Cutting class

Education law practitioners share the challenges and frustrations of their clients over the volume of regulations and legislation which burden schools, colleges and universities. In the 13 years since the decisive general election of 1997, there have been eight Acts of Parliament affecting educational institutions, countless statutory instruments governing everything from admissions, pupil referrals, the standards of school premises and transport policies, and tertiary legislation in the form of codes of practice covering areas such as special educational needs and admissions. At least three quasi-judicial bodies have been set up '“ the Special Educational Needs Tribunals, the Office of the Schools' Adjudicator and the Office of the Independent Adjudicator for Higher Education '“ before which schools and universities can be forced into expensive adjudications, tellingly with no right of appeal. Head teachers, college principles and vice-chancellors already have to cover everything from curricula and teaching standards, property and asset management, employees' performance and industrial relations, the student experience and child protection. Add the burden of complying with the enormous quantity of legislation emanating from Whitehall and their frustration is understandable.

Three areas demonstrate some of the challenges and the sheer variety of work in an education law practice: the growth of the role of adjudicators, student occupations and the potential changes to the face of education arising from the 2008/09 recession.

Admissions arrangements

For schools, the annual determination of admissions arrangements requires consultations with local panels, neighbouring schools, the local authority and, for 'faith' schools, the religious authority; the latter having been chosen by the government after consultations. Draft arrangements are prepared, circulated, amended if necessary and recirculated and then finally determined by the school's admissions authority '“ which is the local education authority for community schools and the governing body for voluntary-aided schools and trust schools.

Once the admissions arrangements are determined, however, a single person, even if they have no locus or standing and without being liable for the costs of any unsuccessful challenge, can lodge a complaint to the Office of the Schools' Adjudicator. The burden of proof is not upon the complainant. It is for the school to show that its arrangements comply with the Schools Admissions Code '“ the current version is 85 pages long '“ and the complainant does not have to attend any hearing or play any further role in the adjudication process. The process has been likened correctly to a child throwing a brick through a window and then simply running away. It leaves the school effectively involved in litigation with a body against which there is no appeal. Moreover, the adjudicator's role is not simply to ascertain whether the school's admissions arrangements comply with the code. He has wide-ranging powers to redraft the admissions arrangements, regardless of whether the result changes the nature or ethos of the school. The school's only remedy at law is to apply for judicial review of the adjudication on the usual '“ and limited '“ Wednesbury principles that the adjudicator took account of factors which he ought not to have taken into account, failed to take into account factors which he ought to have considered, or made a decision so unreasonable that no reasonable adjudicator should have made it. Given that the adjudicator is often dealing with matters affecting the human rights of parents '“ particularly when dealing with religious matters '“ the fact that there is no appellate body from his decision is one which is ripe for remedy in the next Education Act.

Student protests

For universities, the current political uncertainty, recession and hostility to tuition fees has seen a return to student protests and occupations. For the staff of an institution, a violent occupation or demonstration can be a traumatic event, with severe disruption to the running of the institution and physical danger to guards, academics and managers.

Universities' lawyers need to be proactive and able to mount an expedited without notice application at very short notice.

There is evidence that a recent round of student occupations of universities was coordinated by an external political party. In one university, the occupation lasted for two nights, with the students being aggressive, obdurate and refusing to leave the premises, despite requests to do so by their own NUS representative. The university had two options: either the immediate and forcible removal of the demonstrating students by the police or, in longer time, through the civil means of an application for a possession order against persons unknown, followed by police enforcement. In the end, the students left of their own accord.

It is likely that with further cuts in the education budget and with the G5 universities pressing for higher tuition fees, further occupations and demonstrations can be expected. Universities will need the active support of their legal team to deal with them.

Perhaps the biggest challenge facing educational institutions, however, has little to do with courts, tribunals and statutory instruments. Bill Clinton's slogan: 'It's the economy, stupid,' is never truer than today, with the economy scraping out of the 2008/09 recession and the government's deficit standing at eye-watering levels. That deficit, with the consequent cuts in government expenditure, will underlie the strategic decisions of educational institutions for the next decade.

Twinned with the economic background is a general election which is the closest since 1974. As then, political uncertainty will breed its own problems for state-run institutions and businesses alike.

The future of BSF projects

For schools, there has been a realisation '“ by educationalists and government alike '“ that reliance solely upon state funding for schools may not be a feasible long-term solution. The government will have spent up to £45bn on schools in the period 1997-2011. Its ambitious 'Building Schools for the Future' (BSF) programme '“ much of it through PFI initiatives '“ promised that all secondary schools would either be completely rebuilt or refurbished. Whether that process can continue will be open to question, with all political parties forecasting cuts in public spending of varying magnitude after the election. The Conservative schools spokesman has indicated that newer BSF projects may not survive even cuts from a re-elected Labour government '“ nevermind those that might be introduced by the Conservatives.

In addition to and arising from BSF, local authorities have looked to achieve economies of scale in their maintenance of their school estate through the transfer of facilities and IT management into centralised providers. New schools being built under the BSF automatically receive a full facilities management service as part of the PFI contract. Existing schools which are being encouraged also to join the centralised facilities/IT management are concerned that they will not receive an adequate or a cost-effective service once their staff have transferred to new external providers. However, the contracting out of such support services is an example of possible changes in the future.

Shifting power

Changes to funding will inevitably be followed by structural changes to schools. The Labour government '“ notably with the assistance of the Conservative opposition '“ took the first steps with the creation of sponsored academies and trust schools. Both types of school have greater freedom from local authority control, with external providers owning the school's land and buildings and appointing governors. Sponsors of academies have included churches, livery companies and even a carpet manufacturer. Inevitably, this has meant a greater say by the trustees and governors in the running of the school and its curriculum.

The general election may see a further extension of these structural changes with power moving directly to the school. The Conservatives are looking to the 'Swedish' style schools, which could be adapted through the academy model, with parents or businesses given the power and opportunity to set up their own schools.

The Labour Party is looking to 'accrediting' up to 500 school providers which will be able to run 'federations' of state schools. Already, private schools, universities and existing academies, as well as businesses, have applied for accreditation. Both are potentially radical options, with consequences for the ownership of the school's land, the employment of teachers and their terms and conditions and the nature and governance of the institutions.

The Liberal Democrats are more cautious, offering only 'sponsor-managed' schools which will be commissioned by and accountable to local authorities rather than central government.

Draconian cuts

For universities, the promise is one of draconian cuts in state funding. Even before the election, Lord Mandelson announced £950m cuts to higher education funding between 2010 and 2013, and told HEIs bluntly to cooperate with business in order to attract alternative funding. Further cuts are likely after the election. Universities will have to find other means of funding whether through raising tuition fees for British students, through raising the proportion of foreign fee-paying students as compared to British students, through closer cooperation with businesses and through ensuring that students complete their courses to enable state fees to be paid out. In addition, they will have to engage in cost-cutting measures such as closing unprofitable courses, increasing yield from estates and making redundancies.

The world of education will change over the next five years, with the involvement of a wider variety of providers including private businesses in state school education, closer links between schools, further education colleges and universities, and the prospect of cuts and more efficient funding across the sector. Inevitably, this will mean change also for education practices as educational institutions develop. Practitioners from all departments will have to adapt to an evolving education market and to the increasing variety of challenges facing their clients.

Copyright & permissions