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Education Public Sector Update - July 2015

Woodland v Maxwell [2015] EWHC 820 (QB)

You may recall the 2013 decision of the Supreme Court which found that a school/local authority owed a non-delegable duty of care to its pupils, such that they would be liable for the negligence of independent contractors, in this case the swimming teacher and lifeguard, in delivering aspects of the curriculum to their pupils.

This hearing was to establish liability, and in particular to determine whether the teacher and/or lifeguard were negligent. Essex County Council were seeking an indemnity or contribution under the Civil Liability (Contribution) Act 1978 from the lifeguard on duty at the time, who was insured. The Claimant had not pursued a claim against the swimming teacher, as she was uninsured and lacked significant assets.

It was found that the swimming teacher's culpability for the incident was two thirds and the lifeguard's contribution would be one third.  As the swimming teacher was not being pursued for a contribution, and it had been established that the council owed a non-delegable duty of care to its pupil, the council would be responsible for two thirds, and the lifeguard (and therefore her insurers) will be required to one third of the council's liabilities in respect of both damages and legal costs.  A quantum hearing to establish the level of damages will follow, although it is anticipated that this may be some way off, given the severity of the injuries suffered.

Education and Adoption Bill

In the Queen's Speech the government introduced the Education and Adoption Bill, which was laid before Parliament on 3rd June 2015.  The Bill creates new powers for the government to intervene in failing maintained schools and so-called "coasting" schools (defined as those notified by the DfE as being coasting).  It is expected that this will be expanded on in due course through regulations. 

In summary, the key provisions are:

  • Maintained schools rated inadequate by Ofsted will (rather than may) be subject to academy conversion.
  • The Secretary of State (in addition to the local authority) can issue warning notices to maintained schools, and to determine the form of intervention (including determining membership of Interim Executive Boards even where the authority issued the notice).
  • Warning notices will also be issued to coasting schools.
  • The Secretary of State will have the power to direct governors and/or the authority to take specific actions to facilitate conversion.
  • There are new requirements for notification between a local authority and Secretary of State where warning notices are issued, with the Secretary of State being able to override the local authority.
  • As drafted, governing bodies lose certain rights to make representations to the Chief Inspector regarding warning notices.

It appears that the initial focus will be on converting inadequate schools into sponsored academies. The DfE have indicated that they anticipate approximately 1000 schools will be covered by the new provisions, although it is not clear how these figures are comprised. 

Nicky Morgan has also indicated that an 'immediate start' will also be made on the opening of 500 new free schools, and that Regional School Commissions will be given powers to bring in leadership support from other schools and heads.

DfE issues updated guidance: Disposal or change of use of playing field and school land

In May, the DfE reissued their guidance on protecting school playing fields and schools' powers to protect land, read here.

The revisions clarify the criteria on applying for permission to dispose of land or change the way it is used. Prior written consent of the Secretary of State for Education is required to dispose of, or change the use of, land used by maintained schools and academies, including playing field land. The Advice on Standards for School Premises issued in March 2015 sets out the regulations contained in the Independent School Standards and the School Premises (England) Regulations which state that suitable outdoor space must be provided to enable physical education in accordance with the school curriculum and to enable pupils to play outside.

NCTL guidance on teacher misconduct

NCTL have published June 2015 guidance on teacher misconduct, which is a guide for teachers subject to teacher regulation disciplinary procedures.  This guidance supplements the information in "Teacher misconduct: Disciplinary procedures for the teaching profession" and provides more practical information as to how the process works, read here.