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1-2 In-Year Admissions 3-4 Key Changes to Special Education Needs 4-5 The Local Government Pension Scheme – Discretions 5 Health and Safety Update - Working at height and proposed changes to the First Aid Regulations

Education Law News Summer 2013

In-Year Admissions In-year admissions are said to amount to about 5% of admissions to

it will probably be refused on the basis that admission would be

maintained schools overall but seem to give rise to a disproportionate

prejudicial to efficient education or the efficient use of resources

amount of difficulty.

and the parents will be given a right of appeal. There are, though,

There are two separate situations to consider, ordinary applications

two difficult issues that may arise:-

received during the course of the year and placements under the

1. The school may have dropped below (or may never have reached)

fair access protocol.

its initial Planed Admission Number (PAN) for the year group in

Ordinary applications come about for a variety of reasons but mostly as a result of parents wanting a change of school, newly arrived in the country or moving into a new area – the last of which being something that may become more frequent if predictions about the side-effect of changes in housing benefit are proved correct. For the most part, they are not problematic – if the desired school has space then a place will be offered. If it does not, then

question but may nevertheless want to refuse a place on the basis of prejudice that would arise. Many LAs believe that there is a legal obligation to fill up to PAN in every year but that is based on a mis-interpretation of the School Standards and Framework Act 1998. If a school falls below PAN in the normal year of entry, i.e. Reception for a primary school or Year 7 for a secondary one, then indeed the vacant places must be filled. If, though, that happens in any other year the admission authority (be it the LA for community or voluntary-controlled schools or the governing body for other schools including academies) may refuse the application and leave it to the independent appeal panel (IAP) to decide whether the prejudice case is made out and whether there are compelling reasons for the child to go to the school in question. If the school has simply fallen one below PAN, it would probably be an uphill struggle to persuade the IAP that going back to PAN would cause prejudice but the admission authority is entitled to act in this way. Also, para 2.8 of the Admissions Code states “With the exception of designated grammar schools, all maintained schools, including faith schools, that have enough places available must offer a place to every child who has applied for one, without condition or the use of any oversubscription criteria”. That is interpreted by some LAs (seemingly on advice from DfE) as overriding the s

entitlement to refuse on the basis of prejudice but we do not

In-Year Admissions (continued)


is not usually applied - it can be a hugely delaying requirement – but it gives schools that are reluctant to take their fair share of placements (or who feel they are being unfairly treated by the LA) opportunities to refuse to consider a protocol placement unless they are satisfied that appropriate applications for places elsewhere have been made and have been rejected. agree with this as we do not believe the Admissions Code can override an entitlement that derives from statute.

2. Para 3.9 of the Code requires that the protocol ensures that children are offered a place “as quickly as possible” but that expression is not defined. There is a general expectation that

2. The Admissions Code, in para 3.12, implies that schools can refuse

decisions will be taken within a fortnight and that is clearly

places on the ground of challenging behaviour in years other than

sensible where vulnerable children are not in school. However,

the normal year of entry although in those circumstances the

para 2.7 of the Code specifies that no admission decision may be

case must be referred to the LA for action under the fair access

taken by a single individual and that where a school is its own

protocol. Because of the way this is worded, it can only apply to

admission authority all decisions (even where the school is happy

applications that are made under the normal admissions process.

to offer places) must be taken by the whole governing body or

How, though, is the school to come by information about the

by an admissions committee established by the governing body.

behaviour? It cannot get the information from the parents – or

That is not limited to applications that come through the ordinary

if it does, it cannot use the information to inform the decision –

admissions process – itself a very cumbersome and unnecessary

because that would constitute interviewing which breaches para

requirement – but must apply also to protocol placements. To

1.9 (m) of the Code. It cannot ask for information from a previous

be procedurally compliant, seven days’ notice of a committee

school because that breaches para 1.9 (g) of the Code. Probably

meeting should be given – fourteen days for many academies

the only information it can rely on is that, if any, supplied by the

under the terms of their articles - unless the school is willing to

LA but the practice of LAs in providing such information seems

use the emergency provisions to justify short notice. It is another

to vary considerably across the country. It would be interesting

delay factor and a cause of friction between the LA and the school

to know how schools actually manage this subject.

that insists on due process being followed. Recent non-statutory

Placements under a fair access protocol do give rise to difficulties,

guidance from DfE is too broad and generalised to assist and in

not least because there is no nationally agreed or imposed model

fact perpetuates the problem by suggesting that responses should

form of protocol and they can vary from the very brief to ones

be made within seven (calendar) days.

that try to accommodate every situation that the LA can foresee.

