Blake Lapthorn Academies conference, Southampton - 18 June 2013

Elizabeth Davis
Partner and Head of Schools team
elizabeth.davis@bllaw.co.uk
Summer conference for Academy
Schools
18 June 2013
New Kings Court, Southampton
#BLacademiesCon

• Who I am
• The government policy landscape
• Grass routes responses
• Threats and opportunities
• Are we hitting the policy and
missing the point
What I hope we will cover today

The Government Policy agenda
Small state - Localism
• Financial stability
– Debt reduction
– Quantitative easing
– Cuts
• Decentralisation
– Health
– Education
– Planning
• Local action
– Big Society
– NCS
– Volunteering
– Community empowerment
• Customer is king
– Customer centric
– Customer pays
• Stop doing
– NDPBs
– Functions
– Services
• Cultural shift
– Market
– Competition
– Every one is a better provider than
the public sector
– Commissioning not provision
– Scrutiny

The Vision
•Every school in England - Academy status
should become “the norm” Moving from State
to Charity Governance
•New schools – Free Schools
•Local Authorities – commissioners, limited
education involvement
•New national curriculum or is it an old
national curriculum
•New GCSE’s, AS,- new performance
frameworks
National overview of the
government Policy on Education

• Types of Academies
• Sponsored
• Converter
• University Technology College
• Studio Schools
• Free School
• Technical Academy
• Others
• Trust
• Foundation
Overview
Schools no longer run by the state

• Free Schools
• Proposed to DfE by parents, community groups,
new schools
• University Technical Colleges (UTCs)
• For 14-19 year olds
• Vocational & Technical
• University led
• Local employer engagement
• Studio Schools
• 14 to 19 tailored
• Target disaffected young people
• Technical Academies
• Like UTC’s but 11 to 18
Overview
Other Academies

• National leaders of education (NLEs)
• Outstanding head teachers
• With the staff in their schools support schools in
challenging circumstances
• NLEs work to increase the leadership capacity of
other schools to help raise standards
• Attempting to re create networks
Overview
School improvement and support

• Teaching Schools
• National network of teaching schools,
modelled on teaching hospitals
• Outstanding schools funded to lead the training and
CPD of teachers and heads
• Training school and teaching school models
brought together
• Leading responsibility for providing and quality
assuring ITT in their area
Overview
School improvement and support

• Collapse of LA education services
• Non academies top sliced for nothing
• Unfair funding
• Messed up admissions and allocations
• Lost disaffected children
• Lack of support resources
• Reduced affordability
• No crisis support
• Isolated leaders
• Risk averse governance
• Going bust
• No system for managing failure
• Isolated Primary schools
Threats
of the new schools environment

• Re-engineer system and schools
• Freedom form interference
• Collaboration
• Creating new economies of scale
• Ability to innovate
• Invest in what you want not what you
are given
• Manage the work force more robustly
Opportunities
of the new schools environment

Collaboration
• Why collaborate?
– Save money
– Share knowledge
– Share expertise
– Learn from others' mistakes
– Exercise greater influence
– Benchmark
– Easier to innovate
– Address entrenched problems
– Strength in numbers – reduces risk
– Access to capital

Ways to deliver and structure
collaboration
• Commissioning agreements
• Joint ventures
• Clusters
• Soft and hard federations
• Shared services agreements
• Joint contracts
• Operating companies

• Power shift
• User driven learning
• User lead learning
• Any time, anywhere learning
• Custom made learning
• Living credible CV’s
• Global teaching global learning
• Employer needed skills
• Application of information and Knowledge
Global education the future trends
For today its all about structure and standards, for
tomorrow its about…

Never lose sight of the important
• Delivering the best and relivant education for
the pupils
• Getting the best results
• Attracting, developing and keeping the best
teachers
• Facilitating parental engagement
• Making the most of the money
• Keeping it simple

Thank You
Zenna Atkins
zenna@zennaatkins.com

Pupil and staff misconduct
Tim Williamson
Associate
tim.williamson@bllaw.co.uk

Pupil Misconduct
Does the school have a policy?
If so, stick to it..!
The Head needs to be able to support their decision by
relying on evidence obtained so:
- Investigate and obtain witness statements
- Decide if / when there is to be a meeting with P
- At the meeting - Allow P to have their say / have sight of
the evidence
- Are you going to permit P to be represented?
- Who by? Do you want lawyers involved?

