Wilsons - Schools Newsletter - Summer Term 2014

Schools Newsletter Summer Term 2014

2 FOREWORD

Welcome to the summer edition of our schools newsletter

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

In this edition, Lucy Layet considers how best to respond to allegations of historic abuse against current staff members, Emma Swann summarises restrictions regarding exclusions from maintained schools and academies, in our guest article Michael Reidy (partner at Independent Financial Solutions) warns Heads about recent changes to pensions legislation, Rupert Wilkinson addresses inheritance tax considerations in the context of grandparents’ payment of school fees, and Sophia Akram examines the duty of schools to refer teacher misconduct to the NCTL. We have this year introduced a one-week work experience programme for sixth formers, to take place towards the end of June. Though places for this year have now been filled, if you would be interested in a pupil from your school participating next year, please do let me know.

I am always interested in discussing issues currently facing the education sector, so do get in touch if you have a particular issue you would like to discuss; this also helps us to decide which topics to cover in the next newsletter.

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

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This edition

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Responding to allegations Read more >

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G randparents’ payment of school fees Read more >

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xclusions from E maintained schools and academies Read more >

R eferrals to the NCTL Read more >

Heads beware!

Read more >

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ick Pay for S Teachers and Support Staff Read more >

4 FEATURE

Responding to allegations of historic abuse involving current staff members

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hen responding to allegations of historic abuse against current staff members, schools must remember that they not only owe a duty of care to pupils, but they also owe a duty of care to staff members.

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

Dismissal of the staff member concerned will only be fair if it is considered by a Tribunal to be ‘fair in all the circumstances’. The Tribunal will consider whether the employer’s decision to dismiss was within ‘the range of

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reasonable responses’. Each case will turn on its particular facts.

In the recent case of A v Z, the EAT held that dismissal of a caretaker for allegations of historic child abuse was unfair, as set out below.

This case concerned a caretaker in a primary school in respect of whom an allegation was made concerning alleged child abuse occurring prior to and outside of the employment. When the allegation was made, the caretaker was suspended

from work. After nearly a year, the caretaker had still not been convicted and the police were still engaged in fact finding. The school dismissed the caretaker as the school’s trust and confidence in him had broken down.

The record of the decision noted that the allegation “created a serious safeguarding issue for the school and even if the employee were to be completely exonerated the trust and confidence in him has been eroded and there would always be an element of doubt”.

6 FEATURE

The EAT acknowledged the difficulty faced by schools in this type of situation: “The duty of such an employer concerned with serving children is first and foremost to those children, but that does not remove its responsibility to its employees. Every case will turn on its facts.” An allegation of historic abuse could amount to ‘some other substantial reason’ for dismissal (i.e. a potentially fair reason for dismissal), depending on the facts of the case. To do so, the facts must be such as to justify dismissal. In this case, the EAT held that they did not.

This was in part due to the fact that the police’s decision regarding whether to pursue the case was expected imminently and it seemed likely that the case would be dropped; rather than waiting for the police’s decision, however, the school went ahead and dismissed the caretaker.

This case highlights the need for employers to consider the facts of the particular case carefully prior to deciding to dismiss. Whatever pressure the school may feel under from third parties, such as parents, the school should avoid automatically dismissing in response to allegations of historic abuse. Such a blanket response is likely to lead to a claim for (and finding of) unfair dismissal. Instead, the school should consider all the facts of the case, such as the nature of the allegations, the findings

of the police, the recommendations of the LADO, and the explanation of the staff member. It may be necessary to suspend the employee (and the process) until the police has completed its investigations. Suspensions should not, however, be an automatic response.

Helpful guidance in this regard is included in the DfE’s guidance entitled ‘Dealing with allegations of abuse against teachers and other staff’.

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

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Checklist of points to consider when responding to allegations of historic child abuse against current staff members • Involve the LADO without delay.

• Consider whether suspension would be appropriate in the circumstances, taking into account the DfE’s guidance entitled ‘Dealing with allegations of abuse against teachers and other staff’.

• Make sure the matter is kept confidential and guard against unwanted publicity - reporting restrictions apply to protect the accused.

