curriculum

If applicable, the academy’s most recent Key Stage 2 results as published by the Secretary of State in the School Performance Tables:

An academy must publish on its website information about its current curriculum, including: • The content of the curriculum; • Its approach to the curriculum; • If applicable, the GCSE options and other Key Stage 4 qualifications, or other future qualifications specified by the Secretary of State, offered by the academy; • If applicable, the names of any phonics or reading schemes in operation for Key Stage 1; • How parents can obtain further information about the academy’s curriculum.

Ofsted Report An academy must publish information about where and how parents (including prospective parents) can access the most recent report about the academy published by the Chief Inspector.

School Performance Tables An academy must publish on its website information about where and how parents can access the School Performance Tables published by the Secretary of State.

i) “% achieving Level 4 or above in reading, writing and maths”; ii) “% making expected progress in reading”, “% making expected progress in writing”, and “% making expected progress in maths”; iii) in relation to reading, “% achieving Level 5 or above” iv) in relation to writing, “% achieving Level 5 or above”; v) in relation to maths, “% achieving Level 5 or above”.

If applicable, the academy’s most recent Key Stage 4 results as published by the Secretary of State in the School Performance Tables: i) “% achieving 5 + A* - C GCSEs (or equivalent) including English and maths GCSEs”; ii) “% achieving the English Baccalaureate”; and iii) “% of pupils making expected progress”.

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Pupil Premium For each academy financial year, an academy must publish on its website information about: • The amount of pupil premium allocation that it will receive during the academy financial year; • What it intends to spend its pupil premium allocation on; • What it spent its pupil premium on in the previous academy financial year; and • The impact the previous year’s pupil premium had on educational attainment.

• The amount of Year 7 literacy and numeracy catch-up premium grant that it will receive during the academy financial year; • What it intends to spend its Year 7 literacy and numeracy catch-up premium on; • What it spent its Year 7 literacy and numeracy catch-up premium on in the previous academy financial year; and • The impact the previous year’s Year 7 literacy and numeracy catch-up premium had on educational attainment, and how that effect was assessed.

Conclusion An academy’s governing body is responsible for ensuring that as well as publishing the information set out in this article, any changes to the information are updated as soon as reasonably practicable on its website. An academy should ensure that its website is reviewed at least annually.

Literacy and Numeracy catch-up premium For each academy financial year, an academy must publish on its website information about:

Contact E: emma.swann@wilsonslaw.com T: 020 7998 0435 / 07741 272801

8 FEATURE

Parental rights in respect of access to information about their children

W Katharine Shaw is a partner in our family team.

hen the relationship between a pupil’s parents becomes acrimonious, parents sometimes attempt to draw the school into their own dispute. Schools should be careful not to be drawn into any point scoring between parents and should instead leave the parents to resolve their differences in private.

Set out below is a summary of the legal position in respect of parents’ right to access information relating to their child, together with some frequently asked questions in this regard.

Right of access to pupil information

Lucy Layet is an associate in our employment and education teams.

Independent schools (which include for these purposes academies) do not fall within the scope of the Pupil Information

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Regulations (which provides parents with a right to request access to or a copy of their child’s educational record within a set timeframe).

Section 7 of the Data Protection Act 1998 (the “DPA”), however, provides ‘data subjects’ with a right (by written request and upon payment of a fee) to be told by the school (as data controller) whether personal data about them is being processed, to be given descriptions of the data and its recipients, and to have the data supplied in an intelligible form.

It is the pupil’s right to access such data.

A person with parental responsibility for a child (see below) may make a data subject access request on behalf of the child.

If the child is mature enough to understand their data subject access rights (which is generally from the age of twelve), the child’s consent should be obtained before the school discloses the data to the person with parental responsibility.

The right to access data under section 7 of the DPA extends to all personal data held by the school about the data subject, so could include informal notes made by a teacher and informal records, not just information held on the pupil’s file.

Please note, however, that certain data is exempt, for example, personal data where disclosure would be likely to cause serious harm to the physical or mental health or condition of the data subject or any

other person, or in certain circumstances information as to whether the data subject is or has been the subject of or may be at risk of child abuse. Caution should also be exercised in respect of data that relates to another individual – redaction may be appropriate in such circumstances.

Parents’ evenings It is generally accepted that any parent (defined by section 576(1) of the Education Act 1996, see below) should be allowed to attend parents’ evening unless the terms of a court order specifically prevent this or it would be likely to cause harm to a pupil or to others (such as staff members) if the school were to allow the parent to attend.