Pupil Misconduct – the initial hearing
The pupil should know:
- What they are alleged to have done
- What the evidence is against them
- By which time they must respond
- When the hearing will be
- That they will be given an opportunity to present
their case
- What criteria will be applied in determining
‘sanction’.

Pupil Misconduct
What happens if a pupil is excluded?
Regulations need to be applied – from 1st September
2012 these are:
- School Discipline (Pupil Exclusion and Review)
(England) Regulations 2012
3 stage process:
- Head teacher
- Governing Body
- Independent Panel
What about the position for Academies?

Staff Misconduct
Fairness reigns supreme
First considerations will relate to safeguarding…
Do you need to notify Local Authority Designated
Officer (LADO)?
Do you need to notify the Police?
Co – operate with the investigations of other
agencies

Staff Misconduct
Procedure will be all about fairness
Staff must know:
- what allegations they are required to meet
- by which time (if at all) they are required to respond
before any meeting
- when such a meeting will be
- that they will have an opportunity to test the evidence
- standard of proof to be applied
- sanctions against published criteria

The Regulator – teacher standards
Chris Alder
Partner
christopher.alder@bllaw.co.uk

Regulators
General Teaching Council
Teaching Agency
National College for Teaching and Leadership
Disclosure and Barring Service

NCTL
Requirement to refer?
Case investigation and progression
Professional Conduct Panel Hearings
Teacher Standards

Disclosure and Barring Service
Who?
What is their role?
Duty to refer - Section 35 SVGA 2006
Duty to Co-operate – Section 37 SVGA 2006 Schedule
1 sets out what information needs to be provided but:
- My advice would be to respond by sending what has
been specifically requested
Offence following non referral / compliance without
reasonable excuse punishable with a fine (Level 5)

A practical approach to contracts
Mary Chant
Partner
mary.chant@bllaw.co.uk

Key basics
Parties
– are the details correct
– how do you check
Dates
– date of agreement/signature
– start date
Parties’ obligations
Intellectual Property
Confidentiality
Data Protection
Governing law, jurisdiction, disputes
Is the agreement complete

Goods/Services
Fully and accurately described
Do they reflect what you’re expecting
KPIs/standards
Acceptance testing
Expert help

Financial terms
Price/method of calculation
Payment
– when
– lump sum/instalments
– in advance/arrears
Interest on late payment
Changes to price

Term/Termination
Fixed/Indefinite Term
Period of notice
Reasons for termination
– default/breach
– ‘insolvency’
– other

Liability
Likely loss/damage
Exclusions and limitations of liability
Direct, indirect & consequential loss
Financial cap

Final thoughts
Assessment of risk
Use of standard contracts
Contract management

The basics of hiring and firing
employees
Debbie Sadler
Associate
debbie.sadler@bllaw.co.uk

Hiring
Identify vacancy, prepare job description and person
specification
Advertise vacancy appropriately
Standard application process
Short listing and interviewing
Offer of employment : conditional?

Hiring
Documentation:-
1.) Statement of particulars
Legal requirement within 2 months
Statutory information
OR
2.) Contract of employment/service agreement
More comprehensive
3.) Handbook : contractual/non contractual

When things go wrong
Employee
Grievance process:
– Raise informally/formally
– Meeting and decision
– Appeal
– Right to be accompanied
Employer
Disciplinary process:
– raise informally/formally
– Meeting and decision
– Appeal
– Right to be accompanied

Firing
ACAS Code : +/- 25% damages
Disciplinary policy
General principles of fairness
Fair reason
+
Fair procedure
↓
Fair dismissal

Firing
Unfair dismissal : potentially fair reason
– Conduct
– Capability (performance or ill health)
– Redundancy
– SOSR
– Illegality
From April 2012 : need 2 years continuous service
although are exceptions

Firing
Exit packages
– A claim or threat of a claim
– Is it in the interest of the Academy?
– Considered assessment of circumstances

Practical Guidance
Review recruitment procedures
Check application procedures
Check employment rules and procedures
Consider issues of discrimination in relation to
training, promotion, access to benefits, dismissals etc
Training

Current and future challenges in
relation to Pensions
(and some crystal ball gazing)
Adrian Lamb
Partner and Head of Pensions
and Trusteeship Services
adrian.lamb@bllaw.co.uk

THINGS WILL NEVER BE THE SAME AGAIN!

