CONTENTS 1-2 Important Developments in Equality Obligations for Schools 2-3 Registration of Title 4 Risk Assessment 5 Between a Rock and a Hard Place 6 Making it Easier for Charities to sell and Dispose of Land
Education Law News Winter 2011
Important Developments in Equality Obligations for Schools The majority of the Equality Act 2010 came into force on 1st October 2010. Acts of alleged discrimination which ended before that date are dealt with under the old law. The Act is now the sole place to find the law contained in nine old statutes, which is helpful. It also adds a significant amount of new obligations for schools. In doing so it rewords the key concepts of equality law and applies common definitions of unlawful discrimination (some of which are new) to a number of specified “protected characteristics” (e.g. race). With certain narrow exceptions, the Act covers a School’s actions in relation to: ◆ Staff
students) but this has the effect of putting those sharing a protected characteristic within the group in a particular
◆ Pupils (prospective, current and in some limited circumstances,
disadvantage. Indirect discrimination now also applies to disability and gender reassignment.
Disability Discrimination Direct Discrimination
The Act has also introduced a new concept of ‘discrimination arising
Direct discrimination now occurs when a School treats A less favourably
from disability’ which means that Tribunals will no longer need
than it treats (or would treat) B because of A’s protected
to consider a non-disabled comparator when deciding if a disabled
characteristic. This also can now be claimed when it can be
employee (or applicant student) has been treated less favourably
proven that a School just believes the Claimant had a protected
– the test is now whether A has treated B unfavourably because
characteristic (even if he/she does not) or if the Claimant has been
of something arising in consequence of B's disability.
discriminated against because of their “association” with a person (e.g. a sibling) who has a protected characteristic.
Combined discrimination This aspect of the Act is not yet in force, but when introduced will allow claimants to issue proceedings on the basis of ‘combined
This now applies to provision for pupils for the first time. Indirect
discrimination’ based on a combination of no more than two protected
discrimination occurs when one applies a “provision, criterion or
characteristics. The new concept will only be relevant to claims
practice” in the same way for all people in a group (e.g. A-level physics
of direct discrimination.
Important Developments in Equality Obligations for Schools(continued)
Burden of Proof
obligation is not yet in force and will probably not be for a
Any person who alleges discrimination or victimisation in relation
further year at least.
to any of the protected characteristics must first establish sufficient facts which, in the absence of any other explanation, suggest a breach by the defendant. Once the claimant has shown this then it will be for the defendant to show that in fact no such breach has occurred.
Pre-employment Health Questionnaires This is one of the most significant changes for schools. An employer can no longer ask about the health of an applicant prior to offering them a position unless they are asking for a specified purpose e.g. to make reasonable adjustments for interview, to monitor applicant diversity, or to establish whether the applicant will be able to carry out a function which is intrinsic to the work concerned. The EHRC’s non-statutory guidance indicates that ‘intrinsic to the work concerned’ should be narrowly construed.
SEN and Disability Provision for Pupils The Act does not sort out the unsatisfactory overlap between these
Positive action The Act allows schools to take proportionate action to address the disadvantage faced by particular groups of pupils sharing a protected characteristic.
Reasonable Adjustments and Justification With the exception of direct discrimination, it is still possible to make different treatment lawful if all required steps have been taken to make reasonable adjustments and the treatment is justified by being a proportionate means of achieving a legitimate aim.
New Guidance There is new guidance on both the pre-October and post-October 2010 situation via: http://www.equalities.gov.uk/equality_act_2010. This guidance is markedly different to its predecessor and the school specific guidance has a very different approach to reasonable adjustments in particular.
two forms of pupil provision. The Act contains a potential
If you need more detailed and impartial advice please contact Roger
obligation to provide “auxiliary aids and services” to disabled pupils
Inman: email@example.com or Tamsin Wilkinson: firstname.lastname@example.org
in addition to any provision made to them under SEN law, but this
Registration of Title Background:The intention of Government policy has been the advancement
Advantages of Registration:
of registration of all land ownership in this country. This has been
1. State Guarantee of Ownership
carried forward through an increase in the number of land transactions triggering registration and also an extension of the rights and matters which should be recorded on the registers of title. This has most recently been extended by the Land Registry Act 2002, which has also added other incentives to registration.
Registration of title to land is held electronically by HMLR and is guaranteed by the State as being evidence of good title (the right to own). This negates the need to rely upon the production of a valid set of documents as evidence of ownership. 2. Certainty of rights and obligations affecting the Property
Effect on Independent Schools? Most school sites are now registered but this may not necessarily include the entire estate.
