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CONTENTS 1-2 Vexatious Requests 3-4 Exclusions 4

Education Bulletin

Academies and Consulting with Your Staff

5-6 Free Schools

Education Law News Autumn 2010

Vexatious Requests The Academies Act has confirmed the Government’s intention to bring Academies within the Freedom of Information Act (FOIA) regime. No timeframe has yet been announced, but when the provisions are in force, academies will doubtless join the growing number of maintained schools facing vexatious requests for information. There is no doubt that the FOIA is a useful tool for the public to obtain information about public bodies that would not otherwise be available. However, it is subject to abuse by a minority of individuals intent on harassing or causing inconvenience to public bodies. Complying with repeated and troublesome requests can be draining and demoralising for all involved, but there is a solution! If a request is “vexatious” or has already been complied with within a reasonable period, there is no requirement to provide the information asked for, and a recent case decided by the Information Rights Tribunal offers further encouragement for those suffering these requests.

What is vexatious? There is no definition of the term “vexatious” in the Act itself, but the Tribunal has referred to the normal usage of the word to describe activity that is likely to cause distress or irritation,

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

literally to vex a person to whom it is directed. In the Hossak case the Tribunal stated that “for the request to be vexatious there must be no proper or justified cause for it.”

which is relevant, rather than the attributes of the individual. When deciding if a particular request is vexatious, the background history between the applicant and the public authority (i.e. the school) should be considered, as the context of the request may

the effect of the request is vexatious and not whether the

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

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

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

Significantly, therefore, the exemption is concerned with whether


Vexatious Requests (continued)

to reopen issues which had been disputed several times before would suggest it is vexatious.

General principles The Information Commissioner (ICO) has produced guidance on the meaning of vexatious and the recent Tribunal case of Ward v IC (decided in May 2010) summarises some helpful general principles and offers some pointers for schools along the way. Whilst a case turns on its own facts, the Tribunal has given some indication of considerations that may be relevant when looking at a potentially vexatious request: ◆ where the request forms part of an extended campaign to expose

alleged improper or illegal behaviour, where there is evidence to indicate that the campaign itself is not well founded; ◆ where the request involves information which had already been

provided to the applicant; ◆ the nature and extent of the applicant's correspondence with

the public authority suggests an obsessive approach to disclosure; ◆ the tone adopted in correspondence is tendentious and/or

haranguing; ◆ the correspondence could reasonably be expected to have a

negative effect on the health and well-being of officers; and ◆ responding to the request would be likely to entail substantial

and disproportionate financial and administrative burdens. The Tribunal also highlights the need for a balance to be struck between the need to protect public authorities on the one hand and the need not to constrain, unfairly, requests for information

“When deciding if a particular request is vexatious, the background history between the applicant and the public authority (i.e. the school) should be considered…” it is important to remember that it is the request that is vexatious, not the person making it, so they may make a perfectly reasonable, un-vexatious request at a later date.

on the other and the vexatious exemption should not be used lightly.

Even if a person, for example a parent, has a legitimate grievance against a school, remember that both the ICO and the Tribunal

Particular issues for schools

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

The case underlines a number of other important considerations

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

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

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

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

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

governing body will have a larger administrative impact and the

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

threshold for when requests becomes vexatious is likely to be

order to support an allegation that her child had been bullied

lower than in schools with a larger and better resourced governing

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

body.

because her requests were vexatious, her appeal was unsuccessful.

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

Finally, a school must remember to inform the requestor within

requests/conduct of the parties making the request is relevant

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

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

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


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

in “exceptional circumstances” “usually where further evidence has

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

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

“Improving Behaviour and Attendance: Guidance on Exclusion

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

from School and Pupil Referral Units”.

permanent exclusion is the correct sanction.

The Guidance refers to four sets of circumstances where an

A recent case in Northern Ireland that came before the Supreme

individual pupil may be required to leave the school site:

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

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

virtually all respects identical to the exclusion system in England

disciplinary offence and allowing the pupil to remain in school

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

would seriously harm the education and welfare of the pupil or

a pupil remain at home whilst investigations were carried out.

others in the school;

It was termed a ‘precautionary exclusion’. The Supreme Court has ruled that this was unlawful and at least one commentator

2. A pupil is accused of a serious criminal offence but the offence took place outside the school’s jurisdiction. In these circumstances the headteacher may decide it is in the best interests of the individual and the community for that pupil to be educated off

on the case has cast doubt as to whether a headteacher may exclude a child for a fixed term in order to continue to investigate, and/or as a means of protecting the health and safety of the school community.

site for a certain period; A headteacher who excludes for a fixed term has to be satisfied 3. Medical reasons; 4. A pupil is given permission to leave the school premises briefly

that a serious offence has taken place and that it is appropriate to impose a disciplinary sanction. What therefore is the

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

“exceptional circumstance” that permits the school to extend

uniform.

the fixed term exclusion and/or make it permanent?

The Guidance states that a decision to exclude a child permanently

The Supreme Court appears to have rejected the notion, where

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

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

have been established on the balance of probabilities.

pupil not to attend school as part of his general management

Furthermore exclusion should not be imposed in the heat of the

powers, without going through a formal exclusion process. The

moment unless there is an immediate threat to the safety of

Supreme Court has said that this general management power

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

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

all evidence available considered and pupils allowed to give their

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

version of events.

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

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

element.

a pupil has committed a disciplinary offence and needs to be

In my view where a headteacher is faced with a disciplinary

removed from school for that reason then formal exclusion is

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

the only lawful method of removal.

that on the balance of probabilities the offence has taken place

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

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

term and record in the exclusion letter that investigations will

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

continue and the exclusion may be made permanent. This

disciplinary grounds and that it may be made permanent; however

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

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

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

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

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

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

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

I believe that a headteacher may still convert the fixed period


Exclusions (continued)

exclusion into a permanent exclusion setting out clearly the

ensure that the conversion to permanent exclusion is effected

reasons for so doing.

before the expiry of the term of fixed term exclusion.

