Wilsons - Schools Newsletter - Autumn 2013

Schools Newsletter Autumn Term Newsletter 2013

2 FOREWORD

Welcome to the first digital-only version of our schools newsletter. We welcome both your feedback on the new format (positive and negative!) and your suggestions on any further topics you would like us to address.

Stephen Oxley is an employment solicitor and head of the education team.

In this edition Gillian Fletcher considers the latest instalment in the ongoing public benefit saga, Emma Swann looks at admissions in academies and maintained schools, Andrew Radice focuses on salary sacrifice schemes in independent schools, Lucy Layet addresses some of the misconceptions surrounding ‘fit notes’ and, in our two guest articles, Mike Horsfield of Zurich writes on disaster recovery and Gordon Aitken, a freelance education consultant, writes on University Technical Colleges.

We hope that you are returning to school refreshed from your holidays and we look forward to welcoming as many of you as possible to the first of our schools seminars to take place in our new offices – please see the final page for further detail.

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

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This edition

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alary sacrifice schemes S Read more >

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chool Admissions S Read more >

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Fit notes – What they are and how to make the best use of them Read more >

lanning for P the unexpected Read more >

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P ublic Benefit Read more >

oes your area D need a University Technical College?

Read more >

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Salary sacrifice schemes in independent schools

HMRC accepts reductions of up to 85 percent of the full rate of fees charged to other parents without any income tax being payable.

Andrew Radice is a consultant in the Wilsons UK and International Tax & Trusts team.

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eachers employed in the independent sector often benefit from a substantial reduction in the school fees they pay for their children at the school in which they are employed.

For income tax purposes the benefit to the employee is the marginal cost to the school of educating an additional child.

HMRC have accepted a value of 15 percent of the full rate of fees payable to be the marginal cost to the school of educating an additional child. This means that

Some schools are also now considering offering teachers a salary sacrifice arrangement in respect of the amount of school fees payable. Under such an arrangement, the agreed amount is deducted from the teacher’s gross salary, which is beneficial to both teacher and school alike (the teacher’s income tax and National Insurance contributions decrease, as do the school’s National Insurance contributions). The teacher then receives the non-cash benefit of a reduction in school fees payable.

This type of salary sacrifice arrangement can be offered either as a stand-alone benefit, or in conjunction with the more common reduced fees offered to teachers in the independent sector.

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The main conditions for such a salary sacrifice scheme to succeed are:

salary in accordance with the principle established in Heaton v Bell.

• T he teacher and school need to agree to the variation of the employment contract before the scheme is implemented – if this is not done before the first payment under the new arrangement, the teacher will still be taxable on the old (higher) salary although the new lower amount will have been paid.

HMRC have stated that if the variation to the original employment contract lasts for more than one year, they will not seek to apply the Heaton v Bell principle. It is understood that HMRC will allow an opt out before a year has elapsed in certain circumstances involving major lifestyle changes for the employee, such as marriage and divorce.

• U nder the new arrangement, the teacher genuinely receives a reduced salary and a benefit – in other words, the employee is not merely asking the school to apply part of his cash remuneration in payment of fees.

A key element of any employment benefit is that it should not be readily convertible into cash, and if the teacher is able to give up the benefit of the reduced fees and return to the earlier level of salary, the benefit constitutes “money’s worth” and the teacher will be taxable on the higher

While the tax and National Insurance savings can be considerable, schools and their employees should bear in mind that a reduction in salary may have an effect on statutory sick pay, statutory maternity pay and retirement benefits.

Contact E: andrew.radice@wilsonslaw.com T: 01722 427 501

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Fit notes – What they are and how to make the best use of them

Lucy Layet is an associate solicitor in the employment and education team.

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he statement of fitness for work (or ‘fit note’) was introduced in 2010, replacing the old sick notes. They were part of a Government-led project to change the relationship between work and sickness, by focussing on what an employee is able to do, rather than simply signing an employee off work.

