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CONTENTS 1-2 Bullying – The Recent Ofsted Report 2-3 Liability for Accidents – How the Courts Respond 3-4 Exclusions – A Brave New World 5-6 An Adjudicator Calls: Recent Changes in Objections to Admissions Policies

Education

Bulletin

Education Law News Autumn 2012

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

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

Create a Positive Culture and Prevent and Tackle Bullying” was

bullying. Much of the survey focused on the unique experiences

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

of individual pupils, and their understanding of bullying and its

survey to evaluate the effectiveness of the actions that schools

effects, with inspectors asking pupils what they would do if they were bullied, whether they had been bullied once at their current school and how well they thought their school dealt with bullying. This is a very detailed report so I will pick out some of the main conclusions. Firstly, the inspectors found that most of the schools that they visited had a positive culture and that most pupils were considerate of each other. It was found that many of the schools had developed a range of effective strategies for pupils to learn about moral and social issues. In the best schools, expectations and rules clearly spelled out how pupils should interact with each other. This meant that children developed empathy and understood the effect that bullying could have on people. The best schools recorded bullying incidents, and proceeded to analyse the results, which meant that they could look for trends and patterns and take action promptly. However, the inspectors also found in some schools the analysis of behaviour and bullying was not so focused as it could be, thus meaning that those schools were not able to see exactly what the issues were or what actions needed to be taken next. In a small amount of schools visited, behaviour was more variable s

and interactions between pupils were not so positive. Incidents


Bullying – The Recent Ofsted Report (continued)

s

were dealt with when they happened but the preventative work

The report also suggests that certain groups of people are more

was not so effective.

likely to be bullied. These include disabled pupils and those

One of the main headlines from the report is that schools need to allocate sufficient resources to enable staff to have specific training. It was found that the training in the majority of schools that provided training tended to be very general, and did not always focus on the different types of bullying that could occur, for example homophobic bullying. This meant that some staff were not feeling wholly confident to tackle all types of incident. Another recommendation in the Ofsted report is for schools to have a combined behaviour and anti-bullying policy, the intention being that bullying should be seen as being part of a continuum of behaviour, rather than being seen as something separate. According to the Ofsted report, “having one policy that commonly linked the schools expectations and behaviour to its stance on bullying left a greater clarity for both staff and pupils”.

who have special educational needs, and pupils who are, or are perceived to be, homosexual. The inspectors found that casual use of language that discriminated against these groups of pupils, and others, was common in many of the schools visited. Although many pupils were well aware that such language was not acceptable, it was often seen as just being “banter”. Some staff also indicated that they did not always feel confident to challenge unacceptable language or have the strategies to do so. The report also states that “disability was seldom covered as well as other aspects of diversity. The schools were generally sensitive to the needs of individual disabled pupils or those who have special educational needs. However, disabled people were often not considered as a group, even where schools were covering the areas of race, culture, faith, gender and sexuality thoroughly”. So although most schools are doing well on this issue, the clear message is that there is always room for improvement, and that adequate resources and specific training are required. For further advice on this subject or to discuss your existing policy and practical recommendations please contact David Milton at djmm@stoneking.co.uk. David Milton djmm@stoneking.co.uk 01225 324433 Find out more Ofsted report – http://www.ofsted.gov.uk/resources/no-place-for-bullying

Liability for Accidents – How the Courts Respond There have been further reported cases that confirm the pragmatic

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

approach taken by the courts when accidents happen in school or

background of bad behaviour and on those facts the school was

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

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

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

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

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

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

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

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

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

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


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

That third case adds a dimension to the risk assessment process. There was a discussion about the need for risk assessments to be carried out in advance and recorded – static risk assessments – and those that are conducted mentally during the course of the activity – described as dynamic risk assessments. These are appropriate where there are many variables arising in the course of the activity as was the case here and the judge held that the fact that there was no written risk assessment in relation to the handicapping system applied to the adults did not give rise to liability. Not everything, therefore, does have to be written down but by not assessing risk in advance and recording it schools will leave themselves open to interpretation by the judge if an the decision came only after a very detailed examination by the judge of the qualifications of the teacher to lead the expedition and of the arrangements, including back-up and emergency arrangements, that were in place. In the third case, Blair-Ford v. CRS Adventures Ltd, the claimant suffered catastrophic injuries when taking part in a welly-wanging activity during a school visit to an activity centre. As part of a handicapping system to enable the activity to be competitive as between adults and students the adults were required to throw the wellington boot backwards through their legs. The claimant, a fit and active person, over-balanced and sustained injuries that led to him becoming tetraplegic. Again, the judge conducted a very detailed enquiry into the activity, the qualifications of the organisers, the process or risk assessment and the absence of any history of accidents and concluded that this was a freak and unforeseeable accident

accident occurs. What these cases demonstrate is that the judges recognise that accidents do happen, that they are not necessarily the fault of the school and that the standard of care applied, whilst stringent, does not demand perfection. However, every case of this kind depends on its particular facts and they do not reduce the need to plan and assess risk meticulously. The paper trail is critical as a means of demonstrating this so make sure that good records are kept. Also, make sure that when you plan activities that go beyond the routine trip to the zoo or theatre you make sure that those planning and leading are properly qualified and equipped to do so. Michael Brotherton mgb@stoneking.co.uk 01225 324481

(although having happened it is now clearly foreseeable and anyone involved in such an activity needs to ensure that any participant knows the risk and how to counter it) for which no blame could be attributed.