• Continue with your investigations, even if the staff member resigns.

• Avoid the use of settlement agreements that agree a form of reference and seek to restrict your ability to continue with your investigations into the allegations.

• Avoid a blanket rule in respect of your response; instead consider all of the facts of the case.

• If you dismiss the member of staff, or if you would have dismissed the member of staff had they not resigned first, consider whether: • your duty to refer to the DBS is triggered; and/or • your duty to refer to the National College for Teaching and Leadership is triggered.

• Seek legal advice!

8 FEATURE

Exclusions from maintained schools and academies

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

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tatutory DfE guidance entitled ‘Exclusion from maintained schools, academies and pupil referral units’ governs exclusions in those sectors.

The guidance does not apply to independent fee paying schools or sixth form colleges which have separate exclusion procedures.

The Government views exclusion as a sanction to be used only when it is warranted on disciplinary grounds.

Permanent exclusion should only be used as a last resort in response to a serious

breach or persistent breaches of the school’s behaviour policy and where allowing the pupil to remain in school would seriously harm the education or welfare of others. In light of this, a school should seek to intervene early in order to reduce the need for subsequent exclusion. Disruptive behaviour can be an indication of unmet needs. If this is the case, the school should attempt to identify if there are any causal factors, such as special education needs (SEN) and provide support where possible.

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When it comes to excluding a pupil, there are a number of steps that need to be followed in order to ensure that the decision is the correct one. The initial decision to exclude a pupil is one for the Head teacher to make. A pupil can be excluded for one or more fixed periods (up to a maximum of 45 school days in an academic year) or permanently. Before taking a decision, it is important for the Head teacher to give pupils the opportunity to present their case. When establishing the facts the Head teacher must apply the civil standard of proof to decide whether on the “balance of probabilities� it is more likely than not that a fact is true. Head teachers should take into account any contributing factors that are identified, such as bullying. A decision to exclude must be lawful, reasonable, fair and proportionate. Some pupils have disproportionately higher rates of exclusion. Head teachers should as far as possible avoid excluding permanently any pupil with a statement of SEN or a looked after child.

If the Head teacher does ultimately decide that exclusion is the correct course of action then they must notify the

parents of the pupil in writing giving details of the exclusion and the right to make representations. The Head teacher must also immediately notify the governing body and the local authority of any permanent exclusions, exclusions for more than 5 school days in a term, and exclusions that result in a pupil missing a public exam.

The governing body has a duty to consider parents’ representations about an exclusion. The role of the governing body is to consider the interests and the circumstances of the excluded pupil and have regard to the interests of other pupils and people working at the school.

In doing so it must consider representations made by parents and the Head teacher. When considering the exclusion, the governing body must consider whether the decision was lawful, reasonable and procedurally fair.

Once it has considered the decision, the governing body can either uphold the exclusion or direct the head teacher to reinstate the pupil. If the governing body upholds the exclusion, it must then notify parents of its decision as well as their right to have the decision reviewed by an independent review panel.

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If the parents decide to apply for an independent review, the local authority or academy trust must arrange the panel at their own expense. This panel will be made of 3 or 5 members, consisting of a lay member to chair the panel, a school governor and a head teacher.

Furthermore, a clerk may be appointed to ensure that the panel is administered correctly. In addition to these members, a parent may request that a SEN expert attends the review to advise the panel on the school’s SEN policies and their application.

Following the review, the panel can decide to uphold the exclusion decision, recommend that the governing body reconsider its decision, or quash the decision and direct the body to consider the exclusion again. It can quash a decision based on the principles of judicial review: illegality, irrationality and procedural impropriety. If the panel directs that the governing body reconsider their decision, they have to

decide whether to reinstate the pupil or uphold the exclusion. If the governing body decides not to offer to reinstate the pupil, the panel can order the school to pay ÂŁ4,000 to the local authority.

Where the criteria for quashing a decision have not been met the panel should consider whether to recommend that a governing body reconsider its decision not to reinstate the pupil. This option should be used where evidence or procedural flaws have been identified that do not meet the criteria for quashing the decision but which the panel believe justify a reconsideration of the governing body’s decision. In all other cases the panel should uphold the exclusion.