On registration the rights and obligations both burdening and benefiting
Currently the Land Registry (“HMLR”) offers incentives to register
the Property are recorded on the register of title. Consequently
land however it is not known how long these will last. Land registration
if deeds are lost/damaged/destroyed then a record of the rights
is expected to be made more expensive and may become
will remain on the register independently.
compulsory in 2012/13.
3. Clarification of the extent of the title and the rights and obligations affecting it
Registration of Title (continued)
“Registered land owners cannot necessarily defeat a claim by a squatter who has used the land for 12 years prior to registration but if the 12 years use includes a period within which the land was registered, there is a statutory mechanism available for the registered owner to use.” Registration is the process whereby evidence of ownership together with the rights and obligations affecting the Property is investigated and produced for HMLR. In situations where there is a disparity between the physical boundaries on the ground and the documentary title it may be necessary to prepare Statutory Declarations to evidence ownership. In other cases the Trustees may find that land is already occupied by third parties: this could be through squatting, boundary movements,
Following a thorough title review it may become apparent that registration will aid other management/development projects.
or historic transfers for which there is no longer evidence. The Trustees
Disadvantages of Registration
may decide to assert their rights against those third parties or
to leave the relevant area out of the Property. There is an upfront cost in registering title, but HMLR will 4. Adverse Possession
undertake much of the work themselves as well as entering into
There is a significant advantage of registered land over unregistered
bulk registration deals (in cases where there are a number of parcels
land in relation to adverse possession claims (squatters rights) by
fees can be reduced to as little as £7.50 a parcel).
2. Management Time
Registered land owners cannot necessarily defeat a claim by a squatter
Registration is a timely process that will require school staff, or
who has used the land for 12 years prior to registration, but if the
professional advisors, to resolve any issues that arise. Registration
12 years use includes a period within which the land was registered,
can only be completed after these have been resolved.
there is a statutory mechanism available for the registered owner to use. This is a very real advantage and is especially useful for owners of larger and more disparate estates where daily checks against boundaries are less easy. 5. Ease of administration Once registered, anyone dealing with the land can in the first instance refer to the register of title by enquiry of HMLR. This saves costs as deeds do not need to be studied and reproduced.
3. Public Disclosure On registration, details of title to the land will become a matter of public record and title documentation will be available to the public (unless an exclusion can be established on appropriate grounds). 4. Acceleration of Property issues The registration process will itself identify issues and may bring them to the fore sooner than might occur otherwise. This is largely in the control of the Trustees but the potential implications need to be anticipated.
6. Cheaper fees for voluntary registration We have carried through this process for a number of our At present the fees charged for voluntary registration remain cheaper
Independent School clients and we believe each has found
than those for compulsory registration, however it is not known
registration a considerable benefit.
how long these reduced rates will last. Hugh Pearce: email@example.com 7. Possible other collateral benefits from the registration process?
Risk Assessment On the Health & Safety Executive’s website there is an entertaining section called Myth of The Month in which they record perfectly ordinary activities, wrongly alleged to have been banned by the HSE; these include the wearing of school ties, the hanging of bunting at village fetes, conker games, firemen’s poles and park benches (http://www.hse.gov.uk/myth/dec10.htm). These myths have probably been created by organisations wishing to avoid personal injury claims and formulated by lazy journalists into real pronouncements of the HSE. It seems to me that there is a risk in almost everything we do but that does not mean we should not do it, whether “it” is climbing a mountain, launching a boat, picking up a hockey stick, driving to work, or just running a school. What we should do is constantly to assess risk, take proportionate steps to avoid it and “go for it”. What we should not do is to wrap ourselves or our children in the proverbial cotton wool by banning anything that is likely to present a risk. Doing nothing is surely the greater risk.
“In a school assessing risk is not only a matter of ensuring health and safety and taking proportionate means to protect children, staff and visitors from harm.”
The HSE suggest 5 steps to risk assessment: ◆ Identify the hazards – how might people be harmed by climbing
a staircase, playing sports or cleaning the floor? ◆ Decide who might be harmed – children and staff obviously but
schools have a huge footfall of visitors. ◆ Evaluate the risks and decide on precautions – these should be
reasonably practicable and proportionate. ◆ Recording findings – not to show that you have done an
assessment but precisely in order to share the assessment and implement amongst the school community a policy to avoid harm or injury. ◆ To review assessment – new equipment, new ways of doing things
and new people mean that a regular review is vital.