David Milton djmm@stoneking.co.uk 01225 324433

Exclusions – A Brave New World In comparison to school admissions, the law and guidance relating

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

to exclusions has been relatively untouched by the various guises

funding agreement is now redundant.

of Education Departments. There is now all change as of 1st September 2012, with new statutory regulations and guidance applying to all exclusions from that date (any late summer term exclusions would be dealt with under the old guidance). Academies

On the face of it, the new legal process is very attractive – the headline being that the Independent Review Panel (IRP), which replaces the independent appeal panel, will not have the power


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

The expert who should not have had any previous involvement

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

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

has upheld the exclusion.

to provide impartial advice to the IRP commenting on any SEN

However if you scrutinise the guidance a little more closely, it raises enough questions about process and procedure to suggest that the Administrative Court may be dealing with yet more exclusion

aspect of the exclusion. We advise academies to source a panel of SEN experts to enable (a) choice for the parent; and (b) ease of appointment for hearings.

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

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

process is really meant to work.

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

Prior to the IRP stage, the guidance is less prescriptive (in keeping with the Department for Education’s aim at reducing bureaucracy) but the process is fundamentally the same, in terms of investigation, burden of proof, decision to exclude. There is the requirement to take into account the context (e.g. bullying, bereavement, mental health issues) that may have influenced or impacted upon the relevant incident and there is emphasis on allowing the accused to have his/her say. There is no longer a helpful list of examples of

review its decision again, say where fresh evidence has come to light, or it may quash the governors’ decision and direct that the governors reconsider – where the IRP considers the decision of the governors was irrational or ‘off the rails’. In either instance, the governors are required to reconvene within 10 school days of that IRP decision, but notably there is no guidance as to the process of this reconvening : e.g. whether this ought to be before a fresh governor panel, whether a new hearing should take place etc.

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

In the absence of being compelled to convene a fresh hearing

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

one may presume that the governing body simply is required

Focusing on the IRP stage (which only applies to permanent exclusions), the first significant point is that parents even if their child is not recognised by the school as having any form of SEN may request an SEN expert be present at the IRP hearing.

to reconvene and either uphold its original decision or agree to reinstate the pupil. If the decision is to uphold the original decision to exclude then the IRP has the power (where it had quashed the original decision) to order an adjustment in the school’s budget in the sum of £4,000 (or for an academy, to make a payment in that sum to the local authority). It seems to us that the reduced power of the IRP will mean that parents and their advisors are likely to challenge the exclusion at the governor stage and governor decisions will be subject to greater scrutiny. Finally, parents may also bring a claim in the First Tier Tribunal (disability discrimination) or the County Court (for other forms of discrimination). The time limit for such claims is 6 months from the date of the alleged discriminatory act and both the Tribunal and the Court have the power to reinstate the excluded pupil. There is the possibility that a pupil is excluded, removed from the school roll, and several months later is reinstated by the Court or Tribunal. We will be happy to advise schools and academies in detail. Michael Brotherton mgb@stoneking.co.uk 01225 324481


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

An Adjudicator Calls: Recent Changes in Objections to Admissions Policies Under the School Admissions Code 2012 and accompanying new

arrangements that are the subject of the immediate objection,

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

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

Schools Adjudicator about the admissions arrangements that each

on the determination by another Adjudicator of any objection

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

to a future version of those arrangements in subsequent years,

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

although it will of course be very influential. Consequently a

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

School could potentially attempt to re-introduce content into

during the summer holidays!).

future versions of its arrangements which an Adjudicator has

First, any person can object about arrangements to the Adjudicator by the earlier deadline of 30th June. Whilst this reduces the window of opportunity for an objection to less than three months, it will

removed from a previous version, provided that it has sufficient reasons and supporting evidence, although this might be very difficult in practice if factual circumstances have not changed.

give Adjudicators more time to fix changes to arrangements

Our recommendations to Schools receiving notice of an objection

before the publication of Local Authority composite prospectus

from the Schools Adjudicator are:

(normally by 12th September).

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

Secondly, the jurisdiction and powers of the Adjudicator have

over your admission arrangements and can order amendments

been altered. Objections cannot be made which raise the same

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

or substantially the same matters as the Adjudicator has decided

Objection);

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

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

somewhat out of balance, the regulation allowing an Adjudicator

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

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

in handling evidence and will not always come back to you

been removed. This latter change is of considerable importance

for comment on new evidence arising before issuing their

because even though an Adjudicator’s decision is “binding

written determination. Sometimes they will offer a meeting,

and enforceable” on the particular version of the admission

sometimes they will not. ◆◆ Have your say: ◆◆ There is no effective means of appealing an Adjudicator’s

determination: theoretically a School can seek judicial review of it by the High Court, but that Court will defer to the Adjudicator’s expertise unless there is a misapplication of the law or a glaring failure to provide reasons for decisions. ◆◆ As referred to above, because the Adjudicator cannot fix a time

limit on changes to your arrangements it is worth exhausting a dialogue with him/her over particularly critical issues to put yourself in the best position possible if you want to try and re-introduce any parts of your arrangements that he/she


removes now into a future set of arrangements. Unless the

need any further information about handling adjudications or

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

how to plan future admission arrangements after an Adjudication,

he/she may simply provide a summary determination over

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

that point. Roger Inman ri@stoneking.co.uk 01223 451344

In short, although the quality of Adjudicators is generally high, their jurisdiction over Schools’ admission arrangements is broad and they have considerable freedom to act as they want. If you

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

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

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 08/2012

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

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