Tag Archives: education law

Courts support the underdog

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From time to time the courts become involved in changing the direction of the education system in England. One such occasion, discussed previously on this blog, was the judgement of the Supreme Court on the issue of holidays during term-time. That judgement has redefined the contract for parents that ask or allow the State to educate their children in a more prescriptive manner than many might have thought possible.

Recently, there have been two more important judgements, albeit from lower courts, below the level of the Supreme Court. The Upper Tribunal, a court in all but name, as it interprets the law, has handed down what has been described as a landmark judgement in the treatment of pupils with SEND that involves a degree of aggressive behaviour linked to their disability: in this case autism. The case has been well reported, but you can read about it at https://www.equalityhumanrights.com/en/our-work/news/landmark-ruling-exclusion-disabled-pupils-schools

The case was brought under Section 28 of the Equality Act 2006 and the implications arising from the judgement should be on the agenda of governing bodies during the autumn term. The issue will turn on what are ‘reasonable adjustments’ that a school can be expected to make in educating these children. Obviously, or I suspect obviously, a special school catering exclusively for children with aggressive tendencies might be expect to make more adjustments than a small rural primary school faced with a five year old with such tendencies. However, if the five year old is living successfully in the community, the school is a part of the community and must now make clear what adjustment sit has made to deal with the education of the child. This might mean more specific training for the class teacher and any classroom assistants encountering the child in the course of their work. It might also mean dinner supervisors; office staff and anyone likely to come into contact with the pupil also receiving training.

The other recent case concerned Bristol City and its role in providing special education. The case was primarily about the issue of consultation over possible cuts to the City’s SEND budget, but the judge strayed into the area of the financing of education. You can read the whole judgement at https://specialneedsjungle.com/wp-content/uploads/2018/08/KE-others-v-Bristol-City-Council-Approvedjudgment.pdf As with the previous case, fairness for minority groups played a large part in the arguments before the court and in the reasoning of the judge. I can foresee more challenges in this area about cuts to SEND transport, based upon this judgement.

However, there was a rather curious exchange about the funding of education by local authorities that is reported in the judgement that suggests that it is not only in the realm of understanding popular culture and music that some judges and indeed other members of the bar may be slightly out of touch with currently realities.

Take this extract from the judgement from paragraph 98:

  1. Mr Tully explained that ‘The overall principle which the Council is seeking to follow is the principle that, if possible, the DSG (Dedicated Schools Grant) should pay for Schools Budget responsibilities.

However, as Ms Richards Q.C. correctly points out, this a simply a principle which the Defendant has chosen to follow i.e. a political choice and not a statutory requirement. As a consequence, it could be abandoned or varied, most pertinently in light of the results of appropriate consultation.

Surely, the DSG and the High Needs Block isn’t open to virement and by implication also isn’t open to being supplemented should local authorities ever find themselves with an excess of cash or indeed required to make choices about how they spend their income. If this section of the judgement is regarded as ‘obiter’ then it doesn’t matter, as it can be ignored, one would not want to raise the hopes of parents and others that the DSG is just an addition to a local authority overall income stream and not as its says, a ‘Dedicated Schools Grant’. Schools forum need to be consulted about the distribution of the DSG. How far is there also a need to consult the wider public?

The situation is of course complicated by the fact that some education expenditure, including on home to school transport, is provided for not from the DGS and High Needs Block within it, but from the general grant to local authorities and must compete with other services for its share of the cake. Here is issue is a fight for resources subject to the decision of the ruling group on any Council and is clearly subject to the need for consultation with the public and interested groups.

The person on the Clapham Omnibus, or is it in the Uber car these days, must be able to understand the logic behind the funding of our education system, lest they be deceived into thinking some things are possible that are actually not the case.

Despite some politicians feeling about European Courts, the courts and civil law plays an important part in defending liberties. At this time of financial cut backs it is also sometimes the way that minority groups can ensure that they are treated fairly.

 

 

Ministers and the Rule of law

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The judgement of the High Court in the recent case concerning term-time holidays is now available for all to read at http://www.bailii.org/ew/cases/EWHC/Admin/2016/1283.html The issue itself is on the way to the Supreme Court, where it seems likely that they DfE may be joined as an ‘interested party’ to the case. That makes the remarks by the Minister of State, Mr Gibb, quoted by the Guardian on the 9th June that “schools should continue applying the current regulations that allow parents to be fined” all the more interesting.

The recent case turned on whether the pupil had ‘regular attendance’ as that is what primary legislation requires from parents that entrust their offspring to the state school system for their education. Parents, it must be noted, are not required to send children to school to be educated, but if they do so it must be ‘regularly’. There seems to be no similar legal penalty that appears to be enforced for those that decide to home school or educate their children in some other way than sending them to school and that issue may need to be looked at if the government loses in the Supreme Court and reconsiders the current legal position.

Under the ‘rule of law’ governments are bound by the actions of the courts. In England, our common law system is founded on the judgements of the courts, and especially the superior courts, and these decisions change legislation enacted by parliament, usually by clarifying them. This is often because the way parliament legislates can mean Acts of Parliament are badly drafted and not enough time is spent at the Committee Stage picking over the Bill during the discussions. Interestingly, the House of Lords generally does a much better job of scrutinising legislation that starts there than does the other chamber.

