browne jacobson - education law conference 2016 - workshop stream 2, operational update

Workshop W1Managing parents

The education law conference 2016

#BJEDC16

What we will cover

• Definitions of parent and parental responsibility

• Implications• Abusive parents• Complaints

Who is a parent?• DfE departmental guidance January 2016 –

“Understanding and dealing with issues relating to parental responsibility”

• Section 576 Education Act 1996

Who is a parent?• Section 576 – A parent for education purposes is:

- a natural parent or parents, whether married or not;

- any other person who has PR for the child (if not a natural parent);

- any person who has care of the child (and is not a natural parent).

• Care of child – lives with child and looks after them

What is parental responsibility?• PR defined in section 3(1) Children Act 1989 –

all rights, duties, powers, responsibilities and authority that a parent has in relation to child

• Applies to natural parents• Other persons can obtain PR through a child

arrangements order, being appointed a guardian, being named in an EPO, through adoption or via an agreement with natural parent or a court or care order

What is parental responsibility?• Civil partners have similar powers to married

couples• Married parents will have PR for any child born

after marriage• Father can obtain PR by registering the birth with

mother; subsequently marrying the mother or getting a court order or PR agreement

• More than one person can hold PR for a child• Those with PR can act independently of the other

and provide consent

Parental responsibility - disputes• Court orders will determine disputes over the

exercise of PR and can limit exercise of PR- Prohibited Steps Order- Specific Issue Order- Child Arrangements Order

• School need copies of orders in respect of child to ensure it acts within relevant framework

Implications for schools

• Education legislation places requirements on schools around parents not those with PR

• Unless there is a court order with express contrary provisions – treat all parents equally

• Applies irrespective of whether Mother and Father are separated – right to be involved in child’s education

Implications for schools• Parents have right to:- receive information – pupil reports- participate in statutory activities – parent

governor elections- to give consent to school activities- be involved in meetings regarding the child at

parents evening, exclusions, SEN etc- express preference for school to be attended- use complaints policy.

Implications for schools

• Parents also have responsibilities• Ensure regular attendance at school (or

face criminal sanctions)• Ensure attendance in the right uniform• Parents cannot use their position to

undermine relationship with other natural parents i.e. information sharing

Information sharing

• Parents have right to see “educational record” under Pupil Information Regulations 2005 (maintained schools)

• Data Protection Act 1998 will apply for information requests in academies or those requests made by the pupil

• Note child is data subject and has rights under the Data Protection Act 1998

Consent

• Usual practice to seek consent from resident parent unless non-resident parent wants to be involved

• Where disagreement between parents, schools should assume no consent but not get involved in dispute

• Schools can act in medical emergencies – do what is necessary to safeguard the child’s welfare. May be necessary to take action or seek consent from one parent/person without PR

Other issues

• Administration – get full details from all parents including legal name and any “known as” names

• Change of surname – require evidence of consent

• Parent elections must be open to all parents

Abusive parents

• Section 547 Education Act 1996• Advice on school security: Access to, and

barring of individuals from, school premises (DfE, December 2012)

Abusive parents

• Section 547 Education Act 1996 makes it a criminal offence to cause a nuisance or disturbance on school premises when the person has no lawful reason for being there

• Final step in dealing with abusive parents

Abusive parents

• Schools are private property• Parents have implied licence to come onto

school property at set times for certain purposes – dropping off, picking up, meetings

• Schools can define context of licence• Where there is poor behaviour exhibited

by parents, licence can be withdrawn

Abusive parents

• Case-law: (A v Wandsworth LBC) stated:- Parents should be warned re: behaviour- Barring/Banning should be provisional in

first instance and parent given right to make representations

- Full ban may follow and be imposed for a reasonable timescale and subject to regular reviews by school

Context of letter

• Set out specifics of offence• Explain school position on working with

parents but having duty of care to staff and children

• Explain proposed length of ban and right to make representations

• Provide details of who to contact

Communications

• If parents become abusive, can limit channels of communication to school

• Extreme cases – protection from harassment and injunctions (Lawrence Sheriff School, Rugby 2015)

• Involve other agencies – Police etc

Increasing use of social media

• Consequences not considered• One view taken as truth• Escalation into abuse/intimidation• Harm caused – quick and widespread• Safeguarding issues

Options for school

• Social media policy/changes to Code of Conduct for parents

• Query – can you really regulate parental behaviour? – Is damage done once posted?