Separate or supervised appointments can be offered to parents if necessary. There is limited recourse for a parent who is refused access to parents’ evening, though if a school acts unreasonably in this regard, it could arguably be acting in breach of its implied duty of care to the pupil.

Annual report Every parent of a pupil in an independent school (which includes academies) is entitled to receive an annual written report in respect of their child (under the Independent School Standards). ‘Parent’ is not defined for these purposes, but is interpreted to be a parent within the meaning of section 576(1) of the Education Act 1996, see below.

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Parent School Contract It is possible that your school’s parent school contract could imply or state certain other contractual obligations in respect of the provision of information to parents. Parents who are not party to the contract, however, should not have any rights in this regard.

FAQs We are a boarding school and a parent has asked that we do not allow her estranged husband access to her child at the school.

The child, however, would like to see her father. What should we do?

The school should encourage the parents to resolve the dispute between them.

If that is not possible, regard should be had to the following: • Whether there is a court order in place restricting access or granting contact; • Whether it is safe and reasonable for the school to allow contact, taking into account, for example, the child’s opinion, the primary carer’s concerns and any safeguarding concerns; • Any terms in the parent school agreement in this regard.

It may, in some circumstances, be appropriate only to allow supervised access.

The mother of a pupil has made a data subject access request on behalf of her child and it has been alleged that she has done so in order to obtain the current address of the father.

How should we respond?

The father’s address would constitute the father’s own personal data.

Therefore, prior to providing it to the mother, you should discuss the request with the father. If he does not want his personal data disclosed, you can redact it (i.e. blank it out) prior to providing the data to the mother.

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Who is a ‘parent’?

Under section 576(1) of the Education Act 1996 a ‘parent’ in relation to a child or young person is defined as: the natural parents of a child, whether they are married or not;

anyone who although not a natural parent has parental responsibility for the child; and any person, who although not a natural parent, has care of a child.

Who has ‘parental responsibility’?

The following individuals have or can acquire parental responsibility: the biological mother;

the father, if he was married to the child’s mother when the child was born or has since married her;

the father, if he was not married to the child’s mother when the child was born but he now has a residence order, a court order which gives him parental responsibility or a formal ‘parental responsibility agreement’ with the mother;

unmarried fathers registered as the child’s father at the time of the birth (in respect of children born after 1 December 2003);

certain other people or bodies in circumstances that fall outside the scope of this article.

Contact E: katharine.shaw@wilsonslaw.com T: 01722 427 541

Contact E: lucy.layet@wilsonslaw.com T: 01722 427 667

12 FEATURE

Do fee-paying independent schools have an obligation to take a pupil’s disability into account when making disciplinary decisions?

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This type of discrimination does not apply to decisions to exclude for behavioural issues and so is not addressed in this article.

Indirect discrimination, which occurs when a policy, criteria or practice (“PCP”) applicable to everyone is shown to put disabled pupils at a disadvantage.

For example, a school has a blanket exclusion policy of “three strikes and you’re out”. The lack of a differentiated behaviour policy means that a disproportionately high number of disabled pupils are being temporarily or permanently excluded.

This type of discrimination is not unlawful if the school can show that the PCP was a “proportionate means of achieving a legitimate aim”.

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

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ee-paying independent schools have a greater degree of freedom in respect of disciplinary issues than maintained schools and academies.

They do not have to follow the exclusions guidance from the Department for Education and can set their own exclusion policies. That said, they do fall within the remit of the Equality Act 2010 (the “Act”) and so must ensure that disciplinary decisions do not breach the provisions of the Act. This article focuses specifically on the obligations of fee-paying independent schools in respect of disabled pupils.

What is discrimination?

Discrimination for these purposes includes: Direct discrimination, which is where a pupil is treated less favourably than another due to their disability.

For example, a school finds out that a pupil has been diagnosed as autistic and immediately excludes him as a result.

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Discrimination arising from disability, which is where a pupil has been treated unfavourably because of a factor arising from their disability.

For example, a pupil suffering from ADHD is often hyperactive and inattentive in class. He is excluded for his behaviour which is connected to his disability.

As above in respect of indirect discrimination, this type of discrimination is not unlawful if the school can show that the treatment is a “proportionate means of achieving a legitimate aim”.