So, should a Minister tell schools to ignore the decision of the High Court? He certainly won’t be able to tell them to ignore the judgement of the Supreme Court even if he doesn’t like it and even if he intends to try and change the law in a new Act of Parliament. I wonder if it was ill-judged on his part to so strongly support the government’s current position on term-time holidays, especially as it is only backed by secondary legislation, when LORD JUSTICE LLOYD JONES at the High Court had said in the judgement on the recent case at paragraph 19 that, “the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).”[of the relevant Education Act]. On that basis, perhaps most parents who have felt hard done by where a fine has been issued will now take their case to the Magistrates’ Court and plead ‘not guilty’, at least until the Supreme Court has ruled in the matter.

Realistically, it seems to me that ‘regular attendance’ has to be looked at in the round. The common sense view would seem to be that where a pupil has a good attendance record and the time off for holidays doesn’t impinge on important learning activities it could be treated no differently to the similar outcome if a pupil suffered a common childhood illness or a severe bout of flu. Where a child has a poor attendance record, then the holiday might just tip the balance between regular attendance and a failure to maintain regular attendance. In this case because it seems from the judgement that the child’s parents were no longer together and the other parent had already taken the child out of school that year, one can understand why the Council acted as it did, even where the child had an otherwise apparently very good and regular attendance record.

It is important that any revision of the primary legislation must define what is meant by ‘regular’. That will be a challenge. However, with home to school transport there has been a clear distance definition for very many years, so, about attendance, it should be possible to say something like, unless the pupil is unwell or attending a medical or dental appointment the parent of a child where the parent has asked the State to educate the child will need to ensure the attendance at school of the child by the required time every day that the school is open for the provision of schooling.

Finally, I support the view that where an offence is one of strict liability, as attendance at school is deemed to be, then it needs to be clear exactly what is required; it isn’t at present. I also dislike fixed penalty notices as a punishment because they take no account of parental circumstances and bear down more heavily on those that are less well off.

Surely, the real solution is for parents to accept the need for pupils to attend all the time and for travel companies to seek out vacations that cost no more in school holidays than during term-time. But, that is easier said than done.

 

 

What is reasonable?

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Until we see the full judgement in the recent case we won’t know what the judges in the High Court were thinking when they seemed to deemed it ‘reasonable’ for a parent to be able to take a child on holiday for a week during school term-time.

It is worth recalling that the overarching responsibility of parents is to see that their children receive an education when they are of compulsory school-age (there is a grey area for young people between the ages of 16-18 that will need clarification at some point.)

For young people between 5-16 the law says:

Duty of parents to secure education of children of compulsory school age.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a)to his age, ability and aptitude, and

(b)to any special educational needs he may have,

either by regular attendance at school or otherwise

The issue turns on the definition of ‘regular attendance.’ If the parent, as most do, hands over the responsibility to the State, what is the nature of the contract between the parent and the State?  The State agrees to provide the child with 190 days of schooling per year. It is accepted that children may be off sick and there may be other reasons for a child not to be present, but these will require ‘leave’ to be absent.

In the 1990s two things happened, Ofsted started reporting regularly on attendance levels at schools and the State wanted to drive up standards of education that were thought to be falling. As a result, the law was tightened to ensure regular attendance, with two defences; ‘sickness or unavoidable cause’ or ’with leave’. Historically, schools could grant up to 10 days leave, but that right was removed over time.

The government explained the basis for this change in relation to family holidays in the background to the secondary legislation making the change.

 The 2006 Regulations refer to parents applying for family holiday in “special circumstances” and to schools having discretion to grant up to ten school days of holiday per year. Many parents and some schools have interpreted this law as an automatic entitlement to an annual two-week term time holiday. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 amend the 2006 Regulations to clarify that leave of absence during term time shall not be granted unless there are “exceptional circumstances”.

They further explained that;

For pupils to benefit from education and achieve their full potential they must attend school regularly. School attendance data from 2010/11 showed that 90 per cent of pupils with an absence rate of less than 4 per cent achieved 5 or more A*- C grades at GCSE or equivalent. In primary schools, 4 out of 5 pupils with an absence rate of less than 4 per cent achieved level 4 or above in both English and mathematics.

As Oxfordshire County Council’s document on the subject for parents notes;

90% attendance means that your child is absent from lessons for the equivalent of one half day per week.

So how draconian should the State be? Personally, I think in the first year of schooling  when routines are being set and key topics may be being learnt for the first time every effort should be made to attend and taking time out may not be helpful either for the child or their classmates if it disrupts the teaching. As a rule of thumb after that I think where pupils are rarely or never off sick, the guidelines in the old 10-day rule probably provided a sensible rule of thumb for head teachers. After all, some parents cannot take holidays during school holiday period because of the nature of their jobs. However, if a child has missed a lot of time through sickness, taking time off turning term-time that year for a holiday isn’t a good idea and I would expect a head teacher to refuse ‘leave’.

Essentially, the legislation should encourage parents to make the most of the education on offer for their children without seriously affecting either their education or that of their classmates.

My parents only ever took me out of school for one week at the start of my third year in junior school and I never really understood the work on fractions that was introduced during that week. Had it been the last week of the summer term it might have been a different matter.

However, what is clear is that major changes to legislation really ought to be part of primary legislation and not created by secondary legislation and Ministerial fiat. Had that been the case here, Parliament could have discussed in committee what it meant by the phrase ‘attend school regularly’ and the acceptable reasons not to do so.

Perhaps, as a result of this parent’s action it will now have a chance to do so. They might also ask whether if the State isn’t able to fulfil its part of the contract it should make up the missing days? Lord Denning did discuss this in Meade v Haringey in 1979 at the end of the Winter of Discontent, but it never came to trial and a decision.