Options for school• Speak to parents to obtain removal• Report abuse to social media operators• Legal action –

- Harrassment- Malicious Communications Act- Defamation- Injunctions- ASBO

Complaints

• All state funded schools must have a complaints procedure

• Maintained – section 29 Education Act 2002

• Academies – Independent School Standards Regulations 2014.

Complaints – basic requirements• Must apply to parents as a minimum in

academies and all persons for maintained schools• Set out clear timescales• Informal and formal consideration• Include a hearing before governors – one of whom

must be independent of the management and running of the school (academy)

• Allow parent to be accompanied• Allow panel to make and share findings with

parent and school

www.education-advisors.com

Talk to us…

Please note

The information contained in these notes is based on the position at February 2016. It does, of course, only represent a summary of the subject matter covered and is not intended to be a substitute for detailed advice. If you would like to discuss any of the matters covered in further detail, our team would be happy to do so.

© Browne Jacobson LLP 2016. Browne Jacobson LLP is a limited liability partnership.

Victoria Hatton | +44 (0)1392 45 [email protected]

Richard Freeth | +44 (0) 121 237 [email protected]

Hayley O’Sullivan | +44 (0)121 237 3994hayley.o’[email protected]

Workshop W2 Social media and your staff


#BJEDC16

This session

Risk areas and concernsRecent examples and common themesBreach of trust offencesPolicies to manage those risk areas

What are the risks?

Blurred boundariesInappropriate relationshipsReputational damage for your school

What are our concerns?

Mobile phone contactText contactSocial media contactSocial media exposure

Does it happen much?

Example from the last two years or so • Jeremy Forrest One female student 15 • Salford Stallion Three female students 14+• Phillip Barnwell One female student 15/16 • Emily Fox One female student 15


Example from the last two years or so (cont)

• Hayley Southwell One female student 15 • Kelly Burgess One male student

16/17• Luke Atkinson One female student 17


• At least 959 allegations made between 2008 and 2013

• 254 led to criminal charges• Numerous reported convictions in last three

months

Breach of trust offences

S.16-21 Sexual Offences Act 2003Any student under 18 at your schoolFour different offences, all very serious

Breach of trust – quick quiz

Four main offences based on relationships with students. For the offence to apply:

• Do you need to have direct contact with the student?

• Do they need to be in your class?• Is it enough simply for them to be a student at

your school?• Does it have to involve a teacher or could it be

wider staff?

When does the offence apply?

The offence applies if:• “A” looks after persons under 18 who are

receiving education at an educational institution and “B” is receiving, and “A” is not receiving, education at that institution

In other words:• You are “A” and “B” is any student aged under 18

at your school

What are the four offences

• Sexual touching of B by A (s.16)• Causing or inciting B to engage is a sexual

activity (s.17)• Engaging in sexual activity in front B (s.18)• For the gratification of A, causing B to watch a

sex act (s.19)

What is the penalty?

• Prison• Sex offenders register• NCTL sanction• Barred by the DBS from working with

children

Underlying themes

In each of the cases discussed earlier, one or more of the following were recurring themes:

• Over familiar teacher/student relationship• Social networking contact• Mobile phone and text contact• School culture

What are the risks with social media and mobile phone contact and how can we mitigate them?

What are the risk areas?• Social networking contact• Mobile and text contact

• School:• Over familiar teacher/ student relationships• Whistle blowing polices• Whistle blowing in practice• Staff awareness and confidence

Social networking

• Staff profile pictures • Staff posts• Teacher student contact• Open privacy settings• Friending• Photo sharing

What is your school’s approach?• Do you have a policy that covers friending

students?– What does it say?

• Do you talk to you staff about being sensible with:– Privacy setting?– Profile picture?– Posts?

Can you influence your staff in this respect?

Mobile and text contact

What is your policy for mobile phone contact?

