Education Bulletin Brief Alerts May 2018

SEN Commons Education Committee Enquiry

This inquiry is intended to review the success of the reforms introduced in 2014, how they have been implemented and what impact they are having in meeting the challenges faced by children and young people with SEN and disabilities.  The closing date for written submissions is14 June. The details of the enquiry can be found here.


Up to 25% of state-funded schools that are neither academies or free schools are in deficit according to figures from the Education Policy Institute; and 2/3rds of these schools spent more than their income in the past year. Figures for academies and free schools show a slightly better picture but not a reassuring one.The Kreston network has produced figures for 450 academies which show that for 2017 show that 55% were in deficit before the effect of depreciation of assets like buildings, equipment and furniture was taken into account and that this rose to 80% when accounts were adjusted to include depreciation. It is only fair to say that these figures were disputed by the DfE.

Out of School

While in some areas of the country authorities and schools are taking a more relaxed view of school attendance, it is salutary to note that at Bristol Magistrates court a father was not only fined £150 but also electronically tagged for repeatedly failing to send his daughter to school and the child’s mother issued with a similar fine and 60 hours of community service within the next 12 months. It is a reminder that frequent absence may be as much a child protection issue as a school attendance issue: something reinforced by the recommendation of the coroner in the appalling London case of Chadrack Molo who starved to death by the side of his dead mother despite the efforts of the school to contact her by phone and by visiting the flat when his absence was noticed. The recommendation is to follow the one the school developed after the death: which is to contact the police if no response is obtained to the three telephone numbers the school holds for each child and to a home visit.

DfE statistics show that persistent absentees accounted for 37.6 per cent of all absence in 2016-17, compared to 36.6 per cent the year before. But on the bright side this is a decrease from 2011-12, when persistent absentees accounted for 43.3 per cent of all absences.

Application of Zero-Tolerance Policies

A recent decision by a tribunal makes difficult reading for schools attempting to follow a zero tolerance behaviour policy. On the one hand the tribunal rejected a claim for disability discrimination by a pupil with ADHD. The school’s policy had a legitimate aim: to ensure high standards of behaviour. Excluding the particular pupil who was the subject of the case was a proportionate way of achieving this aim. It also found that the school "made considerable efforts to put elements in place to change the way in which education was provided to the student".

But it still ruled that: “The application of the behaviour policy, in relation to X was leading to increasing conflict, such that his education was becoming a series of...detentions and exclusions, which he was finding inexplicable.

“It was being imposed rigidly...Rather than continuing with this inflexible application of its policy, the [school] should make reasonable adjustments for X, who was being put at a substantial disadvantage.”

and that the school should issue a letter of apology to X, for its failure to make reasonable adjustments. It should also organise training for all school staff, to include positive behaviour-management techniques. A copy of its decision would then be placed on X’s school records. Schools need to be clear that attempting to create a predictable system of school discipline is not the same as applying a code of conduct rigidly to all pupils.

Disclosure and Barring Service Update

The Disclosure and Barring Service has issued a Update on its guidance for employers, which includes advice on spotting counterfeit documents and advice on on-line applications. It can be found here.

Prosecutions for Health and Safety

We have mentioned before the increasing level of fines for breaches of health and safety at work. What is becoming clear is that breaches of health and safety are not merely a threat to the financial security of an organisation but also to individual managers. Section 37(1) of the Health and Safety at Work Act 1974 allows company directors, managers and officers to be prosecuted in person for offences committed by their organisation if the offence is proved to have been committed with their consent or negligence. The Health and Safety executive appear to be using this relatively new power with increasing energy. While prosecutions of individual workers fell to 1 in the period 2015-2016, the number of prosecutions commenced against directors and senior managers rose to 46, of whom 12 received prison sentences. School leaders and managers are unlikely to consent or connive at a breach of health and safety but they also need to make sure that if something does go wrong it does not do so through negligence in the organisation.

Tax on Tutors?

A study by the University College London Institute of Education has found that in England, poorer children from families in the bottom quarter of household incomes have a less than 10 per cent chance of attending a grammar school, compared with a 40 per cent chance among those  from families in the top quarter of household incomes. This was attributed in the study to the ability of parents in more wealthy families to hire tutors to train children to pass entrance examinations and the proposal the study makes is to impose a hypothecated tax for tutoring to pay for tutoring for students from less wealthy backgrounds. There appears to be little or no appetite in government for such a tax or indeed to accept the conclusions of the report.

