Independent Schools Update - Spring Half Term 2011

Key Notes for Heads, Governors and Bursars on:

• Litigation risk and the consumer culture
• Vetting and Barring and CRB reviews
• Social Networking – staff and schools beware!
• Restructuring/redundancy – minimise your risk
• Solar PV: save costs, be green, make money!
• Safeguarding Update – the interim Munro report
• UK Border Agency Tier 4 consultation - latest

For further information, or to discuss any of the issues in this update, please contact:

Helen Tucker
Partner, Head of Education
T: +44 (0)117 3218078
F: +44 (0)117 3218028
h.tucker@ashfords.co.uk

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Litigation Risk and the consumer culture

There is a clear upward trend for parents and/or pupils to threaten legal action relating to educational provision, often linked to a request for some form of compensation, such as reduced fees. This may be couched in terms of educational negligence or breach of contract, and relate to issues such as academic progress, pastoral care (commonly alleged failures to take appropriate action in cases of bullying), or to make reasonable adjustments where a pupil has, or may have, a disability. This trend is also reflected in the wider education context, with recent cases against universities and law colleges alleging that failures in provision lead to lower grades than expected, and damage to career prospects. Cases can range from those with merit, to those which appear to have no foundation at all. There may be genuine misconceptions as to the educational offer, and those who simply believe that paying private school fees should guarantee A grades and/or particular university places.

Protective Steps to consider:

• Check any assertions made in written material about what the school offers (e.g. on the website, prospectus etc)
• Communicate with pupils and parents as soon as issues arise; manage expectations, such as likely impact on grades or disciplinary action
• Ensure procedures are in place so that concerns raised by parents are passed to relevant staff, investigated, and followed up as appropriate
• Keep clear, objective records of meetings or calls where issues are discussed
• Document any follow-up action taken by the school, and communicate outcomes as appropriate
• Address any issues with the education provision (e.g. staff absence), taking steps to minimise the impact on pupils

Whilst, in most cases, issues arising would not be found to be negligent in legal terms, independent schools generally seek to maintain a far higher standard of provision. Allegations of negligence can be very damaging to the school’s reputation, and responses to concerns raised must be handled with care.  

Helen Tucker has significant experience of advising schools in relation to complaints, threats and, claims, and can provide tailored training for schools in risk management. Please contact Helen for further information.

Vetting and Barring and CRB reviews

The parallel reviews of the CRB and Vetting and Barring regime have now been published. Whilst the proposals are not yet in final form, it appears that the two schemes will be brought together to provide a more streamlined barring and checking service. Key changes may include the removal of the requirement to register with the Independent Safeguarding Authority (ISA), and some scaling back of those covered by the barring scheme.  It is proposed that CRB checks will become portable and linked to a new continuous updating system, which may reduce the administrative burden on schools. The current requirements for referring individuals to the ISA are likely to remain the same. The government has confirmed that guidance on the revised scheme will be provided before any changes take effect, and it is anticipated that the new scheme will be in place by early 2012.

Social networking – staff and schools beware!

The National Association of Head Teachers recently announced that schools should introduce rules about how teachers use social networking sites.  The announcement highlighted the fact that newly qualified staff may not fully appreciate the risks arising from the use of sites such as facebook, given the adjustment from student to professional life. However, staff who are less familiar with social networking may be similarly vulnerable, and Heads need to be aware of the wider risks, and put protective measures in place.

The risks include allegations of inappropriate contact with pupils, and resulting legal/disciplinary action and reputational damage; issues of cyber-bullying and harassment, and the inadvertent release by staff of personal information (such as photographs) to other staff colleagues and pupils.

Protective steps for schools:

• Set clear policies and guidance for staff and pupils on the appropriate use of ICT and electronic media (such as mobile phones). This should be reflected across all relevant policies and procedures, e.g. Acceptable Use of ICT, Anti-Bullying, Safeguarding, Behaviour, School Visits, staff capability and discipline, and monitoring ICT usage
• Consider providing practical training e.g. on privacy settings and profile management

Staff restructuring/redundancy - minimise your risk
In the current economic climate, and with staff costs being the most significant item of expenditure for most schools, many will consider some form of restructuring, redundancies, and other ways of reducing costs.  Where these processes are not managed correctly, schools may be exposed to the risk of a range of Employment Tribunal claims (including unfair dismissal, discrimination and protective awards), and grievances, which can be very costly both financially and in terms of management time.