• Sharing personal mobile phone numbers?‐ Teachers sharing with students and vice versa

• Is it ever appropriate to exchange numbers?• Is it appropriate to retain numbers in personal

phones?

Mobile and text contact• Is it appropriate to text students?• Is it appropriate to text students from personal

mobiles?• Photo sharing?• Do you have school/pool mobiles?• Is your policy/approach fit for purpose?

‐ What should it say?

School culture• How does your school approach these risks?• Can they be nipped in the bud?

• Does it always have to lead to criminal investigations or can it be stopped sooner?

Strong culture required

What is your school’s culture?

Whistle blowing policy and practice

• Do you have a robust policy in place?• How have you disseminated it and trained your

staff?• Do your staff feel comfortable enough to do it?• Will they be believed and supported?

What is your policy on social media use?

What policies and what should they say?• A policy to manage digital contact with students

to cover:‐ social media, mobile phone and text‐ email and instant messaging

• What do you want yours to say?• Clarity and simplicity are key• If you hit 100 words you have probably overdone

it…

Policy wording example

“Staff must not have any contact with current students or former students under 18 years of age online or through any form of social media. Communication with students should only be conducted through our usual channels and should be related to school matters only. Breach of this policy may result in disciplinary action up to and including dismissal.”

2. Personal reputational damage

Let’s talk about your staff…

• Do they have an online presence?

• Do they understand the privacy settings?

• Have they ever said something online you/they wish they hadn’t?

What are the risks?

1. Student contact online and allegations of inappropriate relationship with student(s)

2. Personal reputational damage

Social networking• Staff profile pictures

‐ What do they say about you?

Social networking• Staff profile pictures

• Staff posts‐ Do you think students search online for you

and your staff?‐ What would they find if they did?

Social networking• Staff profile pictures • Staff posts

‐ Do you think students search online for you and your staff?

‐ What would they find if they did?• Is there anything wrong with sorts of photo?

Social networking• Staff profile pictures • Staff posts

‐ Do you think students search online for you and your staff?

‐ What would they find if they did?• Is there anything wrong with sorts of photo?• Is that how you/your staff want students, parents

and colleagues to see them??

Social networking

• Staff profile pictures • Staff posts• Open privacy settings

Social networking

• Staff profile pictures • Staff posts• Open privacy settings• Posting and tagging by friends

Social networking

• Staff profile pictures • Staff posts• Open privacy settings• Posting and tagging by friends• Staff online comments

What can you do?• Make no contact with students via social

media, text or phone• Work with staff to ensure they actively

manage their profiles and privacy settings• Get them to talk to friends about posting and

tagging• Suggest they review their profile pictures and

conversations…

Talk to us…

Please note



Dai Durbridge | +44 (0)161 300 [email protected]


Workshop W3Effectively managing local authority relationships


#BJEDC16

The session’s focus

• In year admissions• Fair access protocol• Looked after children• SEN admissions• SEN funding

Key documents

• School Admissions Code 2014• School Admissions Appeals Code 2012• School Adjudicator decisions and annual

report• Case law

Rumours from DfE – consultation on new admissions code is likely… watch this space

• Section 433 Education Act 1996• No obligation to admit other than at the start of a

term unless parent has a good reason for wanting child to start during a term

• Good reason must include illness or other issue outside the parent’s control or where they lived outside the school’s area and it was not reasonable to access the school from the old address

• With good reason, may need to admit during term but it is a matter for the admission authority to decide upon taking account all the circumstances of the case (paragraph 17 Keeping Pupil Registers)

When do I have to admit?

• Paragraph 2.8 “all maintained schools…that have enough places available MUST offer a place to every child who has applied for one…”

• Paragraph 3.12 “where a governing body does not wish to admit a child with challenging behaviour outside the normal admissions round, even though places are available, it MUST refer the case to the LA for action under the Fair Access Protocol. This will normally only be appropriate where a school has a particularly high proportion of children with challenging behaviour or previously excluded children

Do I have to admit if under PAN?

• Use of Paragraph 3.12 will depend on local circumstances and MUST be described in the LA’s Fair Access Protocol

• Cannot refuse admission who is thought to be potentially disruptive or who has challenging behaviour just because they should be subject to statutory assessment

Do I have to admit if under PAN?