A =
Academies
Ageing population
Auto enrolment
Actuarial valuations
Administering Authority
Assets
Aggregation (pooling)
Alternatives and
adjustments to TPS and
LGPS?

Life expectancy rises by 44 days in just one year

Pensions issues
1.) Existing teaching staff
2.) New teaching staff
3.) Existing non-teaching staff
4.) New non-teaching staff
5.) Funding the past
6.) Paying for the future
7.) Workers (not employees) and auto enrolment
8.) Flexibility?
9.) Levelling down?

Pensions - Some things stay the same but
some are quite different
Existing staff allowed stay in TPS or LGPS - with
associated costs
TPS is unfunded but costs still have to be met!
LGPS
– Pick up the tab for the past
– Possible separate calculations
Pooling may be possible for now but ….
Different approaches by different councils?
Oxfordshire consultation, others doing the same/similar
New non-teaching staff allowed to join LGPS
No obligation to stay that way
What does the future hold?

Pooling won’t cover everything
Ill health – insurance option but otherwise expensive
Spreading period
Won’t get all the benefits (no stabilisation benefit)
Early retirements

Auto enrolment – why has it been introduced?
UK workforce not saving enough
Increased longevity
State pension insufficient
Stakeholder (current duty)

What is the new employer duty and who
does it apply to?
All UK employers
Auto enrol all eligible jobholders into a qualifying
scheme
– workers (not just employees)
– aged between 22 and State Pension Age (SPA)
– earning enough to pay income tax
Waiting period
Pay contributions

Jobholders and entitled workers
“eligible jobholders”
– Workers aged between 22 and SPA earning over tax
threshold
“ineligible jobholders”
– Workers aged between 16 and 21 or SPA and 74
and/or earning between LEL and tax threshold
“entitled worker”
– Workers earning less than LEL
Monitor worker status
Monitor pay levels, variable hours contracts, etc
Contractors, agency workers, etc

How will employers comply?
What is a qualifying scheme?
Occupational or personal
Quality standards
– DB = minimum benefits – LGPS and TPS OK
– DC = total 8% contribution of “qualifying earnings”
4% worker contribution
3% employer contribution
1% tax relief
– Qualifying Earnings – between LEL and UAP
– Contracting out ceasing complicates matters but
should be OK if stay with LGPS and TPS

The obvious questions
How many will opt-out?
What will 8% of Qualifying Earnings buy at
retirement?
How many 22 year olds will have a 46 year
contribution history at State Retirement Age?
What will the 2017 review bring?
– Compulsion?
– Increase in employer contributions?
– Increase in member contributions?
– Widening of Qualifying Earnings definition?
60

What do I get for my money?
Median earnings in the UK for full time workers end 2011 -
£24,024 p.a.
8% of qualifying earnings (£24,024-£5,564) are £1,477 pa
Ignoring pay growth (just to keep it simple) but adding in 3.5%
real investment growth net of charges (broadly, SMPI
assumptions) Gives a fund after 40 years of saving of £124,864
Which, today, would buy a 65 year old male a joint life, inflation
linked annuity of….
But rich people live longer!
A 65 year old male retiring today, with a pot of £1,500,000 - the
Lifetime Allowance, could buy a joint life, inflation linked annuity
of….
61
£ 307 per month (just over 15% of salary)
£ 2,831 per month (£33,972 per year)
Annuity rate sources: Money Advice Centre, Comparative Tables

…phasing in defined contributions
Up to Oct 2017 = 2% (1% employer contribution)
Up to Oct 2018 = 5% (2% employer contribution)
Oct 2018 onwards = 8% (3% employer contribution)

And other benefits/options?
Salary sacrifice – NI savings but current law prevents
Life assurance – separate/insured?
Flexible benefits – lifestyle choices, etc
Long term sickness/ill health early retirement
Private medical insurance
Other savings?
Affinity group benefits?

