The Education Act 2011 heralds significant changes in respect of school governance and beyond, all of which will impact directly upon parents, pupils, schools, local authorities and of course, the public law practitioner.
Most of the provisions in the Act will come into effect within the next two months, with those relating to the abolition of arms-length bodies commencing at the end of the financial year and the remainder at the start of the school year in September 2012.
The Act gives schools an increased power to search pupils including for ‘any other item which the school rules identify as an item for which a search may be made’, and to examine and delete data on an electronic mobile device (s2). In addition, under s5 schools no longer need to give 24 hours’ notice to parents of detentions.
Under s4 Independent Appeal Panels are replaced with Review Panels which can either:
(a) Uphold the decision of the head teacher/governing body,
(b) Recommend that the head/governing body reconsider the matter, or
(c) If it considers that the decision was flawed when considered in the light of the principles applicable on an application for judicial review, quash the decision and direct the responsible body to reconsider the matter.
Review Panels cannot therefore order reinstatement. It remains to be seen whether the new panels will be equipped to potentially consider public law principles when deciding the fairness or otherwise of a permanent exclusion, especially when those appealing (the majority of whom do so without legal assistance) may not themselves have the requisite knowledge or understanding to raise explicit public law principles. In addition, there is an argument that the referral back of an unlawful exclusion to a governing body will, in reality, rarely result in reinstatement, but rather, the new process will merely give schools a ‘second chance’ to justify an erroneous decision. One could also argue that this reform was unnecessary as in reality following the Bromley case and subsequent reforms to the statutory guidance, reinstatement is often not ordered even in instances where permanent exclusions are overturned.
There will also be even more academies under the Act. Schools are already becoming academies in far greater numbers (at the rate of four per school day in the in the month of July 2011 alone according to the DfE website), without necessarily considering the implications and the responsibilities that arise from academy status (for example concerning SEN and transport). The most significant enactments in respect of academies are:
- Under s37 + schedule 11, if a local authority considers a new school is needed, the presumption is (with some limited exceptions) that it will be an academy and the authority will no longer have any role in deciding on the promoter.
- Under s39, schools in federations can become academies without leaving the federation first.
- The Secretary of State can now order the closure of (and thus the conversion into academies of) maintained schools ‘eligible for intervention’, not just those in ‘special measures’: s44.
- If the governing body does not then consult on conversion to an academy, the Secretary of State can intervene: s56.
- 16-19 year old and ‘alternative provision’ academies can be established: s53.
- Academies no longer need to have a ‘specialism’: s52.
- Local authorities can still pay/support a school (e.g. through PFI) once an academy: s58.
- Local authorities can be required to pay the costs of board and lodging at boarding academies: s61.
- The Secretary of State can, by order, remove the protection for non- religious teachers in foundation or voluntary controlled schools which have become academies: s62.
- Adjudicators can consider objections to Academy admission arrangements: s64.
Secretary of State’s powers , regulatory bodies and other changes
The Act also:
The number of academies is set to continue to rise, including the number of faith academies, academy pupil referral units and boarding academies. This inevitably means less local authority control over the types of schools within its area. Parental choice is not always the driving factor in whether the number of academies increase, as the reality is that there are certain religious and commercial organisations which are in a significantly better position to set up academies than others (although most of the new academies are ‘conversions’ of existing, mainly secondary schools, despite the fact that those undertaking the conversion process now have much less attractive financial incentives in converting than those which did so earlier and undoubtedly benefitted financially.). Through their funding agreements, academies are obliged to follow the statutory codes on admissions, exclusions (although academies choose their own panels) and SEN, but the extent to which this is carried out is very much dependent upon the governing bodies of the academies, which have far greater autonomy than their counterparts within local authority maintained schools.
- Provides for the closure of the Local Government Ombudsman's school complaints service, and removes the duty to consider complaints about the curriculum from local authorities. General complaints about schools will now be made to the Secretary of State. (s45)
- Allows for pilots of direct payments for SEN education services (s75).
- Provides for the abolition of five arm's length bodies (the TDA, the GTCE, the QCDA, the YPLA and the SSSNB). Any remaining functions of these bodies will revert to the Secretary of State.
- No longer makes changes to the section 10 Children Act duty to co-operate with the local authority to promote children's wellbeing.
- Removes the duty on local authorities to appoint a School Improvement Partner for every school.
- Gives the Secretary of State power to order local authorities to change their scheme of finance for maintained schools: s46.
- Gives the Secretary of State greater power to make land available for free schools: s63 + schedule 14.
- Provides that the Schools Adjudicator will no longer be able to make a modification to a school’s admission arrangements in response to a complaint or referrals.
The outcome of the SEN pilots may, if successful, lead to greater changes and theoretically, greater control and choice for parents, within the current SEN framework, and echoes similar buy-in powers for users in the areas of health and social care. However, the reality is, that the true impact of much of these reforms remains to be seen.
Regarding school discipline, schools will have greater power in terms of being able to impose same day detentions without notice and disciplinary measures such as searching students and confiscation which may raise issues of privacy and confidentiality.
Permanent exclusions will be considered by review panels, tasked with making decisions based upon public law arguments. Local authorities may therefore wish to re-train review panel members to ensure that, as far as is possible, they are well versed in such principles. Whether or not review panels will be equipped to decide upon the fairness, rationality, lawfulness and reasonableness of a decision is open for debate. And in the instances where they are not, their decisions must be amenable to judicial review. The review panel system also has the (presumably unintended) potential for legal challenge in terms of Article 6 issues as it could be argued that the current proposals potentially deny an effective remedy to those who have been permanently excluded. The proposals also raise the issue of whether a governing body is capable of impartially re-considering decisions referred back to it. Further, what happens in situations where the review panel quashes a decision and the school refuses reinstatement? Again, judicial review would be a remedy for the pupil. A pleasing notion to public law lawyers but not, one would assume, to the current coalition government and to those on the receiving end of such litigation.