This change of focus was reflected in the introduction of a “may be fit for work” option in the fit note. A doctor who ticks that option can then suggest ways to facilitate a return to work, namely, a phased return to work, altered hours, amended duties, and/or workplace adaptations. There is also space for further advice or information, including how the employee’s condition will affect what they do. This information should be used by employers to discuss with the employee their potential return to work.

The Government has this year published new guidance on fit notes for employers and doctors, entitled “Getting the most out of the fit note - GP Guidance” and “Getting the most out of the fit note - Guidance for Employers and

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Managers”, which can be accessed on the DWP website. The key messages are as follows: • The GP assessment of the employee’s fitness for work should be general and not job-specific.

• If a GP assesses that an employee’s fitness for work is not impaired by a health condition, the employee is fit for work and should not be issued with a fit note. Therefore, an employer cannot require a GP to sign an employee back to work. If an employer is in any doubt about an employee being fit for work, the employer could ask the employee to consent to examination by the company’s own medical adviser at the company’s expense.

• The employee is free to return to work before the end of a fit note. The guidance states that “This will not breach the employer’s liability compulsory insurance, providing a suitable risk assessment has taken place if required”. In other words, if an employee has been signed off work for two weeks, but would like to return to work before the end of the two weeks, he or she should be allowed to do so, subject to a suitable risk assessment.

• The fit note is issued to the employee and should be retained by the employee although the employer can take a copy.

• The fit note is not binding on the employer. This means that the employer may gather its own evidence and may give its own evidence precedence, though it must be ready to support its decision in the event of challenge.

Some common queries…

If an employee who is facing disciplinary proceedings is signed off work with stress, can we proceed with the disciplinary proceedings?

This situation is common and can be very frustrating for employers. The GP in such circumstances should focus on whether the employee actually has a mental illness. If the employee is upset and stressed but does not have a mental illness, the employee should not be signed off work.

If an employee in such circumstances is signed off work, you should consider the length of the absence. If the absence is for only a couple of weeks, it may be appropriate to delay the proceedings until the employee returns to work. If the absence is for a longer period or if there are other factors that require you to address an issue more urgently, you should enquire whether the employee is fit to engage in the disciplinary proceedings. If in doubt, you could seek medical advice as to the employee’s mental state and whether attendance at a

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disciplinary hearing is likely to cause serious deterioration in the employee’s mental or physical health. You should also consider alternative ways to conduct the disciplinary hearing in order to reduce the stress levels of the employee, for example, conducting the hearing by telephone or at a neutral place near the employee’s home, or inviting the employee to submit written submissions and holding the hearing in their absence (this should be a last resort).

Can we require a doctor’s note for any period of absence?

An employer cannot insist on a GP providing a fit note for the first seven days of sickness absence. If, however, you would like to crack down on shorter term illnesses you may choose to meet the cost of a GP providing some other form of medical evidence as to an employee’s condition. You should also use return to work interviews to discuss the reason for the absence.

changes, you should treat the fit note as if it says that your employee is not fit for work. The employee does not need a new fit note from the doctor to confirm this.

The employee should then be paid sick pay in accordance with the applicable contractual or statutory sick pay.

Even though there is no obligation to accept part performance of an employee’s contract, it is generally accepted to be good practice to help rehabilitate the employee.

Furthermore, if the employee is disabled under the Equality Act 2010, the employer may be under a duty to make reasonable adjustments, which could include a period of light duties or reduced hours.

If an employee is not capable of carrying out their contractual work but is capable of carrying out other work, do we have to allow him to come back to work?

In this situation, the GP should have ticked the ‘may be fit for work’ box. This should prompt a discussion between the employer and the employee as to what changes could be made to facilitate the employee’s return to work. If you cannot agree on the

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

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Public Administration Select Committee and Public Benefit Gillian Fletcher is a partner in the charity team.

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he Public Administration Select Committee (“PASC”) has published its report on the role of the Charity Commission and public benefit. The PASC conducted post legislative scrutiny of the Charities Act 2006 (“the Act”) and concluded that, while the Act has been broadly welcomed by the sector, it is critically flawed on the issue of public benefit. In particular, the PASC criticised the stated removal of the presumption of public benefit and the

requirement for the Charity Commission to produce guidance on the public benefit requirement. The report also criticises the way in which the Charity Commission has interpreted the law in this area.