Contact E: emma.swann@wilsonslaw.com T: 020 7998 0345

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Heads beware!

Changes to pension allowances introduced with effect from 6 April 2014

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Michael Reidy is a partner at Independent Financial Solutions.

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ith effect from 6 April 2014, two important changes to pension legislation took place, which are likely to catch out unwary Heads.

Lifetime Allowance The standard lifetime allowance (LTA) is the maximum amount of pension saving an individual can have without incurring a tax charge. The LTA applies to all pension benefits excluding the State pension and reduced from £1.5 million to £1.25 million with effect from 6 April 2014.

Any pension in excess of the LTA will be subject to a lifetime allowance tax charge, which is 55% if the benefits in excess are taken as a lump sum, or 25% if they are taken as income.

Under a money purchase (MP) scheme this is simply the value of the contributions paid during the year.

However, under a defined benefit (DB) scheme (such as the Teachers’ Pension Scheme) it is the increase in the value of a member’s pension during the year, which could be significantly higher than the contributions actually paid.

Individuals are subject to a tax charge on the amount of any contribution paid, or deemed to be paid, in excess of the annual allowance each year. The tax charge will be at the member’s marginal rate of tax.

Heads beware!

The above changes are likely to be relevant to many Heads, whose pension value may well exceed the above values.

Steps should be taken now to address the risk. Please do not hesitate to contact me with any queries you may have in this regard.

Annual Allowance The annual allowance is the maximum amount of tax relieved pension savings that can be made each year to all pension arrangements for an individual.

The current allowance has now (with effect from 6 April 2014) reduced from £50,000 to £40,000.

Contact E: mike.reidy@ifsnet.co.uk T: 01243 432430

14 FEATURE

Rupert Wilkinson is an associate in our private client teams.

Grandparents’ payment of school fees – inheritance tax considerations

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arents who are bearing the burden of school fees are occasionally fortunate enough to find that grandparents are willing and able to help with school fees. If parents find themselves in this position, there are a number of inheritance tax considerations worth taking into account.

The default position is that for inheritance tax purposes the payment of school fees by a grandparent is treated as a gift made by the paying grandparent. This gift is a potentially exempt transfer, so if the grandparent survives the gift by seven years, it will not be taken into account for inheritance tax purposes on their death.

There is also a £3,000 annual exemption from inheritance tax for each grandparent, so two grandparents can together pay up to £6,000 of school fees each year with no inheritance tax consequences. If a previous year’s annual exemption has not been used, that is also available. Although the £3,000 may not seem much, if £6,000 is given each year for the education of a grandchild between the ages of 4 and 18, the total given would be £84,000.

A further exemption applies where the school fees qualify as normal expenditure out of the grandparents’ income. In essence, if a grandparent has surplus income and can pay school fees in whole or part without reducing their standard of living, the payment is not

treated as a transfer out of their estate, and it is not called back into the calculation of inheritance tax on their death within seven years of the payment.

However, when we submit inheritance tax accounts for clients, HMRC like to see very thorough proof before they accept claims for this exemption.

Useful evidence includes:

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ontracts with a school in which C grandparents contract to pay school fees in whole or in part;

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covenant to pay a certain amount A to a parent year on year – with the parent then using that money to meet school fees for which they have contracted; and

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ocuments showing annual D expenditure and income which help prove there is a surplus, and that payment of school fees did not reduce the grandparents’ standard of living.

With the Government’s unending need for revenue, and with tax planning under pressure, the use of recognised exemptions from inheritance tax has become all the more valuable to grandparents seeking to help with school fees.

Contact E: rupert.wilkinson@wilsonslaw.com T: 01722 427 602

16 FEATURE

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Referrals to the NCTL

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chools have a legal duty to consider whether to refer a case of teacher misconduct to the National College for Teaching & Leadership (“the NCTL”) in the following circumstances: • When they have dismissed a teacher for misconduct; or • When they would have dismissed a teacher for misconduct had the teacher not resigned first.

