Tag Archives: 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.

 

 

Law rules, OK

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Yesterday afternoon I spent engaging in a series of events that skilfully blended the modern with the traditional. Oxford as a city seems quite good at such activities. The afternoon started with the Oxford Law Lecture. This was instituted some 14 years ago by the High Sheriff of Oxfordshire to take place on the same day as the Court Sermon. This year’s lecture was provided by Lord Igor Judge and discussed the ’rule of law’: a very appropriate topic in these times of constitutional upheaval.

Linking the lecture and the sermon later in the afternoon is the ceremony of the gloves, where a visiting high court judge is presented with a pair of gloves by representatives of the City of Oxford and the longer-operating of the city’s two universities. The actual ceremony takes place in the Dean of Christ Church’s lodgings, so is not open to the public. Interestingly, the Lord Mayor in full ceremonial robes and chain, preceded by the City mace, walks almost unnoticed from the town hall to Christ Church College along a most undistinguished route, past rows of people queuing at the city’s main conglomeration of bus stops.

All well and good, I hear you saying, but what has this to do with a blog that is about education? Well, I firmly believe that as public institutions schools are required to understand the concept of the rule of law and to apply it wherever possible. My campaign about the time it takes for some looked after children to be offered a school place is a case in point. Are they being denied their right to education for a responsible reason or because of procedures set up to benefit the school? Now, I am sure that the school might argue its procedures are for the benefit of the many and not the individual. But, every individual has the right to access education and to discriminate against those that move into an area mid-year by making it harder for them is to place an unfair burden on children for whom the move may not have been their fault.

I also believe that the draconian discipline measures reported as being introduced by some schools also flout the principle of the rule of law. A detention for reacting to a noise behind you with no right of appeal may be necessary in the short-term to regain control in a school that has descended into chaos, but should never form part of a discipline code that relies upon fear of making a mistake more than on an understanding of the need for order in classrooms as part of a long-term strategy. What sort of citizens are we trying to produce in our schools? Indeed, what type of teacher does such a system also produce? Rules should be kept because they are sensible for all and, thus, accepted by all.

Helping children internalise the understanding of why there are rules and laws is important. Developing an understanding of the purpose of laws, whereby adults don’t need to create rules obeyed just because, I say so, is to help young people to grow and develop. We warn the young child off for knowing the dangers of a hot stove; we expect adults to internalise the dangers. How we in education carry out our rules so that they are fair to all is a mark of a society that understands the rule of law as well as the rules of law.