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A failure to make reasonable adjustments. Where a PCP puts a disabled person at a substantial

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14 FEATURE

disadvantage, there is a duty to take reasonable steps to avoid the disadvantage.

Examples of reasonable adjustments are included below. A failure to make reasonable adjustments is unlawful.

A parent of a pupil at an independent school who believes his or her child has been the subject of unlawful disability discrimination may make a claim to the First-tier Tribunal. This process is not only time consuming and potentially expensive, but can also be damaging from a PR perspective.

Disciplinary issues Turning specifically to disciplinary issues, your school’s behaviour and disciplinary policy should set out the following: the standard of behaviour expected of pupils; the school rules; and the disciplinary penalties for breaking the rules. The policy should make clear that breach of the school rules may result in the pupil being excluded. This should be reflected in the parent-school contract.

The Courts recognise the need for schools to exclude pupils in order to maintain

good order and discipline and in order to protect the pupils’ and staff members’ health and safety. Exclusion can, therefore, be a ‘proportionate means of achieving a legitimate aim’ in respect of alleged indirect discrimination and/or discrimination arising from a disability.

It is more common, however, for schools in such circumstances to be found to have breached the requirement to make reasonable adjustments. For example, in the case of The Governing Body of X Endowed Primary School v Mr and Mrs T and The National Autistic Society, a pupil with ADHD was excluded following an incident in which he physically assaulted a staff member. His parents brought proceedings and were successful in only one respect, namely that the school had failed to make reasonable adjustments.

The Tribunal concluded that the following reasonable adjustments should have been made: to enlist the advice and support of the Access to Learning Specialist Team prior to the incident; and to offer specific training on ADHD to staff members who had contact with the pupil.

Examples of potential reasonable adjustments include the following (though whether the adjustment is reasonable depends on the facts): • developing an inclusion strategy; • developing an early intervention

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strategy to assess whether a pupil’s behaviour is a result of unmet learning needs. This will allow the school to differentiate between routine misbehaviour and SEN; • disregarding behaviour which is a direct consequence of the pupil’s disability; • considering alternative, more appropriate punishments which are reasonable in all the circumstances, for example a positive discipline and reward method; • offering existing pastoral support services, one-to-one support and counselling; • where an incident has taken place, helping a pupil to present his/her case fully where their disability might hinder this; • when appropriate, suggest seeking additional support from specialist services;

Steps to take when addressing this type of situation In conclusion, when faced with a disciplinary issue relating to a pupil, you should go through the following thought process:

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Does the pupil have a ‘disability’ within the meaning of the Act? Please note that not all pupils with SEN are disabled for these purposes.

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Is the behaviour linked to the pupil’s disability?

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If the behaviour is linked to the pupil’s disability, are there any ‘reasonable adjustments’ that should be made or should already have been made?

Given the complexities of this type of situation, we recommend you seek legal advice before any decision to exclude is made.

• providing staff training on the pupil’s disability and how to manage his/her behaviour.

When determining what adjustments are ‘reasonable’ a Tribunal would take into account what is said on your school website or in your school’s marketing material in respect of provision for pupils with the relevant disability.

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

16 FEATURE

HR cost savings for schools

Amanda Franklin is an HR consultant in our employment team.

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rying to improve the balance between profit and loss is an unavoidable task for every organisation to work on. In the majority of cases, the largest overhead is staffing.

People cost money to recruit, retain, reward, and manage. It stands to reason that we all want to find ways of saving

money without losing quality. So how can this be achieved? Well, there are many ways. In this article, I will address each stage of the employment process, to see how schools can attract and make the most of their main assets – their staff members – to see where cost savings can be made.

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18 FEATURE

Recruitment Think about how you attract your colleagues in the first place. A school with a good reputation will attract speculative employment enquiries. Networking in the community provides opportunities for your school to be seen as an ‘employment destination’.

Consider ways to improve the efficiency of the recruitment process, such as carrying out initial telephone interviews to ensure that the best people are invited to interview, or making sure you have a pre-agreed interview date in your recruitment advert. Consider how you advertise positions and which means of advertising attract the best recruits.

Is your website attracting speculative enquiries or does it need to be updated?

Recruitment and the associated administration that goes with it can be

highly labour intensive, but there are ways to improve efficiency. See below in respect of adapting administrative processes and using HR software to this end.