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

Referral is appropriate if the alleged misconduct is “so serious that it warrants a decision on whether the teacher should be prevented from teaching again”. Cases of less serious misconduct, and cases of incompetence, should not be referred.

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When deciding whether or not a case is “so serious that it warrants a decision on whether the teacher should be prevented from teaching again”, schools should refer to the NCTL’s advice, entitled ‘Teacher misconduct: the prohibition of teachers – Advice on factors relating to decisions leading to the prohibition of teachers from the teaching profession’, which was published in January of this year. The guidance is available on the DfE website. It clarifies (amongst other things) the DfE’s expectation that any sexual misconduct and any criminal conviction or caution involving indecent images of children is likely to lead to prohibition, save only in the most exceptional cases.

There have been various cases recently in which the NCTL has found that the teacher concerned should be banned from teaching for life. Some of these cases are summarised below.

Adam Walker During a St Georges Day parade, three boys directed verbal abuse towards Mr Walker before cycling away. Mr Walker proceeded to chase them very closely in his car. Once the boys had stopped, Mr Walker slashed the tyres on their bikes with a Stanley knife and verbally abused them, with the knife still in his hand. Mr Walker received a suspended prison sentence for 18 months. The recommendation from the NCTL was a

prohibition order with a review after 2 years, but the decision by the Secretary of State was to impose a prohibition order without any possibility of review.

Mr Walker was an active member of the BNP and believed there had been improper interference in the process by Mr Gove personally. Mr Walker later brought a claim in the High Court, but the Judge ruled there was “no evidence” that Mr Gove had intervened in the case and he did not find that the life ban was unfair.

Richard McHale Mr McHale, a teacher, was registered for employment with Randstad Education for supply teaching work. The details on his CV differed from a CV he had previously submitted to the company in respect of dates, his teaching experience and the schools at which he claimed to have taught. Mr McHale said he had “panicked and made a grave error of judgment” and claimed he had lost his records in Vietnam. Mr McHale had previously received a reprimand from the General Teaching Council for similar conduct back in 2009.

The NCTL found that he had “fallen very far short of the standards of conduct the public expect of teachers and damaged

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the reputation of the profession”. The NCTL recommended imposing a prohibition order with the opportunity for it to be set aside after 5 years. The Secretary of State, however, decided that Mr McHale had “not learned his lesson” and that he should be prohibited from teaching indefinitely.

Christopher Hood Mr Hood was the Head of Hillside First School and also the school’s Designated Teacher for Child Protection. Teachers and parents had raised numerous concerns to Mr Hood about Mr Leat, a teacher at the school. The reports included that Mr Leat was “too tactile” with female pupils and that there was “physical contact in terms of hugging, tickling, stroking of the pupil’s legs and back”. Mr Leat was later jailed in 2011 after admitting 36 sexual offences at Bristol Crown Court.

The NCTL found that Mr Hood had not taken appropriate action in response to safeguarding incidents that had been brought to his attention and, as a consequence, he was found not to have created a safe environment for children at the school. He was summarily dismissed on the grounds of misconduct and was later banned indefinitely from working with children by the NCTL.

Conclusion Given the potentially devastating impact that a life-time ban on teaching can have on the teacher concerned, many schools have historically been wary of referring cases of misconduct. This culture appears to have changed over recent years, perhaps in response to high profile child abuse cases; there has been a dramatic rise in the number of teachers being permanently banned from teaching in the last couple of years.

Schools should not forget that the above duty to refer is in addition to the separate duty in some circumstances to refer individuals to the Disclosure and Barring Service and/or to comply with the statutory guidance entitled ‘Dealing with Allegations of Abuse against Teachers and other Staff’.

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

20 FEATURE

Sick Pay for Teachers and Support Staff

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e are preparing an article regarding the above for a future edition of our newsletter and will shortly be inviting you to participate in an anonymous survey in respect of the calculation and payment of sick pay for teachers and support staff.

If you would prefer not to take part in this survey please email marketing@wilsonslaw.com stating NO SURVEY in the subject line.

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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.