The Act imposed a number of statutory objectives on the Charity Commission including an objective for it to promote awareness and understanding of the operation of the public benefit requirement.

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The Act required the Commission to issue guidance in pursuance of this objective. The Commission’s guidance has been the subject of much debate and controversy. The Act did not define “public benefit”; it simply confirmed that a reference to “public benefit” in the Act is a reference to that term as it is understood in charity law. It has been argued that the Commission’s interpretation of the Act went against what Parliament intended when the Act was passed. It has also been argued that its interpretation of existing case law on public benefit, particularly in relation to fee-charging charities, is flawed.

Following referrals to the Upper Tribunal, the Commission withdrew its guidance on public benefit and fee charging. New guidance has been prepared and the Charity Commission is now in the process of considering and analysing responses to its consultation on the revised guidance. The new guidance will take account of the Upper Tribunal’s ruling which stated that in all cases of fee charging, independent schools with charitable status there must be more than de minimis or token benefits for the poor, but that it was for the trustees of a charitable independent school to decide what was appropriate in their particular circumstances, not the Charity Commission.

The Charity Commission expects to publish its revised guidance later this year. However, if the recommendations made by the PASC

are adopted by Parliament, then the question of public benefit may be far from being resolved.

The PASC has recommended that the removal of the presumption of public benefit in the Act should be repealed, along with the Charity Commission’s statutory “public benefit” objective. The PASC takes the view that “it is for Parliament to resolve the issues of the criteria for charitable status and public benefit, not the Charity Commission” but does not expressly recommend that there should be a statutory definition of what “public benefit” means.

The report highlights the complexity of the legal disputes relating to the Commission’s interpretation of public benefit and the controversial and political nature of decisions concerning charitable status. The 2006 Act left an ambiguity as to the definition of public benefit and the Commission with an obligation to provide that definition in its guidance, but with little indication about how it should be interpreted. Any steps to remove the uncertainties created by the Act would surely be welcomed by both the Charity Commission and the sector. Whether Parliament accepts the recommendations made by the PASC remains to be seen.

Contact E: gillian.fletcher@wilsonslaw.com T: 020 7998 0422

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School Admissions

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

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he School Admissions Code published by the Department for Education in February 2012 applies to the admission authorities for maintained schools and academies.

Admission authorities must determine their admission arrangements each year in compliance with the Code. The admission authority for community and voluntary controlled schools is the local authority; for foundation and voluntary aided schools it is the governing body; and for academies it is the academy trust. Any schools currently considering making changes to their admission arrangements should be aware that consultation must take place for a minimum of eight weeks between the 1st November 2013 and the 1st March 2014.

Schools should ensure that consultation about any changes to admission arrangements is carried out with parents, other local admission authorities and the

local authority. Church of England schools must also consult with their Diocese about their proposed admission arrangements before any public consultation. As part of the Coalition Government’s plans to encourage the expansion of popular schools, foundation, voluntary aided schools and academies are not required to consult on proposals to maintain or increase their published admission number.

Admission authorities are required to determine their admission arrangements by the 15th April 2014. Any challenge to a school’s admission arrangements must be made to the Schools Adjudicator by the 30th June 2014. If the Schools Adjudicator considers that admission arrangements are unlawful, admission authorities must alter their arrangements.

All schools should have in place oversubscription criteria. If a school is oversubscribed, applications must be ranked in order against its published oversubscription criteria. The criteria must be reasonable, clear, objective and procedurally fair. Any children that have a statement of SEN that names the school must be admitted. Highest priority must then be given to looked after children and previously looked after children.

Admission arrangements should always include an effective, clear and fair tie-breaker and many schools will use distance as a tie-breaker.

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The Code sets out oversubscription criteria that must not be used by admission authorities. Schools can not rank applications based on the following criteria: • First preference first; • Interviews; • Reports about a child’s past behaviour; or • Practical or financial support parents may give a school.

