Update: education

The past few months have seen a number of notable developments in education law, both in the children and schools sector and in further and higher education. The new coalition government has worked quickly to address the education sector, and the next 12 months will witness significant changes in the way that schools are run in England. The Office of the Independent Adjudicator for Higher Education has also been challenged on key jurisdictional and public law issues, and the decisions of the courts have been surprising.

The route to academy status

The Queen's Speech of 25 May 2010 indicated: 'Legislation will be introduced to enable more schools to achieve academy status and give them greater freedoms over the curriculum.' This led to the Academies Act 2010 and, following agreement by both Houses on the text of the Academies Bill, it received Royal Assent on 27 July 2010.

The Act enables all maintained schools to apply to become academies, with schools rated 'outstanding' by Ofsted being pre-approved. The academies will be funded by central government rather than the local authority. The Act allows the secretary of state to require schools that are eligible for intervention to convert into academies, provides for secondary, primary and special schools to become academies, and, importantly, requires governing bodies to engage in a consultation process before converting to an academy. There is much debate about how this consultation process will work and whether interested parties, such as parents, will have a fair consultation before conversion takes place.

The Act provides for the application process to the secretary of state and the requirement for him to provide reasons for refusing an application, but no duty to provide reasons for approving an application. Questions arise as to what would happen if a school changed its mind and wished to withdraw an application. Currently, there is no provision to withdraw an application.

On admissions and exclusions, academies will be obliged to abide by the Admissions Code but will be their own admissions authority. They will also be required to comply with exclusions guidance. The requirements for compliance are set out in the model funding agreement, which is changing daily at the moment, but which will ultimately set out the terms on which the academy must function.

With regard to special educational needs, academies will have funding allocation and will be expected to organise and pay for special education provision themselves.

The academies are free to set their own curriculum as long as it is 'broad and balanced'. They are also able to set terms and conditions for teachers and other staff.

The Department for Education has stated that all academies will be subject to inspections by England's schools inspectors Ofsted as other schools are. The government has announced that all outstanding schools will no longer be subject to routine Ofsted inspections '“ and the first wave of new academies will all have been judged outstanding.

The results of their public exams will continue to be published.

The Act extends to England and Wales but only has application to England. While sections of the Act do technically extend to Wales, the effect of the provisions will only permit an academy to be established in England, so it will have no practical impact on, or application to, the organisation of schools in Wales.

Special educational needs

The courts have, once again, looked at the application of article 2 of the first protocol of the European Convention of Human Rights (ECHR) in the recent judgment of A (Appellant) v Essex County Council (Respondent) & National Autistic Society (Intervener) [2010] UKSC 33 on appeal from [2008] EWCA Civ 364. A suffered from severe special needs including autism and serious learning difficulties. He ended up being out of school for a period of 18 months. He brought a challenge stating that that period of 18 months amounted to a denial of his right to access education as required by the ECHR. The courts found against him, stating that a contracting state had no positive obligation to provide education specifically catered for those with special needs.

In AW v Essex County Council [2010] UKUT 74 (AAC), the court dealt with the question of whether the First-tier Tribunal (Health, Education and Social Care Chamber) had correctly determined that because A had reached the age of 19, she was no longer a child within the meaning of the special needs legislation and therefore the First-tier Tribunal had no jurisdiction to deal with her special educational needs. The court held that the local authority must consider all relevant factors including the person's age and nature and stage of education before determining whether or not to cease to maintain the statement of special educational needs.

Assault against teachers by pupils

In H v Crown Prosecution Service [2010] EWHC 1374 (Admin), the court dealt with the rights of teachers in a special needs environment, where pupils suffer from emotional, behavioural and social needs. The child in this case had attention deficit hyperactivity disorder and conduct disorder. He assaulted a teacher on two separate occasions. During the trial, the teacher asserted that, by working in a special needs school, he had not consented to being assaulted. The court held that that was correct, and that a teacher working in a special school does not impliedly consent to being assaulted.

Admissions

Admission to school continues to be a hot topic in the press, and parents continue to fight to achieve the best possible school place for their child. In 2008/09 there have been some interesting statistics which indicate that parents are more inclined to challenge decisions on admissions than ever before. About 38,000 appeals were lodged for infant and primary school admissions. Approximately 25 per cent succeeded. In secondary schools, about 50,000 appeals were lodged and 33 per cent succeeded. These statistics are available from the Department for Education website, which gives more information on appeals lodged as compared to the previous year.

Exclusions

The Department for Education recently released the latest statistics on exclusions from school. In 2008/09, about 6,550 children were permanently excluded from primary, secondary and special schools; 307,840 fixed-period exclusions took place from state-funded secondary schools; 39,510 fixed-period exclusions from primary schools; and 15,930 fixed-period exclusions from special schools.

Higher education

There have been several cases brought before the Administrative Court by students who have been unhappy with decisions made by the Office of the Independent Adjudicator for Higher Education (OIA).

R (On the application of Shelly Maxwell) (Claimant) v Office of the Independent Adjudicator (Defendant) & University of Salford (Interested party) [2010] EWHC 1889 (Admin) dealt with the issue of whether or not the OIA was under any obligation to make a finding on disability discrimination and whether or not the university breached any disability discrimination legislation.

The court held that there was no obligation on the OIA to form a view and express an opinion on the strength of any disability discrimination claim, although, in the general exercise of its discretion, it could do so. If a student wished to obtain a finding on disability discrimination, and, if successful, be awarded a remedy for any such discrimination, then the appropriate arena was the county court. The judge in the county court was placed to hear the evidence and to make a finding.

In Stephen Budd v Office of the Independent Adjudicator for Higher Education [2010] EWHC 1056 (Admin), Mr Budd was concerned about the marking process in his examinations. He brought his complaint to the OIA where he asserted that the OIA must undertake a thorough investigation of his complaint including reviewing the examination and the marking process to ensure that the university had reached the correct conclusion about his mark. The OIA did not review the examination paper or calculation of mark but rejected the complaint on the basis that it could not interfere with academic judgment. Its jurisdiction was to review any decision of a university on an assessment of fairness and procedural regularity.

The court held that the OIA had a duty to review complaints and could do so on the evidence before it. It was not necessary or realistic to describe the OIA as having a discretion to engage in a review of the merits. The OIA could also make any decision based on the evidence before it and if, at any point, it required further evidence, it should request that evidence. However, just because the student requested that the OIA call for a particular piece of evidence, it did not mean that the OIA was obliged to ask for and review that piece of evidence before making a decision. That was entirely a matter for the OIA as to whether it required, or not, that piece of evidence in coming to its decision.