Pensions and other benefits for Academy
staff - the issues, challenges and options
TPS and LGPS for existing staff … and for all
new staff?
Unknown liabilities for the past – pooling v.
individual costs
Uncertain costs for the future
Will you be a winner or a loser?
Flexibility?
Auto enrolment – cost savings v. administrative
complexity
Opting out and under provision
Differentiation, e.g. flexible benefits and
workforce segmentation
One size may not fit all!

Health and safety issues
John Mitchell
Partner, Regulatory practice group
john.mitchell@bllaw.co.uk

Topics
Asbestos
Working at height
School trips
Work experience

Asbestos management for schools
Still a significant problem for schools
More than 14,000 schools were built between 1945
and 1975 when use of asbestos was at its height
The Department of Education estimates 75% of
schools have some buildings that contain asbestos
Any building built before 2000 can contain asbestos

Consequences of poor asbestos
management
Sherbourne School for Boys - fined £60,000 in
relation to prosecution brought by the HSE.
Cost of decontamination - an IT cable was installed
through a ceiling void contaminating the majority of
the ceiling voids throughout the building. The clean
up cost was £280,000.
During electrical rewiring over the summer,
contractors were seen with bags of asbestos waste.
Asbestos contamination had spread through the
whole school. It cost the school and council £4.54
million as a direct result of the contamination.

When it becomes a risk
Only when fibres are released into the air and
breathed in
Can be released by vandalism, accidental damage or
as materials deteriorate
Through maintenance work, repairs or improvements
Found in boilers, pipework, underground ducts and
service risers
Partitions or cladding of steel framed buildings, fume
cupboards and window and door surrounds

Control of Asbestos Regs 2012
Duty on those responsible for maintenance or repair
of premises
Need to identify where it is, its type and condition
Assess risks – is it likely to be disturbed
Manage and control the risks

Who is the duty holder?
For academies, it is usually the academy trust.
Where budgets for building management are
delegated to the school by an academy trust, the duty
to manage is shared between the school and the
trust.
The extent of the duty depends on the nature of the
agreement and the responsibilities for repairs and
maintenance.
Where duty is shared, cooperation and
communication is key to effective management.

What should we have?
A survey: conducted by a qualified asbestos surveyor
Management survey – for normal occupation and use
Refurbishment survey – when upgrading, refurbishing
or demolishing
A Register – takes information from the survey and
records in a shorter more accessible format

Asbestos Management plan
Who is responsible for the management of asbestos
Register
Schedule for monitoring condition of asbestos
What, when, how
How risks will be managed

Information, instruction and training
Any one whose work could foreseeably expose them
to asbestos
Any one supervising the above
Maintenance people
Basic awareness for staff i.e. not to disturb or
damage
Know to report for example if damage to ceiling or
floor tiles

Guidance
Asbestos Management in Schools guidance from the
department for education
Asbestos management checklist for schools
http://www.hse.gov.uk/services/education/asbestos-
checklist.pdf
HSE website

The meaning of “work at height”
Work at Height Regulations 2005: to be “work at
height”, the work must satisfy two conditions:
1.) It must involve:
- working in any place, including a place at or
below ground level; or
- obtaining access to or egress from such a place,
(except by a staircase in a permanent
workplace); and
2.) The employee must be somewhere where they
could fall a distance liable to cause personal injury.