Managing the start of the employment relationship When a new colleague joins the team, it’s important to manage and support them closely in the early stages. That can be easier said than done when one considers all the other demands on time.

However, taking some time to ensure that new starters really get a good induction, ensuring that they are fully aware of what’s expected of them, by when, and with what support, will pay dividends in avoiding misunderstandings later down the line. Good communication during the induction or probation period mitigates the risks of either party failing to meet the desired expectations.

Deal with issues as they arise If expectations aren’t being met for any reason, the key is to take positive action.

It’s always harder retrospectively to correct issues or behaviours that have become ‘the norm’. Lengthy delays around tackling an issue also make it more difficult for the individual to adapt, even if they have a strong desire to do so.

Being clear in your requirements is vital to any performance related discussion.

With performance related pay becoming

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a hot topic, these conversations will become all the more crucial.

Any performance issues that cannot be resolved with coaching and mentoring should be dealt with more formally using the school’s policies and procedures, ideally within the first year of employment (or within the first two years of employment if the employment commenced on or after 6 April 2012).

Continuing to employ a poorly performing member of staff is a drain on the school’s resources and can be demoralising for other staff members.

If there is a change in the requirement for a particular position, do not avoid the issue. A fair redundancy process takes time, so take advice on the process sooner rather than later to avoid costly breaches of the law.

Support staff Let’s not forget that there are many other advantages of good quality discussions.

They are a vital way of monitoring the wellbeing of the workforce.

Stress levels can fluctuate, so ensuring steps are taken to tackle stress triggers in a timely manner will help mitigate the risk of long term absence.

Additionally, it’s imperative to be actively

supporting the development of your staff, transitioning them from one role to another, ensuring their skills are being utilised, that they have some autonomy and are being challenged. Studies have shown that these are the key ways to keep engagement levels high. High engagement leads to a successful team and a prosperous bottom line.

Last but not least…

Consider when you last gave your staffing processes an overhaul, to see where efficiencies can be made.

For example, what administrative tasks could be simplified or alleviated by a change in school process? What jobs currently being performed by senior members of staff, such as the school bursar, could be carried out instead by an administrative assistant? A piece of HR software (such as Wilsons HR Online) can also save a lot of time when trying to monitor annual leave, personnel records, absence management tracking and career progression within your school.

Contact E: amanda.franklin@wilsonslaw.com T: 01722 427 568

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Effective performance management in schools

Michael Dennison is a senior education advisor at Mouchel.

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n many schools and academies the process of raising standards and improving the quality of teaching has been traditionally regarded as separate from appraisal and performance management.

Head teachers and governors often have inadequate evidence when it comes to driving through performance improvement or agreeing pay progression. In its most recent legislation, the Department for Education (DfE) has deliberately linked the outcomes of

performance management (now termed ‘Appraisal’) with the awards of pay progression.

Rather than regarding DfE requirements as an obstacle to be negotiated between HR and unions, at Mouchel we argue that clear accountability for performance improvement is best owned at every level within the school and should not merely be a top-down process.

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It is only when every teacher understands the criteria by which quality judgements are made (and seeks to implement them daily in the classroom) that pupils will progress and teaching will improve.

Appraisal and Pay Following consultation, the DfE has set out its intentions regarding teachers’ appraisal and pay in two key documents: The Education (School Teachers’ Appraisal) (England) Regulations 2012 and School Teachers’ Pay and Conditions Document 2013. The documents incorporate some significant changes.

In particular, they establish a clear link between the awarding of annual pay progression and appraisal outcomes.

The appraisal regulations state that teacher performance is to be assessed against relevant Teachers’ Standards; that clear (SMART) objectives will need to be established between appraiser and appraisee and that the three hour limit on classroom observation has been abolished.

These regulations apply to teachers in all maintained schools but not to academies, free schools, other independents or sixth form colleges. However, in our experience, most of the Trusts

or Governors of the latter schools have either fully or partially incorporated elements of the DfE appraisal regulations.

Equally, the School Teachers’ Pay and Conditions Document 2013 (STPCD) applies to maintained schools but not necessarily to academies, free schools, other independents or sixth form colleges.

The STPCD states that the decision whether to award pay progression must be related to the teacher’s performance through the appraisal process. There is no longer to be an automatic pay progression. The DfE has even introduced the notion that performance which exceeds the agreed objectives could be rewarded with greater pay progression.

