blake lapthorn academies conference, southampton - 18 june 2013

Elizabeth DavisPartner and Head of Schools team

elizabeth.davis@bllaw.co.uk

Summer conference for Academy Schools

18 June 2013New Kings Court, Southampton

#BLacademiesCon

Welcome

Zenna Atkins

• 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 agendaSmall 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

OverviewSchools 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

OverviewOther 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

OverviewSchool 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

OverviewSchool 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

Opportunitiesof 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 trendsFor 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 YouZenna Atkinszenna@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 20123 stage process:- Head teacher - Governing Body- Independent PanelWhat about the position for Academies?

Staff Misconduct

Fairness reigns supremeFirst 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 fairnessStaff 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

Pupil and staff misconduct

Tim WilliamsonAssociate

tim.williamson@bllaw.co.uk

The Regulator – teacher standards

Chris AlderPartner

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 2006Duty 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 requestedOffence following non referral / compliance without reasonable excuse punishable with a fine (Level 5)

The Regulator – teacher standards

Chris AlderPartner

christopher.alder@bllaw.co.uk

A practical approach to contracts

Mary ChantPartner

mary.chant@bllaw.co.uk

Key basics

Parties – are the details correct– how do you check

Dates – date of agreement/signature– start date

Parties’ obligationsIntellectual PropertyConfidentialityData ProtectionGoverning law, jurisdiction, disputesIs 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

A practical approach to contracts

Mary ChantPartner

mary.chant@bllaw.co.uk

The basics of hiring and firing employees

Debbie SadlerAssociate

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 monthsStatutory information

OR2.) Contract of employment/service agreement

More comprehensive3.) Handbook : contractual/non contractual

When things go wrong

EmployeeGrievance process:– Raise informally/formally– Meeting and decision– Appeal– Right to be accompanied

EmployerDisciplinary process:– raise informally/formally– Meeting and decision– Appeal– Right to be accompanied

Firing

ACAS Code : +/- 25% damagesDisciplinary policyGeneral 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

The basics of hiring and firing employees

Debbie SadlerAssociate

debbie.sadler@bllaw.co.uk

Current and future challenges in relation to Pensions

(and some crystal ball gazing)

Adrian LambPartner and Head of Pensions

and Trusteeship Services

adrian.lamb@bllaw.co.uk

THINGS WILL NEVER BE THE SAME AGAIN!

A =

AcademiesAgeing populationAuto enrolmentActuarial valuationsAdministering AuthorityAssetsAggregation (pooling)Alternatives and adjustments to TPS and LGPS?

Life expectancy rises by 44 days in just one year

Pensions issues

1.) Existing teaching staff2.) New teaching staff3.) Existing non-teaching staff4.) New non-teaching staff5.) Funding the past 6.) Paying for the future7.) Workers (not employees) and auto enrolment8.) 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 costsTPS 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 LGPSNo obligation to stay that wayWhat does the future hold?

Pooling won’t cover everything

Ill health – insurance option but otherwise expensiveSpreading periodWon’t get all the benefits (no stabilisation benefit)Early retirements

Auto enrolment – why has it been introduced?

UK workforce not saving enoughIncreased longevityState pension insufficientStakeholder (current duty)

What is the new employer duty and who does it apply to?

All UK employersAuto 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 periodPay 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 statusMonitor pay levels, variable hours contracts, etcContractors, 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 contribution3% employer contribution1% 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 paIgnoring 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 £124,864Which, 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 preventsLife assurance – separate/insured?Flexible benefits – lifestyle choices, etcLong term sickness/ill health early retirementPrivate medical insuranceOther 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 costsUncertain costs for the futureWill you be a winner or a loser?Flexibility?Auto enrolment – cost savings v. administrative complexityOpting out and under provisionDifferentiation, e.g. flexible benefits and workforce segmentationOne size may not fit all!

Current and future challenges in relation to Pensions

(and some crystal ball gazing)

Adrian LambPartner and Head of Pensions

and Trusteeship Services

adrian.lamb@bllaw.co.uk

Health and safety issuesJohn Mitchell

Partner, Regulatory practice group

john.mitchell@bllaw.co.uk

Topics

AsbestosWorking at heightSchool tripsWork experience

Asbestos management for schools

Still a significant problem for schoolsMore than 14,000 schools were built between 1945 and 1975 when use of asbestos was at its heightThe Department of Education estimates 75% of schools have some buildings that contain asbestosAny 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 inCan be released by vandalism, accidental damage or as materials deteriorateThrough maintenance work, repairs or improvementsFound in boilers, pipework, underground ducts and service risersPartitions 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 premisesNeed to identify where it is, its type and conditionAssess risks – is it likely to be disturbedManage 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 surveyorManagement survey – for normal occupation and useRefurbishment survey – when upgrading, refurbishing or demolishingA Register – takes information from the survey and records in a shorter more accessible format

Asbestos Management plan

Who is responsible for the management of asbestosRegisterSchedule for monitoring condition of asbestosWhat, when, howHow risks will be managed

Information, instruction and training

Any one whose work could foreseeably expose them to asbestosAny one supervising the aboveMaintenance peopleBasic awareness for staff i.e. not to disturb or damageKnow 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 schoolshttp://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); and2.) 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

laddersMost 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 wrongBhatt -v- Fontain Motors (July 2010)

Claimant employed by car workshopDefendant stored car bumper kits in a loft space that was difficult to accessAccess limited to the claimant and two othersSafe system of work was institutedClaimant accessed the loft in admitted breach of the safe systemClaimant fell and was injuredIssue: 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 regulationsProvide training and instructionNB 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 flowcharthttp://www.hse.gov.uk/falls/casestudies/guidanceflowchart.pdfSchools work at height practical guidancehttp://www.hse.gov.uk/falls/casestudies/guidancetables.pdfClassroom health and safety checklisthttp://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 trips1,500 teachers36% felt health and safety requirements got in the way of taking pupils on educational trips and visits to a great extentA further 41% to a small extentBoth 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 fancifulHave 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 etcPlacement 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 studentsIf 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 undertakingThis duty cannot be delegated

Work experience – the basics part 2

All your students will be “children” within the meaning of the lawAnyone on work experience is regarded as an employeeThis 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.htmRoSPA 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

Health and safety issuesJohn Mitchell

Partner, Regulatory practice group

john.mitchell@bllaw.co.uk

The Governance year

Liz BattenSolicitor

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/GovernorsTaking 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 ReturnAccounting requirementsDirectors– Appointments and retirements– Changes to Director details

Company secretaryChanges to your Articles of AssociationFilings with the EFA

The fundamentals – holding meetings

Law of meetings Different types of meetings– Board (i.e. Directors / Governors)– General (i.e. members)

AGMsFollow 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 propertyManaging and mitigating riskEquality and diversityInternal controls, policies and proceduresGetting the right mix of skills and experienceDefined roles and responsibilities

Good governance – financial controls

Fundamental duty to protect the property and secure its application for the objectsGuard 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-makingDelegation– Using committees– Responsibility remains with Directors/Governors– Terms of reference– Reporting back to the Directors/Governors

Managing conflicts of interestDifficult 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 MATImpact on existing school(s)Due diligencePractical considerations– Consistency and streamlining– Staffing considerations

Financial and risk awarenessLocal governing bodies– Schemes of delegation

Sponsored conversions

Any questions?

Liz BattenSolicitor

liz.batten@bllaw.co.uk

#BLacademiesCon