• Drawn up by the LA and agreed with the majority of schools in their area

• To ensure that outside the normal admissions round unplaced children are offered a place at a suitable school as soon as possible AND no one school takes a disproportionate number of pupils who have been excluded or who have challenging behaviour

• Protocol must include how the LA will provide for children with needs that cannot currently be met in mainstream education

Fair Access Protocol

• FAP takes place outside co-ordination and where the parent of an eligible child has not secured a school place under the usual in-year admission procedures

• All schools must participate in the FAP• No duty to comply with parental preference under

FAP procedures• FAP cannot require a school to operate a “1 in, 1

out” policy if they permanently exclude• FAP must set out arrangements for children who

are not ready for mainstream education


• Eligible children is for LA to determine but must include:- Children from criminal justice system or PRUs

who need to be reintegrated into mainstream education

- Children who have been out of education for two months or more

- Children of Gypsy, Roma, Traveller, refugee or asylum seeking families

- Children who are homeless


• Children with unsupportive family backgrounds from whom a place has not been sought

• Children who are carers• Children with SEN, disabilities or medical

needs (but without statements)


• Participation v blindly following• It is possible to refuse to admit following a FAP

referral• Outcome will depend on nature of school – LA can

direct maintained schools to admit where all other schools within a reasonable distance have refused admission. Subject to consultation and school may refer matter to Schools Adjudicator for determination

• LA cannot direct academies. May refer matter to DfE for a direction to be made under Funding Agreement

FAP – challenging decisions

Challenge LA position on any relevant ground:• FAP does not meet Code’s requirements• FAP not subject to consultation/agreement• Procedure followed was wrong/contrary to

Code/unfair• Unreasonable decision on suitability• Discrimination towards school – too many

children through FAP

FAP – challenging decisions

In Year Fair AccessDfE guidance “Fair Access Protocols: Principles – Process” November 2012• Local solution preferable• Schools should be treated fairly/equitably• Application to DfE within 15 days

DfE to consider:• whether protocol applied appropriately• whether Academy is suitable - numbers taken

already under FAP compared to other schools

Looked after children• Not covered by Fair Access Protocol• Clear duties on LA to find suitable placement at

same time as care placement• DfE guidance “Promoting the educational

achievement of looked after children” should be considered

• Emphasis on working together and grounds for refusal should be based on serious prejudice to the school

• LA has right to refer matter to DfE but cannot direct admission to academy on its own

• Request to direct admission

Looked after children• DfE “Request to direct admission of a looked after

child”• Consultation with academy• Seven days response time• Ground for refusal is serious prejudice to efficient

education• On referral to DfE, academy notified and given

seven days to respond• DfE decision based on LA acting appropriately

and whether serious/significant prejudice caused

Admission of looked after children• LA must have regard to “Promoting

achievements” guidance (July 2014)• Sets out principles which LA must follow• Change of placement does not always mean

change of education setting• Social care must minimise disruption especially at

Key Stage 4• Where change is required, care and education

placement should be arranged simultaneously with VSH

Looked after children

• LA have 20 school days to find a placement• Placement must be ‘best suited to child’s

needs’• No type of placement can be ruled out• Placement should be full time• Schools should be outstanding or good• Take account of child’s wishes and a visit

should be arranged

Looked after children

• Failure to follow statutory guidance is potential ground for challenge

• Evidence of LA not acting appropriately• Consider process followed and decision

over suitability

SEN and admissions

Current position• Children & Families Act 2014 – Royal Assent in

Spring 2014, Implementation from September 2014

• SEND Code of Practice (April 2014) – published and replaced by updated January 2015 version – in force from 1 April 2015 (292 pages)

• Code of Practice is statutory guidance to which a number of organisations including state funded schools must ‘have regard’

• DfE has produced a range of other guidance on the new SEN framework

Old framework• Education Act 1996• SEN Code of Practice (2001)• Inclusive Schooling guidance (2001)• Continues to apply to SEN statements by

virtue of transitional arrangements under 2014 Act

• Scope for confusion especially as 2014 Act treats academies differently

Pre-September 2014

• Education Act 1996 – Section 9 and Schedule 27

• Same process to be followed for maintained schools and independent schools (including academies)