Work at height – practical examples
Standing at higher than ground level to:
– put up displays (common incorrect solutions are desks
or chairs)
– close windows (a common incorrect solution is a stool)
– carry out repairs and maintenance work, often using
ladders
Most of these would involve falling a height of far less
than two metres, yet the risk of injury can be great

Work at height – the legal hierarchy
1.) Avoid work at height if it is reasonably practicable to
carry it out safely not at height; otherwise
2.) Carry out the work at height from an existing place;
otherwise
3.) Provide sufficient work equipment for preventing a
fall occurring, otherwise, if that equipment does not
eliminate the risk of a fall occurring
4.) Provide sufficient work equipment to minimise:
– the distance and consequences of a fall; or where it is
not reasonably practicable to minimise the distance
– the consequences

Work at Height – how things go wrong
Bhatt -v- Fontain Motors (July 2010)
Claimant employed by car workshop
Defendant stored car bumper kits in a loft space that
was difficult to access
Access limited to the claimant and two others
Safe system of work was instituted
Claimant accessed the loft in admitted breach of the
safe system
Claimant fell and was injured
Issue: was the Defendant liable given that the
Claimant had admitted failing to follow the system?

Work at height – other obligations
Ensure that work at height is
– properly planned
– appropriately supervised
– carried out in a manner which is safe
Select appropriate work equipment in accordance
with the criteria in the regulations
Provide training and instruction
NB this list is not exhaustive

Work at height – practical suggestions
For low level work the HSE suggests:
– “elephant foot” stools
– kick step type stools
– low steps with hand rails
Generally, the HSE suggests that ladders are
permissible if:
– the use of more suitable work equipment is not justified
because of the low risk and short duration (between 15
and 30 minutes depending upon the task)
– Schedule 6 of the regulations is observed

Work at height – additional resources
Schools work at height flowchart
http://www.hse.gov.uk/falls/casestudies/guidanceflow
chart.pdf
Schools work at height practical guidance
http://www.hse.gov.uk/falls/casestudies/guidancetabl
es.pdf
Classroom health and safety checklist
http://www.hse.gov.uk/risk/classroom-checklist.pdf

School trips and outdoor learning activities
November 2011: Teacher voice survey - asked if
health and safety requirements had got in the way of
taking pupils on school trips
1,500 teachers
36% felt health and safety requirements got in the
way of taking pupils on educational trips and visits to
a great extent
A further 41% to a small extent
Both HSE and DfE anxious to tackle myths about
legal action

HSE: tackling the Health and Safety myths
HSE published a policy statement confirming that
they fully support schools arranging a wide range of
school activities and that it wants to encourage all
schools to remove wasteful bureaucracy imposed on
those organising trips and activities.
Focus is on how real risks are managed and not on
the paperwork.
Prosecutions only arise from the most serious
breaches of the law and are extremely rare – 2 in 5
years.
Civil claims for compensation are a separate issue.

Planning for a school trip
Focus on real risks when planning trips – not risks
that are trivial and fanciful
Have proportionate systems in place so that trips
presenting low risk activities are quick and easy to
organise and higher risk activities (such as those
involving climbing, caving or water based activities)
are properly planned and assessed.
Take a common sense and proportionate approach.
Case studies on HSE website.

Example of Managing Risk
Case study from HSE website: 103 year 11 pupils
travelling from Dorset to London’s East End as a part
of the urban environment aspect of their human
geography GCSE studies.
As part of the planning they considered:
– Travel disruptions
– Pupils (and tickets) getting lost or becoming separated
from the main group
– Pupils becoming ill or how injuries might occur
– The impact of bad weather
– Contingency plans

Management of the Risks
Travel arrangements
Communication
Supervision
Emergency procedures
Basics

Parental consent for all offsite activities
Written consent from parents is not required for
pupils to take part in the majority of offsite activities
organised by a school during school hours and are a
normal part of a child’s education.
Parents should be told where their child will be at all
times and of any extras if it is required.

Parental consent for all offsite activities
Written consent is usually only requested for activities
that need a higher level of risk management or those
that take place outside school hours.
DfE one-off “consent form” which schools can ask
parents to sign when a child enrols at the school.
http://media.education.gov.uk/assets/files/doc/d/dfe%
20consent%20form.doc
Opt out rather than opt in.