not merely the compensation awarded and the legal fees but the potential reputational damage and the time spent by senior management. ◆ The impact of the recession – all schools will do their best to
retain pupils and parents will do their best when facing financial difficulties. For some schools, losing a pupil may result in that place not being filled, not only this year but in future years, so a loss in the IVth form could be more damaging long term than the loss of a VIth form pupil. ◆ Loss of reserves: surpluses need constantly to be built up so that
there is available cash to spend on maintenance & replacement, reinvestment in facilities or other new projects. If surpluses dwindle and reserves are used and not replaced, the risk may be to future
In a school assessing risk is not only a matter of ensuring health
pupils rather than present pupils.
and safety and taking proportionate means to protect children, staff and visitors from harm. There are other real risks to a school’s future, for example:
Governors, especially those who run their own businesses, can be very helpful in assessing risk to the school as a business and prioritising action; indeed, it is an important role of governors, so use that expertise
◆ The risk of litigation if parental complaints are not properly managed,
or if staff are not properly managed or are dealt with outside the terms of their contracts or of employment law. The risk is
Michael King: firstname.lastname@example.org
Between a Rock and a Hard Place
Some recent highly-publicised legacy disputes, all of which have by coincidence involved the RSPCA, have highlighted the dilemmas which can be faced when collecting in charitable legacies.
“…legacies do not represent an entirely straightforward source of income. They are dependent upon external factors which may lead to donors’ Wills being challenged.”
Schools and other educational organisations can benefit very significantly from legacies. In their alumni, they have a ready-made group of
the RSPCA which did not represent her true wishes; and
(hopefully) grateful recipients of their services and the potential to raise very significant funds – after all, the opportunity to leave a gift in one’s Will represents the opportunity for each of us to make the biggest charitable gift of our lives. While a legacy initiative
◆ the daughter had been promised a gift of her parents’ farm and,
because she had acted in reliance on that promise, it would be wrong for her not to receive her parents’ farm.
might seem unlikely to produce immediate results, research has
The RSPCA appealed against that decision but has recently heard
shown that most charitable legacies are included in Wills which
that its appeal has been rejected.
are written within the last few years of donors’ lives, and so perhaps such initiatives can produce earlier results than might have been expected!
The case has resulted in very significant bad publicity for the RSPCA. Their trustees were truly left between a rock and a hard place – on the one hand, the Will contained a very clear explanation of
Nevertheless, legacies do not represent an entirely straightforward
why no provision had been made for the daughter and the
source of income. They are dependent upon external factors which
RSPCA’s trustees therefore had a clear duty not to give up that entitlement
may lead to donors’Wills being challenged. Recessionary pressures
too readily. Equally, on the other hand, in pursuing that entitlement
are perhaps one of the reasons why Court statistics have shown
and, still further, in appealing the original judgment, the trustees
that inheritance challenges to Wills have increased by some
have incurred reputational damage for their charity.
38% over the last year.
Legacies therefore need to be collected in with great sensitivity.
In the most highly-publicised of the three recent RSPCA legacy
Our Legacy Team is one of the leading such teams nationally and
dispute cases, the Will of the widow of a Yorkshire farmer was challenged
is well used to advising both on the creation of legacy literature
by their daughter who disputed her mother’s gift of her entire estate
to send to potential donors and then on dealing with the
to the RSPCA. There were different elements to her claim and the
collection of legacies at the end of the day.
Court held last year that the Will should be set aside on two grounds: ◆ the father had coerced his wife into leaving a Will in favour of
For further information, please contact Jonathan Burchfield: email@example.com.
Making it easier for Charities to Sell and Dispose of Land The Government recently consulted over the definition of
• The current definition is too narrow and should be extended
“qualified surveyor” in relation to disposals by charities of land
to include Fellows of the National Association of Estate Agents;
under s36 of the Charities Act 1993. The definition had up until
• A widening of the definition would reduce the cost to charities
now been considered by some as being too narrow and placing
of obtaining reports to satisfy s36, although this may only apply
a disproportionate burden on charities. As a consequence, the Government
in relation to residential disposals;
has decided that, as part of the 2011 review of the operations of the Charities Act 2006, it will extend the definition of qualified
• The extended definition will increase trustees’ choice and in turn competition for the work. This will enable trustees to match
more appropriately a surveyor to the disposal. The government’s response to the consultation reached the Darren Hooker: firstname.lastname@example.org
Your Contacts Education: Michael King Partner Roger Inman Partner Michael Brotherton Senior Associate Sarah White Solicitor Commercial Property: Hugh Pearce Partner
Stephanie Howarth Partner Corporate and Commercial: Roy Butler Partner Employment: Nick Watson Partner Peter Woodhouse Partner
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: email@example.com
© Stone King LLP 2011
Independent Schools 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