• Consultation with LA – 15 days• Different tests to apply

Admissions – pre-September 2014• Schedule 27 applied• Maintained schools – only refuse to be named in

statement where they could prove admission would be incompatible with the provision of efficient education and no reasonable steps available to avoid incompatibility

• Required evidence of more than just adverse impact

• Unsuitability not an issue for schools• Weighted in favour of parental preference

Admissions – pre-September 2014• Independent schools – LAs only required to have

regard to parental representations and take account of problems caused to the provision of efficient instruction and inefficient use of resources (Section 9)

• Much reduced obligation – consider parental wishes not give effect to them

• Academies still needed to base case on incompatibility due to funding agreement

• High profile issues – Mossbourne Academy.

Key points• Paragraph 8.60 – parents may express a

preference for a maintained school…or make representations for a placement in any other school

• Paragraph 8.60 – LAs must comply with parental preference but only consider parental representations

• Academies treated as independent school – not maintained.

Key points• Paragraph 8.63 – LA must consult the preferred

school and must provide a copy of the proposed or amended SEN statement, the amendment notice and the appendices

• Make sure you have access to all required information. SEN statement is only an LA summary of the evidence – may be useful points to use in arguments against placement.

Key points• Paragraph 8.80 – LA must consult the governing

body of the school even if school is independent (8.84)

• Paragraph 8.80 – must respond within 15 working days unless request made within school holiday of more than two weeks

• Paragraph 8.80 – LA must carefully consider representations from governing bodies.

Key points• Paragraph 8.85 – LA should consider admission

where school is at or over PAN/operational capacity as admitting over PAN might be incompatible with the provision of efficient education or use of resources

• Paragraph 8.85 – must take account of issues from physical space restrictions and comply with infant class size legislation

• Paragraph 8.85 – must be carefully considered where LA is not the admission authority

• Evidence of consideration?

Key points - incompatibility• Inclusive Schooling guidance• Efficient education means providing for each child a

suitable and appropriate education in terms of the child’s age, ability, aptitude and SEN

• Other children means the children with whom the child will directly come into contact with on a day to day basis

• Schools must show that there are no reasonable adjustments to prevent the incompatibility

• Reasonable Adjustments – linked to disability discrimination – use Equality Act guidance.

Key points - incompatibility• Reasonable steps must be taken but without

compromising the efficient education of other children

• Incompatibility where behaviour systematically, persistently and significantly threatens the safety of others or impedes the learning of others

• Incompatible where teacher has to spend a disproportionate amount of time with pupil compared to rest of class even where TA is available to support.

Key points - incompatibility

Incompatibility – key question is whether the effect of the child attending the school, and any adverse impact on the efficient education of other children with whom they would be educated, would be so great as to be incompatible with the provision of efficient education

(R (Hampshire CC) v R (2009)

How to respond

• Review statement and evidence in appendices and concentrate on the potential impact on current pupils at the school

• Not about school being unsuitable for child but the child being unsuitable for the school

• Use standard format.

How to respondSet out:• breaches of SEN Code or legislation• Legal framework – S9 not Schedule 27 and impact• Academy details – size, no on roll, resources available

– building, classroom usage, staffing and expertise, class/year groups and sizes, approach to SEN and details of SEN resource

• Comparison with other local schools• Review of SEN statement and evidence with focus on

incompatibility• If appropriate, set out estimated costs of provision

Post-September 2014 – EHC Plans• On receipt of draft EHC plan, a parent may

request following types of school to be named:- maintained nursery school- maintained school or academy/free school- non-maintained special school- FE or 6th form college- DfE approved independent or specialist school

(s41)• May make representations for other schools but

LA has limited duty to consider under s9 Educational Act 1996

Parental preference• LA must comply with request unless:- unsuitable for age, ability, aptitude or SEN of

child/young person; or- attendance would be incompatible with the

efficient education of others with whom the child would be educated with or the efficient use of resources

• Efficient education is provision of suitable and appropriate education to their age and needs.