Faith schools may allocate places by reference to their designated religion but must have regard to guidance from their religious authority, such as a Church of England Diocesan Board of Education, when determining oversubscription criteria. Faith schools must also consult with their religious authority when deciding how membership or practice of their faith is to be demonstrated.

It is important that schools are aware of changes made in the new Code to allow priority to be given to children of staff employed with the school for two or more years or to children of staff recruited to fill a post where there is a demonstrable skills shortage. Academies can also give priority to children eligible for the pupil premium.

The most common oversubscription criteria used in school admission arrangements are: • Siblings at the school; • Catchment area; • Distance from the school; • Feeder schools (although, independent schools are not allowed); and • Banding.

If your school is considering changing your admission arrangements and would like advice on the consultation process or determining your new admissions policy, please do contact us.

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

15 Guest ARTICLE

Planning for the unexpected

In recent years the unprecedented rioting and looting witnessed in a number of London boroughs and other towns and city centres over the country caused widespread damage and disorder.

Paul Tombs is Head of Education for Zurich Municipal.

While schools emerged from the riots relatively unscathed, the riots were a stark indication as to the diverse nature of what constitutes a major incident today and a reminder of the need to plan for any eventuality.

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Zurich Municipal has put together some general major incident guidance (which could be called upon in a range of scenarios) to help schools and academies plan and prepare for the unexpected.

General major incident guidance

Business continuity planning is not just for fire, floods and other more typical circumstances. It is also for other incidents, such as an outbreak of disease or large-scale public disorder. It is increasingly important to have robust plans in place that can respond to a whole range of incidents which may affect or interrupt the running of your school.

• Confirm the plan is up to date to reflect any recent operational or staff changes and to recognise that the emergency services may not be able to respond immediately to all incidents.

As a leading insurance and risk management partner to schools and academies across the UK, as well as being a global insurer, Zurich Municipal has a wealth of knowledge and experience of major incidents.

- call out protocol

You may wish to consider the guidance in relation to your own school or academy and its individual requirements but we hope this information will assist you should a fire or other major incident threaten your operation.

Key considerations in pre-incident planning • Ensure your emergency response plan and teams are in place.

• Establish protocol – what constitutes an emergency and who invokes the plan.

• Assign clear roles and responsibilities for:

- calling your insurer and other key parties - managing any media interest - liaising with parents, the local community and other interested school stakeholders - keeping emergency numbers safe and accessible - appointing deputies.

• Stress test the plan – keep it simple and easy to read and use in an emergency.

• Identify where you might host your command centre in the event of an incident and document this in your plans.

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Think about temporary buildings should you suffer property loss.

Key considerations during an incident • Implement your emergency plan with a clear command centre and structure.

• Actively manage the communications channel to staff, parents, students, sponsors/investment partners, suppliers, local community.

• Assess the situation and prioritise next steps.

• Where they are involved, proactively engage with bodies such as the Health & Safety Executive as this will save time in the long run.

• Maintain lines of communication with key stakeholders – for example, local media can be a powerful tool for reaching and updating communities.

• Don’t underestimate the impact and shock on teaching staff and parents – ensure a clear and positive message is delivered in all communications.

Tips

• If full recovery is likely to be over the medium to long term be prepared to bring in additional resource to manage the transition and be realistic in communications to stakeholders.

As soon as the initial impact of the emergency has subsided, focus on damage limitation and recovery. Decisions at this stage will have a significant impact on how well the school recovers.

Key considerations following an incident • Reconvene emergency teams swiftly to discuss and implement forward actions.

• Appoint a single point of contact to manage your claims.

• Contact your insurance company as soon as possible so advice and assistance can be given without delay. Many policy conditions require notifications within seven days.

• Prioritise next steps and keep an actions log.

Contact For more useful information on managing risk, visit Zurich Municipal’s online portal for schools and academies www.riskcurriculum.co.uk or email them at info@zurichmunicipal.com and one of their Risk and Insurance Consultants will call you back.