Work experience – role definitions
Education employer
– The governing body of the academy
Education establishment
– The academy
Work experience organiser
– The agency organising the work experience, e.g. the
academy, an EBP, an LEA etc
Placement provider
– The organisation where the work experience will take
place

Work experience – the basics part 1
The board must ensure that no non-employee is
exposed to risks to their health and safety as a result
of the academy’s conduct of its undertaking (s.3
HSWA 1974)
The people to whom this duty is owed includes
students
If it is the practice of the academy to organise or
require students to have work experience, the work
experience is part of the academy’s undertaking
This duty cannot be delegated

Work experience – the basics part 2
All your students will be “children” within the meaning
of the law
Anyone on work experience is regarded as an
employee
This means that all the rules relating to the
employment of children and young persons apply, in
particular:
– Prohibited placements
– Young person risk assessment

Work experience – implications of the s.3 obligation
if an EBP or equivalent is being used
The academy must ensure that:
– The organiser is competent
– The organiser will make the necessary arrangements
for assessing the suitability of placements
– It provides the organiser with information about the
students to enable it to manage their health and safety
in the placement
– Students are properly briefed on what to expect and to
provide feedback

Work experience – implications of the s.3 obligation
if the academy is the organiser
It must ensure that:
– the placement provider complies with health and safety
law
– students are not exposed to risks to their health and
safety
– placements are suitable in terms of welfare and health
and safety
– the students will not be undertaking any prohibited
activities
– visiting school staff are not exposed to risk

Work experience – additional resources
HSE guidance (currently under review):
– http://www.hse.gov.uk/youngpeople/workexperience/inde
x.htm
RoSPA Young Workers:
– http://www.youngworker.co.uk/index.htm
DfE guidance on the employment of children:
– https://www.gov.uk/government/uploads/system/uploads/
attachment_data/file/193326/child_employment09.pdf

The Governance year
Liz Batten
Solicitor
liz.batten@bllaw.co.uk

What will we be covering in this session?
The fundamentals
– Articles of Association
– Filing requirements
– Holding meetings
Good governance
– What makes an effective board?
– Financial controls
– Decision-making
Duties and responsibilities of Directors/Governors
Taking on other schools – key considerations

The fundamentals – Articles of Association
Why are your Articles important?
What do the Articles cover?
– Objects and powers
– Restrictions on benefits
– Members
– Directors (multi) / Governors (single)
– Conflicts of interest
– Administrative provisions
Making changes to the Articles

The fundamentals – filing requirements
Annual Return
Accounting requirements
Directors
– Appointments and retirements
– Changes to Director details
Company secretary
Changes to your Articles of Association
Filings with the EFA

The fundamentals – holding meetings
Law of meetings
Different types of meetings
– Board (i.e. Directors / Governors)
– General (i.e. members)
AGMs
Follow the Articles
– Notice
– Written resolutions
– Who is entitled to attend/vote
– Quorum
– Majority required

Good governance – an effective board
Collectively responsible
– Performing well, solvent, compliant
– Aware of legal responsibilities
Acting prudently to protect assets and property
Managing and mitigating risk
Equality and diversity
Internal controls, policies and procedures
Getting the right mix of skills and experience
Defined roles and responsibilities

Good governance – financial controls
Fundamental duty to protect the property and secure
its application for the objects
Guard against fraud and mismanagement with proper
financial procedures
– Setting strategy
– Approving and reviewing budgets
– Control over income and expenditure
Structure for areas of responsibility, lines of authority
and lines of reporting

Good governance – decision-making
Collective decision-making
Delegation
– Using committees
– Responsibility remains with Directors/Governors
– Terms of reference
– Reporting back to the Directors/Governors
Managing conflicts of interest
Difficult decisions
– Careful process
– Professional advice

Duties and responsibilities of Directors /
Governors
Duty of care
– Act in best interests of Academy Trust Company
– Act reasonably and prudently in all matters
– “Exercise such care and skill as is reasonable in the
circumstances”
– Deciding policy, strategy and plans
Compliance
– With the Secretary of State’s requirements
– With the law
Director / Governor training

Taking on other schools – key considerations
Overall responsibility for the MAT
Impact on existing school(s)
Due diligence
Practical considerations
– Consistency and streamlining
– Staffing considerations
Financial and risk awareness
Local governing bodies
– Schemes of delegation
Sponsored conversions

Any questions?
Liz Batten
Solicitor
liz.batten@bllaw.co.uk
#BLacademiesCon

Blake Lapthorn Academies conference, Southampton - 18 June 2013

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