Education Update - May 2014

This Education Update comments on:

• New safeguarding guidance: Keeping Children Safe April 2014.
• Further DfE Consultation on revised SEN and Disability Code April 2014.
• Court of Appeal determination of 'public expenditure' in Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398.
• May 2014 Guidance for local authorities on maintained schools causing concern.
• Permission to judicially review an academy order R (Governing Body of the Warren Comprehensive School) v Secretary of State for Education [2014] EWHC 338 (Admin).

New Safeguarding Guidance: Keeping Children Safe

The new Department for Education ("DfE") guidance "Keeping children safe in education" is to be read alongside Working Together to Safeguard Children 2013.

The guidance replaces Safeguarding Children and Safer Recruitment in Education (December 2006) with immediate effect, and full compliance will be expected by Ofsted by September 2014.

The new guidance:

• Reflects the revised definition of 'regulated activity' following the implementation of the Protections of Freedoms Act 2012.
• Requires that all staff in schools and colleges read at least part one.
• Includes a new pre-employment check (via the Employer Online Service) for teachers to ensure that they are not subject to a prohibition order.
• Sets out specific requirements for the provision of particular information to be provided on induction for staff, including temporary staff and volunteers. Of particular note is the duty to provide a staff behaviour policy/code of conduct, and it is unclear as to the form this can take.
• States staff child protection training is no longer required to be every 3 years; rather it should take place regularly and in accordance with the LSCB advice.
• Emphasises that anyone can make a referral to children's social care; school policies and procedures will need to be amended to reflect this.
• Notes that schools should have appropriate safeguarding responses in place for children who go missing in education settings.
• Includes a new section titled 'Allegations of abuse made against teachers and other staff'; which appears to replace previous DfE guidance on this matter.

Those with responsibility for safeguarding at schools should be familiar with the provisions of this guidance, and take appropriate steps to ensure compliance by September 2014. Schools will need to review their safeguarding policy, safer recruitment procedures, the single central record, and ensure all staff have been provided with part 1 of the guidance.

A copy of the guidance can be accessed at:

https://www.gov.uk/government/publications/keeping-children-safe-in-education

Consultation on revised SEN and Disability Code

On 16 April 2014 the DfE published a further consultation in relation to the additional revisions it proposes to the SEN and Disability Code of Practice: 0-25 years. The consultation follows a significant response to the previous consultation which closed in December 2013. The further revisions made to the draft Code include amendments to reflect the implementation of the Children and Families Act 2014.

Chapter 4 is of particular importance to local authorities as it covers duties relating to the preparation, publication and review of the Local Offer. This section has been strengthened, for example to add to the duty to publish comments a requirement to publish the response to comments received, which must include details of the action the authority intends to take (on which they should consult).

Responses to the Consultation must be provided by 6 May 2014. Documents can be accessed at www.education.gov.uk/consultations.

It is anticipated that the results will be published later in the Summer and the revised Code will come into force in September 2014.

Wide interpretation of "public expenditure" taken by Court of Appeal

On 2 April 2014 the Court of Appeal held in the case of Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398 that public expenditure, for the purposes of section 9 Education Act 1996, should be interpreted widely. It held that it was reasonable that the intention was for all expenditure incurred by the local authority to be taken into account when making such considerations. Accordingly, when comparing costs of two possible school placements for a child with SEN, care costs met from public expenditure outside of the local authority’s education budget should also be taken into account. The court remitted the matter back to the First-tier Tribunal for reconsideration.

This will be relevant to local authorities when considering which revenue streams to take into account when considering a request by parents to name an alternative school in a statement (or EHC plan).

Guidance for local authorities on maintained schools causing concern

On 2nd May the DfE published statutory guidance (under s72 Education and Inspections Act 2006 "2006 Act") which local authorities must have regard to where a maintained schools is causing concern https://www.gov.uk/government/publications/schools-causing-concern--2.

It covers "schools causing concern" (s44 Education Act), those which are "eligible for intervention" under Part 4 of the 2006 Act, and also other maintained schools about which the local authority and/or Secretary of State have serious concerns.

The guidance provides sets out information relating to the powers and duties of both local authorities and the Secretary of State for dealing with maintained schools and academies. It covers the situations in which local authorities should intervene where they have been unacceptably low standards of performance, including the use of Warning Notices and Interim Executive Boards.

The guidance makes clear the DfE's expectation that academy status is the preferred route for achieving improvement for such schools, with the support of a strong sponsor.

High court grants permission to judicially review an academy conversion order

The case of R (Governing Body of the Warren Comprehensive School) v Secretary of State for Education [2014] EWHC 338 (Admin) raised some interesting issues relating to the Secretary of State’s power to order a poorly performing school to convert to academy. This is the first legal challenge to an academy order.

In this case the school was in special measures, and the Secretary of State decided it should convert to academy status together with another school. The governing body opposed the proposal.

The High Court had to determine whether it might be unlawful in the circumstances for the academy order to be made before the consultation had taken place. Another proposal to save the school (by federating with another school) was already under consultation, but the Secretary of State felt this would not achieve the necessary results.

The High Court determined that it was important for both consultations to be concluded, preferably jointly or at the same time, before any decision or academy order was made. Accordingly, permission for judicial review was granted.