The slimmed-down Admissions Code was in many ways welcome

Anecdotally it appears that difficulties characteristically arise

and to a large extent it does its job well. However, inconsistencies

where the relationship between the LA and the school is in any

of drafting or instances of situations not being fully thought-

event poor and/or where the protocol is not applied in an open

through, can still be found, as appears from the above examples,

and transparent way. The way the Code is written does not help

and the fact that the Code is the equivalent of legislation, with no

situations where tension of that kind exists. We see problems

ability to opt out of the “must” and “must not” elements except

arising in two areas:-

perhaps where they conflict with statute, brings rigidity to an area

1. The way paras 3.9 and 3.10 of the Code are written indicates that,

where in truth a degree of discretion, coupled with a requirement

except where the child has an “unsupportive” background, the protocol can only be applied once the normal admission process has failed to lead to a place being found. That in turn means that the parent must apply to all schools reasonably within range – question whether that requires applications to schools that are known to be “full” – before the protocol can be triggered. This

to act in good faith, might bring more equitable results. However, there seems no prospect of the Code being changed in the near future – we understand from DfE officials that the intention is not to make changes during the lifetime of the present government – so schools and LAs will have to continue to try to make sense of a system that in key areas lacks coherence.

“One stand out feature of the current Bill is the widening of “personal” budgets in the hands of parents of students with SEND, beyond the existing direct payment of personal care.”

Key Changes to Special Education Needs Provision in an EHC Plan, whilst schools governing bodies (including academies) still have the lesser duty to use their “best endeavours” to ensure that their students’ SEN are met. Annual reviews of EHC plans will continue. The Bill does not apply to Higher Education.

Local Authority Organisational Change The key new obligations on Local Authorities will be: ◆◆ The duty on different agencies to co-operate and promote

integration of SEN services (including, quite incredibly, a The law surrounding SEN has not changed substantially for over

statutory obligation on local authorities to ensure that its

10 years and its foundations are more than 30 years old. The

officers co-operate with each other!)

forthcoming Children and Families Bill will introduce significant change in “joined up” Education Health and Care (EHC) Plans, which will replace Statements and Learning Difficulty Assessments, cover students with SEND up to the age of 25 and are designed to pull together all three elements of provision more effectively.

◆◆ Duty on local authorities and their clinical commissioning

groups to make “joint commissioning arrangements” ◆◆ Each Local Authority must produce a “Local Offer” which will

co-ordinate and explain SEN services more clearly (including travel to education and training). There are currently no

The bill has had its second reading in the Commons and its SEN

proposed standards or enforcement mechanisms for the

changes are on track for introduction in September 2014. Those

“Local Offer”. Its immediate significance is that a School will

SEN changes split into two main areas:

be expected to provide the “Local Offer” (as defined by the

◆◆ local authority organisational change

local authority) in its individual setting though its APWU and

◆◆ change in the delivery of special educational provision to

individual pupils.