18 Guest ARTICLE

Does your area need a University Technical College?

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he Government recently confirmed approval of a further 13 University Technical Colleges (UTCs) to open in 2014 or 2015. There are now more than 40 open or preparing to open. Yet UTCs are still not well understood and there is a long way to go to establish a national UTC network and to persuade young people and parents that they should opt for high quality technical education at 14.

First the basics. UTCs are state-funded academies for 14-18 year-olds that combine a strong academic foundation with technical and business skills. They are overseen by a university, driven by employers and specialise in occupational areas that are central to the local economy. Students attend for “business hours� (8.30-5.00 for 40 weeks a year) and learn from industry specialists and

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university experts as well as teachers.

The extra hours/weeks build technical skills alongside, not instead of, a core of GCSEs or A Levels. Young people join at 14 or 16 and UTCs typically recruit from a 20 mile radius.

of young people with good technical skills and good employability. A good application will demonstrate why a UTC is the right solution to that problem. This normally means basing your UTC on a very significant local specialism.

The Government has announced that there will now be two rounds of applications each year for new UTCs, so what do they expect from a good application?

Our South Wiltshire UTC will specialise in Science and Engineering in the context of the defence and protective science industries. We have world class employers in the area but they struggle to get good quality local applicants for skilled jobs and Apprenticeships.

The UTC is sponsored by the University of Southampton and the consortium includes the Army, the Defence Science and Technology Laboratory, QinetiQ, Public Health England, Esterline, Chemring Countermeasures, Terticus Science Park, Wiltshire College and Wiltshire Council.

The first thing they want is a genuine partnership. There must be a University (or college with significant higher education) leading on and validating the curriculum. Secondly there must be real demand and commitment from local employers. For years employers have been accused of criticising state education but doing little to transform it. A UTC application calls their bluff.

Employers must identify the skills and attitudes they want and help design a UTC to deliver these. That can mean providing case studies of business challenges, supplying expert guest lecturers who engage regularly with learners, giving access to specialist equipment supporting extended placements, identifying younger employees to act as mentors and providing business support.

This is not just altruism or corporate social responsibility. This is employers coming together to solve a real problem in the flow

Ideally you should spend a good six months building the labour market justification for a UTC and convincing key employers that it could benefit their organisations. During this time your partnership matures and education and employer specialists develop ownership of the idea and a joint vision of what the UTC will be like. You also gather evidence that young people and their parents will consider switching schools to a high quality UTC.

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If you have done the groundwork, the actual application is not difficult.

There is good help from the Department for Education (www.education.gov.uk/ schools/leadership/typesofschools/ technical) and the Baker Dearing Trust (www.utcolleges.org) which promotes UTCs. You will also find good support from existing and developing UTCs. We needed someone pretty much full time managing the application and I now work full-time project managing preparations for opening. You do get a pre-opening grant from the Department for Education if you are successful but in practice you will need a lot of support in kind (and probably some resources) from your partners. Above all you will need to keep the partnership committed and involved and that is where it helps to have absolute clarity about the structural problem a UTC will solve.

Gordon Aitken is a freelance education consultant currently working full-time as Project Manager for the South Wiltshire Defence Industries UTC. He is writing here in a personal capacity and the views are his own. www.wiltshire-utc.co.uk

22 Upcoming events

Independent Schools Seminar Autumn Term 2013

Academies Conference Spring Term 2014

Our next independent schools seminar, aimed at heads, bursars and governors, will take place in the board room of our Salisbury office on Friday 18th October.

We will be holding our next Academies Conference in January 2014 where we will be providing an update on Education law and considering the ways that 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.

If you are interested in attending, please email register@wilsonslaw.com. Please also forward details of the seminar to anyone else who might be interested in attending.

The seminar will take place in the morning and will be followed by lunch. It will focus among other topics on handling over pushy parents, safeguarding issues, consumer credit and staff accommodation. The lunch will provide you with an opportunity to meet our team and network with decision makers in other schools. We look forward to welcoming you.

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.