There could be an argument of double jeopardy (being punished

If the headteacher is not initially satisfied on the balance of

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

probabilities that the offence took place then no fixed term

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

exclusion should be made. The headteacher will need to manage

the headteacher wanted to evaluate all the evidence available,

the situation internally, whilst continuing investigations before

consider risk assessments or alternative strategies etc. Note that

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

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

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

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

exclusion if the facts warrant it.

legal challenge based on the fact that the headteacher has not

For advice on exclusions including reviewing your disciplinary /

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

behaviour policies please contact Michael Brotherton

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

mgb@stoneking.co.uk

Academies and Consulting with your Staff If your School is considering applying for Academy status it is

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

important that the employment law issues are appropriately

technical or organisational reason entailing changes in

addressed.

the workforce (an ETO reason).

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

The majority of Schools transferring to an Academy would not

the Transfer of Undertaking (Protection of Employment)

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

Regulations 2006 ('TUPE').

their Terms and Conditions.

The transfer does not terminate the employment contracts of

It is possible to make changes to employment terms before or

the staff at the existing schools. Instead those employees will

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

transfer to the Academy under their existing terms of employment

reason is either:

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

◆ a reason unconnected with the transfer;

is no break in the employees’ service. ◆ a reason connected with the transfer which is an ETO reason

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

entailing changes in the workforce.

employment contracts and anything done (or not done) by the school before the transfer is treated as having been done by the Academy.

If the Academy is unable to establish an ETO reason for the changes, it is at risk in relation to any claims which may be brought by employees.

The TUPE regulations enhance transferring employees’ unfair dismissal protection by providing that certain dismissals are automatically unfair. As a result the Academy is severely limited in its ability to dismiss employees fairly when a TUPE transfer occurs.

If the variations are invalid then even if the employee accepts them they will not be bound by them. Indeed, in those circumstances they are entitled to take the benefit of any improved terms but ignore the detriment of any less favourable terms. Consequently, it is important to take care and indeed take

Any dismissal of an employee with continuous employment of

appropriate advice during the process.

a year or more will be automatically unfair where the sole or principal reason for the dismissal is either:

For further information regarding ETOs and what can and cannot be done or how it can be done on the creation of an Academy

◆ the transfer itself;

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


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

Free Schools An important and well-publicised element of the coalition government’s education programme is the creation of so-called Free Schools. These, in essence, will be publicly funded schools set up by individuals or organisations who see a need for a new school to meet particular needs. The promoters will, characteristically, be parents, teachers, charities and perhaps existing independent schools although the indications coming from the Department for Education (DfE) is that they do not see this as a rescue opportunity for failing independent schools. The Academies Act refers to the schools as additional schools. The schools will be set up legally as academies, so that they will be constituted as a charitable company limited by guarantee operating under a funding agreement with DfE, under which the company commits to providing and running the school and DfE commits to providing funding. Funding will be on a similar basis

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

to other academies which means that they will broadly receive

promoters may raise capital privately and have interest costs.

what a comparable school within their local authority would

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

receive together with additional funding representing money

interest on borrowing, so free schools will need additional

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

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

academy freedoms which, in essence, means freedom (with

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

certain restrictions in relation to RE and collective worship and,

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

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

be sure that rising rents or increased interest charges can be

as to the curriculum and the right to set individual employment

covered.

terms and conditions without being bound to follow STPCD for

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

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

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

It has been said that planning restrictions on establishing new

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

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

availability is not necessarily related to an insufficiency of places.

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

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

significant questions about matters such as environmental impact

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

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

to procure the disappearance of schools that do not meet popular

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

demand without actively having to engage in a general re-

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

organisation process. However, the Act provides that a

and what there is will be allocated to refurbishment and

consultation must be entered into with such persons are

adaptation. Promoters will normally be expected to identify and

considered appropriate and one would expect challenges to be

provide premises, which may be for example, converted offices

made where this consultation fails to include relevant local

or a hospital and DfE, working through Partnership for Schools

stakeholders.

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

Some free schools will be promoted by bodies with expertise in establishing and running schools. Others, especially those

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

proposed by small groups of parents or teachers, will need

will assess suitability and adaptability. One open question is how


significantly more support. They will possibly be supported by an accredited provider, again assuming that this concept survives, and in any event will get initial guidance from New Schools Network which is a separate charity funded by DfE set up to assist and co-ordinate applications for free schools. The initial process is conducted through them by completing a short proposal form. New Schools Network will assist promoters (directly or by reference to external organisations) to prepare and complete the form but our understanding is that all applications will be considered by DfE. Richard Gold rg@stoneking.co.uk

Your Contacts Education: Roger Inman Partner Richard Gold Consultant Stephen Ravenscroft Partner Michael Brotherton Senior Associate Employment: Nick Watson Partner Peter Woodhouse Partner Tamsin Wilkinson Solicitor Jean Boyle Associate

Stone King LLP 13 Queen Square Bath BA1 2HJ Tel. 01225 337599 Fax. 01225 335437 16 St John’s Lane London EC1M 4BS Tel. 020 7796 1007 Fax. 020 7796 1017 Wellington House East Road Cambridge CB1 1BH Tel. 01223 451070 Fax. 01223 451100 New Hall Market Place Melksham Wiltshire SN12 6EX Tel. 01225 337599 Fax. 01225 335437

www.stoneking.co.uk email: education@stoneking.co.uk

© Stone King LLP 2010

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


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