“additional support funding” (i.e. up to £10,000 per pupil). Thus the School’s “standard offer” for all but the highest SEN will need to mirror the ordinary SEN provision in the “Local

What will not change

Offer”. “High needs” provision through “top up” funding will

The definition of Special Educational Needs and Provision will

presumably therefore be described separately in the Local

remain materially unaltered and the process for putting an ECH Plan in place will be almost identical to that current required for putting an SEN Statement into place (although we still await new regulations regarding the detail). The triggering events for

Offer. Schools are therefore advised to take their “Local Offer” seriously because local authorities may include as much as possible in its ordinary element to reduce pressure on their top up funds.

a Tribunal claim will not change and no compulsory change is

◆◆ Various parties are obliged to co-operate with a Local

proposed for the process for a Tribunal apart from Claimants being

Authority’s discharge of its SEN duties, including the Governing

obliged to consider using mediation instead. However, Students

Bodies of all maintained and academy schools.

up to the age of 25 will be able to make a Tribunal claim (bringing Further Education into the SEN Tribunal regime for the first time). The local authority still must “secure” the Special Educational

However only the education part of EHC plans is expected to have any real bite in terms of enforceability in Tribunals, and it is unlikely that this Bill will do much to enforce multi agency working

outside the local authorities that already have the appetite for it.

Changes for Individual Pupils and Schools One stand out feature of the current Bill is the widening of “personal” budgets in the hands of parents of students with SEND, beyond the existing direct payment of personal care. This is perhaps the core policy outcome from the Lamb Report on

◆◆ School Action and School Action Plus registers will be dispensed

with. ◆◆ All state funded schools (including Academies for the first time)

must have a designated SENCO. ◆◆ Academies (as well as maintained schools) must now provide

SEN information reports.

parental perceptions of the SEND system, which found a general,

Supporting Regulations and a new Code of Practice are expected

profound sense of powerlessness amongst parents navigating

before implementation of the Bill in 2014 and they should provide

public services on behalf of their children. It is, however, difficult

some key detail on how these changes are expected to work in

to see how this personal budget can be deployed effectively and

practice. As discussed above in the context of the “Local Offer”,

efficiently in schools. First, there is the educational judgement

a lot of the real change in SEN for schools may result from the

needed to deliver appropriate provision: for instance a caring

separate funding formula changes being driven through in the

parent may think it is essential to velcro a teaching assistant to

transition to a national funding formula. For chaos not to ensue,

their child but a school may disagree. The other core issue is how

those funding changes need to become established and stabilised

a “personal budget” would be stripped out of the overall funding

before the financial effects of the Bill come into force.

provided to the school. Other notable changes are:

Roger Inman, Partner and Head of Education

The Local Government Pension Scheme – Discretions Under the regulations governing the Local Government Pension

discretions policy to the administering authority of the pension

Scheme (LGPS) an employer who participates in the pension

scheme within three months of commencing participation in

scheme has the right to authorise discretion on a number of

the scheme. This is particularly noteworthy when for example,

matters regarding the administration of the scheme.

a school converts to academy status, as it would be required to

For a number of those discretions, there is a statutory requirement

produce a discretions policy reasonably swiftly post conversion.

to publicise the approach the employer will take. These are the

The employer will need to be able to demonstrate what its policy

power of the employer to:

is, or was, at any given point in time, should an issue be raised or

◆◆ increase total membership of active members; ◆◆ award additional pension; ◆◆ authorise flexible retirement; and ◆◆ authorise the early payment of pension.

Regulation 66 of the Administration Regulations (one of the set of regulations governing the LGPS) requires the employer to issue

an appeal lodged through the LGPS Internal Dispute Resolution Procedure, or with the Pensions Ombudsman. As to the content of the policies, in general terms they should not be so rigid as to prevent flexibility where a situation requires it. The written policy statement should make it clear that: ◆◆ The policy confers no contractual rights.

a written policy statement on how it will exercise the discretions

◆◆ The employer retains the right to change the policy at any time.

set out above, to keep it under review, and to revise it as necessary.