Effective performance management Effective management begins with absolute clarity about aspects of performance which every staff member is responsible for improving. This is outlined in the job description and should be regularly reviewed in line management and appraisal meetings.

The classroom teacher is responsible for the best possible progress of all pupils achieved through good or outstanding lessons.

Middle leaders are responsible for delivering the same outcomes for an aspect of the academic or pastoral curriculum through a team of teachers or support staff.

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Senior leaders are responsible for quality assurance and ensuring the school’s strategic objectives are achieved and head teachers and governors are responsible for setting strategic objectives and ensuring that a robust ‘accountability food-chain’ is in place to deliver the required improvements.

If, for example, it is identified that improving literacy is a school priority, every member of staff knows their role in this strategic objective and will be held to account through regular performance management and appraisal reviews.

This avoids the common mistake that improving literacy or other whole-school priority is the exclusive responsibility of an individual or dedicated team.

assessment of performance improvement – or lack of it – uses the same criteria and data that Ofsted inspectors will use.

Robust self-evaluation leading to improvement planning ensures that school leaders are accountable for their own performance and less subject to the vicissitudes of an external inspection or review team.

Equally, self-evaluation means ‘what it says on the tin’. It is not a top-down process in which one layer of leadership assesses or inspects the performance of the next layer but rather an on-going self review at all levels using agreed criteria and data.

Thus, classroom teachers may not need to understand all the details of the RAISEonline progress measures but they do need to be accountable to their team leader for their own pupils’ assessment and progress data.

Self-evaluation at all levels and owning the data Strong and successful schools do not wait for an Ofsted inspection to tell them what their strengths and weaknesses are; they identify these through forensic self-evaluation based on Ofsted’s criteria.

This does not mean that Ofsted directs the school’s priorities; simply that the

This requires an understanding of and engagement with performance measures of behaviour, progress etc which soon become intuitive and second-nature at all levels.

Evidence based judgements and performance criteria Self-evaluation also requires internal judgements to be made on the quality of teaching and leadership. In appraisal the DfE requires that these relate to national teachers’ and leadership standards.

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In our experience, it is more effective to use Ofsted’s criteria for good and outstanding teaching and leadership.

In this way there is alignment with a national assessment regime, use of similar data and a common vocabulary for improvement measures. There must be internal agreement on the school’s performance measurements, whether they are Ofsted’s, the Trust’s, the school’s own or a combination of all of those.

If the school has encouraged a culture of open debate about challenges and shared approaches to performance improvement, peer and line management reviews become less contentious. Individual teachers facing specific challenges can be supported through professional development, observation of outstanding practice or self-help networks of practitioners working in related aspects of school improvement.

In making internal judgements on performance, it is essential that they are based on evidence using agreed quality criteria and accepted performance data.

It reduces the likelihood of dispute if both sides in any performance review are making judgements based on the same data and criteria.

The process of establishing SMART targets for improvement, observation of performance using agreed criteria and data, identification of strengths and areas for development and continuing professional support contributes significantly to overall and individual uplift in performance. This should be underpinned by reviews of progress at regular intervals so that small step changes in performance can be monitored and addressed.

Bringing together appraisal and effective performance management School improvement can only take place through effective performance management. Once the school has identified its strengths and weaknesses through robust self-evaluation which permeates all levels of leadership, it will be in a position to identify the three or four absolute priorities to be addressed in the improvement plan.

It is then a short step to ensuring targets and objectives are distributed appropriately and that every member of staff understands their contribution and for which elements of performance improvement they are accountable.

A spin-off benefit of this performance management process is that the same evidence and performance measures can be used for the statutory appraisal process and recorded formally in the annual appraisal report.

Contact E: michael.dennison@mouchel.com

24 UPCOMING EVENTS

Bespoke training

Academies Conference Spring Term 2014 We will be holding our next Academies Conference on Friday 24 January 2014 where we will be providing an update on education law and considering ways in which schools may work together in partnership. This will include examining the collaborative models for schools that are either converting as part of an academy group or once established as an academy are forming academy chains.

We regularly provide schools with bespoke training, for example, in respect of governor duties, performance related pay, and effective performance management.

Please contact Lucy Layet at lucy.layet@wilsonslaw.com (or 01722 427 667) to discuss your requirements.

Friday 24 January 2014 10.00 - 14.40 Holland Park Academy London W8 7AF Register your attendance today: call 01722 427 649 or email register@wilsonslaw.com

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.