The Children’s Commissioner

The Children’s Commissioner, Anne Longfield, in a speech to the Association of Heads of Virtual Schools added her voice to those concerned that schools are ‘off-rolling’ pupils to improve exam results and also drew attention to the damage done to children in care by a delay in getting them into new schools.

In a separate report she also criticises heavily the systems for supporting schools in the North of England and the funding of the schools there. She links the effects of a lack of support to the underperformance of Northern schools.


The date for the implementation of the General Data Protection Regulation (GDPR) is 25 May. It is a matter for considerable concern that of the 1,032 school leaders who responded to the survey organised by the Education Information Service, The Key, 50 per cent said they had not yet decided who would be their data protection officer. It is to be hoped that all schools subscribing to this publication have done so.

We continue to offer our Education GDPR pack with guidance and template documents. As soon as the final wording of the Data Protection Act 2018 is available we will work with all possible speed to produce a version which incorporates any changes which that Act requires. All updates until 25 May 2018 will be included in the price.

For further details or to register your interest in the GDPR guidance pack please contact

Education GDPR

Admissions (academies)

The ESFA bulletin reminds academies that to instruct clerks that run their admission appeals to include a link to the academy independent admission appeal complaints factsheet in the panel’s decision letter.

To limit the number of complaints made about independent appeal panels, and to ensure any complaints are dealt with as effectively as possible, the ESFA reminds academies and clerks that:

  • the panel must decide if the academy’s admission arrangements complied with the requirements set out in the school admissions code and part 3 of the School Standards and Framework Act 1998
  • the panel must then decide whether the academy’s admission arrangements were correctly and impartially applied to the case in question

To ensure that complaints about the panel can be administered quickly and efficiently academies are required to ensure their clerks keep an accurate and legible record of the appeal proceedings, including how the panel reached their decision. Reda more here.

No More Loans

The government has proceeded with a change in financial regulations which means that local authorities will no longer be able to pass a school deficit over to a sponsoring academy trust by making the school a loan instead of a payment. The amended rules now say the DfE ‘will not recognise as a loan any sum that has been provided in order to fund a deficit that has arisen because a school’s recurrent costs exceed its current income and where this has been agreed or an existing loan arrangement was revised on or after 22 March 2018.’ The burden of taking on a licensed deficit has apparently deterred trusts from taking on failing schools and the driver behind the change is the hope that this change will make it more likely that such schools will be able to find a sponsor.

Gender gap

With many qualifications (for example, that a trust which outsourced poorly paid ‘women’s jobs’ could show a smaller gap than a direct employer) Datalab has published an analysis of the gender pay gap in academies. It shows, for what it is worth, that:

  •  the median gender pay gap at the 471 academy trusts is 31.7 % in favour of men (this more than three times the national average)
  • 11 of the 471 trusts reported pay gaps that were in favour of women
  • 1 reported a pay gap of 19.2 % in favour of women
  • 3 reported that they had no pay gap
  • The widest gap is 62.7 % in favour of men
  • 1:10 trusts reported a gender pay gap of 50% or more in men’s favour.

For those struggling with uniform issues: it happens in the best places. At one law school there has been a row over the marking scheme for advocacy assessment. Students are told that women should not wear short skirts and must have “nothing [showing] above the knee”. Two points are deducted for a breach of these conditions. They should not wear“kinky boots,”stiletto heels, buckles, straps etc”.

Men lose points for having their jackets undone. “Ideally men’s jackets should be double-breasted or three-piece.’’ “Socks should be dark and plain.’’

To the criticism that this has occasioned, the response of one scholarly barrister commentator has been that barristers have always been subject to a rigorous dress code which has excluded fashionable clothes and appearance. In 1556 it was ‘ beards of more than three weeks growth and breeches of any light colour.’ By 1584, there was a ban on ‘great ruffs,’ ‘velvet facings’ and ‘long (n)or curled hair.’

Given that it is not a long time ago that a judge was fulminating over someone appearing in his court ‘in a Harry Potter costume’ the guidance may not be so foolish: something that may be worth explaining to rebellious youngsters.

And finally...

Alex Baratta, from the University of Manchester, has called for a "national discussion" on whether the Teachers' Standards should set out which types of accents and pronunciations are appropriate for teachers to use.

For further details or to contact the author please contact

Education Bulletin

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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