◆◆ Only the policy which is current at the time when the discretion

may be applied (e.g. when the member applies for early


The regulations require the employer to provide a copy of its

 he Local Government Pension Scheme – T Discretions (continued)


retirement) will be the one applied to that member. In relation to the actual bulk of the policy, there is no need for an employer to attempt to re-write War and Peace. The first step should be to obtain a copy of the Local Authority’s discretions

the more likely it is for an employee (especially if the policy does not contain a statement confirming that it confers no contractual rights) to argue that the policy infers rights into their contract of employment. This is clearly undesirable.

policy (as an employer in the LGPS it is required to have discretions

It is reasonably easy to foresee a situation where following an

policy in place in exactly the same way) and establish whether

academy conversion for example, an employee approaches

it can be replicated for the organisation concerned or whether it

retirement. The academy has a very general policy and exercises its

requires amendment. There is no strict legal requirement to adopt

discretion in relation to authorising early retirement in exceptional

the same policy as the Local Authority (subject to the comments

circumstances. The employee argues that when they were employed

below), but using it as a starting point would appear to ease this

by the Local Authority (i.e. pre-conversion) the discretion was far

particular administrative burden.

more widely applied by their employer. The employee argues that

In most circumstances, discretions policies (including those produced by Local Authorities) are extremely general and repetitive and merely state that the employer will not have a general policy

when the school converted to an Academy they were promised that all their terms and conditions would be maintained under TUPE. Therefore why is their ability to retire early outside of this?

to exercise that particular discretion, but may consider doing

Stone King LLP is able to assist with the drafting and amending

so where a sound business case can be made in its favour. That

of discretions policies and provide advice on any aspect of this

said employers are able to have specific more detailed policies

area, including issues such as the one set out above.

which provide a little more certainty if deemed necessary. This

For further information please contact:

approach is not particularly popular, as organisations usually

Jean Boyle 01225 326745

want to retain the ability to use their judgment in relation to individual cases. Furthermore, the more detailed the discretion,

Health and Safety Update: Working at height and proposed changes to the First Aid Regulations The need for appropriate training and risk assessment for school

The Magistrates’ Court received evidence to the effect that the

employees working at height has recently come into focus as a

caretaker had started work at the school 6 years before the accident

result of a recent criminal prosecution brought under the Work

and that he had not received any training on working at height,

at Height Regulations 2005.

contrary to the Regulations. The Magistrates handed down a

The circumstances are that a 61 year old caretaker, who refused to be named in the criminal proceedings, injured his knees, ankles,

fine of £7,000 and also ordered the prosecution’s legal costs to be paid in the sum of £12,260.

neck and right hand as a result of falling from the roof of a shed

After the hearing the Health and Safety Inspector who led the

at a Primary School in Oldham. The facts are that he had been

investigation commented “It’s disappointing that the caretaker

carrying out maintenance work to the roof of the shed, which is

had been working at the school for six years without receiving

used to store equipment for a neighbouring children’s centre. The

any training on how to work safely at height . . . work at height

roof had recently been vandalised and the felt had been ripped off,

is one of the biggest causes of workplace deaths and injuries in

causing it to leak. The caretaker had climbed onto the roof and

the UK, and this case should act as a warning to employers about

was attempting to place plastic sheeting on it when he tripped

the dangers”.

and fell backwards, landing on a concrete floor three metres below.

concerning proposed amendments to the First Aid Regulations,


He was unable to return to work full time and was forced to retire.

In the meantime draft guidance has recently been published


the current Regulation in place being The Health and Safety (First

to meet a certain standard, which will be set by HSE. Schools like

Aid) Regulations 1981. The main part of the proposed changes,

other employers will also still have the same legal requirement

which are expected to come into force in October 2013, is the

to ensure that they have an adequate number of suitably trained

removal of the requirement for the Health and Safety Executive

first aiders in accordance with their first aid needs assessment.

(HSE) to approve the training and qualifications of appointed

Until such time as the Regulations change the existing law

first aid personnel.

continues to apply.

The benefit of this is that schools will have greater flexibility in

If you would like to ensure your compliance in this time of ongoing

their choice of training provider as well as the ability to choose

Health and Safety uncertainty please take advantage of our offer

first aid training that is right for their school, and based on their

of a free review of your existing Health and Safety Management

individual needs. Training providers will still however be required

System. For further information please contact DavidMilton@

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

Employment: Nick Watson Partner Peter Woodhouse Partner Jean Boyle Associate Tamsin Wilkinson Solicitor Victoria Blake HR Consultant Paul Tunnicliffe HR Adviser Agie Galea 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 email:

Š Stone King LLP 05/2013

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.

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