The following steps will help minimise these risks, and ensure that the processes schools need to follow run as smoothly as possible:

• Plan ahead
• Identify the school’s future requirements
• Consider whether there is any natural wastage
• If 20 or more roles are at risk, follow the 'collective consultation' rules
• Identify appropriate selection pools for redundancies
• Set objective, independently measurable selection criteria
• Plan the process and set appropriate timescales for each step, to include fair and proper consultation
• Determine what information should be provided to staff and when, in accordance with the rules
• Consider whether it will be necessary to involve unions and other employee representatives
• Consider whether there is any suitable alternative employment within the school for teachers/administrative staff who will be at risk
• Consider how redundancies impact the workload of others, and how this will be managed.

Our specialist Employment Team has experience of advising independent schools in relation to these processes.  If you would like any further information about these important issues, please contact:
 
Charles Pallot
T: +44 (0)1392 333906
F: +44 (0)1392 336906
c.pallot@ashfords.co.uk

Solar PV – save costs, be green, make money!

One way schools may be able to save costs and generate a new income stream is by taking advantage of the opportunities afforded by the Feed in Tariff Scheme (FITS), which applies to renewable energy sources such as solar panels (PV cells) or wind turbines.  FITS are government guaranteed payments for every unit (kwh) of electricity produced, whether or not used by the school, and a guaranteed payment for every unit provided to the grid.  For an indication of the value of the scheme, schools may want to look at the Energy Saving Trust's cash back calculator:  http://www.energysavingtrust.org.uk/Generate-your-own-energy/Cashback-Calculator.
The scheme will also support green policies, and help to reduce the school's carbon footprint.

For those joining the scheme by April next year, the government guarantees the funding for 25 years.  Whilst a recent statement indicated a review of this policy (for those with over 50kw capacity), this is unlikely to impact any school scheme, and rather appears to be directed at commercial developers, who set up large-scale solar PV farms to profit from the scheme, which had not been intended. As the guaranteed rate comes to an end in April 2012, prompt action is needed to obtain planning permission, install equipment, deal with legal issues, and arrange connection in time to take part. 

There are several legal complexities: from a physical point of view, the roof space will normally have to be south facing, and not obstructed from the sun at any time by trees or buildings. Energy companies prefer buildings neighbours cannot affect by their actions, e.g. by building near a boundary or planting a tree, and will want to be certain that nothing can prevent them from operating the panels. Ascertaining whether planning permission is required may be complicated. Schools normally have ‘permitted development rights’ and can make changes to school buildings without planning permission.  However, a very careful check will need to be made to ensure any PV installation complies with the relevant criteria to fit within those rights.

If you would like to discuss this further, please contact:
 
Mark Northey
T: +44 (0)1392 333881
F: +44 (0)1392 336881
m.northey@ashfords.co.uk

Safeguarding Update – the interim Munro report

On 1st February Professor Munro published the interim findings of her review of child protection arrangements, with a focus on whether the administrative burden of safeguarding had become a ‘tick box’ exercise, effective in inspection compliance, not safeguarding children.  She considers whether this can result in less direct contact time with children, a false sense of security where checks are complete, and a reluctance to follow intuition.

Professor Munro emphasises the complex nature of child protection, and the importance of exercising professional judgement when issues arise. Whilst it is clear that safeguarding will remain a firm focus of the inspection framework, we can expect some rationalisation of the procedural requirements and the guidance in ‘Working Together’, with an increased emphasis on outcomes and effective inter-agency working. The extent of any changes will not be clear until the final report, which is due in April.

UK Border Agency Tier 4 Consultation - latest

At the end of 2010 the UK Border Agency launched a public consultation relating to the student visa system, with a particular focus on non-EEA students on courses below degree level.  It appears that any tightening of the process is unlikely to affect independent schools, who were praised by Immigration Minister, Damian Green, for their high rates of compliance.  In particular the UKBA indicated that they were unlikely to tighten any requirements on the child visa route. The consultation process closed at the end of January, and Mr Green has advised that the results will be published in the coming weeks. We will be looking in particular at comments relating to concessions for child students on A level courses over the age of 18, whether pupils will be required to return home to obtain a visa extension, and whether there may be a relaxation of the rules to enable child students to self-declare their maintenance and qualifications.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.  Links to other sites and resources provided by third parties are included for your information only.  We have no control over the content and accept no responsibility for them.