LA role• Must send school/college copy of draft plan and

allow 15 days as consultation period• Supporting evidence to be sent as well?• Must consider comments “very carefully” before

making a decision to name the school• Where provision may be secured by direct

payment delivered on school premises must seek agreement of school/college/nursery.

Reasonable steps• Taken from Equality Act 2010 and defined in 9.91

of SEND Code as number of factors to consider• Reasonable steps may not always be available to

the LA or school – behaviour which systemically, persistently or significantly threatens the safety and/or impedes the learning of others

• Change from SEN Code 2001 – PAN/class size reference omitted

• Not a simple decision to take – depends on circumstances and requires consultation with parents and young person.

Children & Families Act 2014• Section 39 – consultation and decision making as

a result of parental preference. Will require consultation – 15 days

• Guidance at paragraphs 9.78 – 9.87 of SEND Code 2015

• Section 40 – consultation where no parental preference

• Guidance at paragraphs 9.88 – 9.90• Consultation responses must be carefully

considered.

Children & Families Act 2014• Reasonable steps still required to be considered

to prevent incompatibility (9.91 – 9.92) but same approach as in Education Act 1996

• Incompatibility – same test applies – includes behaviour which systematically, persistently or significantly threatens safety of others or impeding learning of others (9.93)

• Decision must be based on circumstances of case (9.94)

Children & Families Act 2014• Need detailed response to object to placement• Same format as before

- legal issues- school information- pupil issues arising from EHC plan and

appendices- focus on incompatibility.

What if the academy is named• Admission – remember impact of Section 433

Education Act 1996. Duty to admit but not until start of academic term

• Complain to Secretary of State due to LA’s unreasonable exercise of functions

• Legal action – judicial review decision• Do nothing and await challenge.

SEN funding

High needs funding

• Cover SEN and AP• New system brought in 2013• Currently set out in DfE guidance “Schools

receive funding 2015 to 2016 – operational guide”

• Paragraphs 77 onwards deal with high needs funding

Principles

• Element 1 – AWPU/Pupil Funding• Element 2 – SEND Notional Budget• Element 3 – Top Up Funding

Element 1 and 2 = place funding

Element 1 – Pupil Funding

• Every pupil in school attracts an amount of money. Not a standard sum across England

• Core budget for each school advised to make general provision for all pupils in the school including those with SEND.

Element 2 – SEND Notional Budget• An additional amount within budget to meet

children’s SEND• Based on LA formula• Must be used to support SEND pupils up to

threshold of £6,000• Can apply to LA for additional funding if threshold

exceeded• Notional – no rules on how to use the money

however local offer should set out expectations.

Element 3 – top up funding

• If exceed threshold of £6,000 can approach LA for additional funding to meet the cost of provision

• Top up funding is “that which is required over and above place funding to enable a pupil with high needs to participate in education…” (paragraph 83)

• Issue of evidence.

Link to SEND Code• Schools have best endeavours duty to meet

special educational needs of pupils (s68 CAFA 2014)

• Paragraph 6.99 SEND Code makes it clear that do not have to make all provision from within own resources – should use top up

• LA has duty under s28/29 to co-operate with GB to assist in exercise of functions

Top up funding• Paragraph 90 of operational guide makes it clear

‐ where high needs pupil needs support which costs over £6,000 threshold, LA should provide top-up funding

‐ top up funding must be agreed with schools and reflect the needs of pupil, the cost of meeting those needs.

Top Up Funding

• Top Up Funding should also be paid where school has disproportionate number of high needs pupils (93)

• Top Up Funding should ‘mainly reflect’ support costs for individual student but also cost of any specialist facilities on offer (residential accommodation) (paragraph 125)

Top Up Funding• No set way of dealing with top up funding – varies

between LAs• Must relate to period of time the pupil is at school

(129)• Must be subject to written agreement including

duty to make top up payments in a timely and regular fashion – at least monthly (130)

• Breach of conditions of DSG if do not do so

Top Up Funding – what if it goes wrong

• Complain to LA• Complain to DfE/EFA under Education Act

1996• Exclude??

Talk to us…

Please note



Victoria Hatton | +44 (0)1392 45 [email protected]

Richard Freeth | +44 (0) 121 237 [email protected]
