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The Academies Act has confirmed the Government’s intention
to bring Academies within the Freedom of Information Act (FOIA)
regime. No timeframe has yet been announced, but when the
provisions are in force, academies will doubtless join the growing
number of maintained schools facing vexatious requests for
information.
There is no doubt that the FOIA is a useful tool for the public to
obtain information about public bodies that would not otherwise
be available. However, it is subject to abuse by a minority of
individuals intent on harassing or causing inconvenience to
public bodies. Complying with repeated and troublesome
requests can be draining and demoralising for all involved, but
there is a solution! If a request is “vexatious” or has already been
complied with within a reasonable period, there is no requirement
to provide the information asked for, and a recent case decided
by the Information Rights Tribunal offers further encouragement
for those suffering these requests.
What is vexatious?There is no definition of the term “vexatious” in the Act itself,
but the Tribunal has referred to the normal usage of the word -
to describe activity that is likely to cause distress or irritation,
literally to vex a person to whom it is directed. In the Hossak
case the Tribunal stated that “for the request to be vexatious
there must be no proper or justified cause for it.”
Significantly, therefore, the exemption is concerned with whether
the effect of the request is vexatious and not whether the
applicant is vexatious. It is the effect on the public authority
which is relevant, rather than the attributes of the individual.
When deciding if a particular request is vexatious, the background
history between the applicant and the public authority (i.e. the
school) should be considered, as the context of the request may
provide the grounds for it being vexatious, rather than the request
itself. For example, a request that appears to be intended simply
Vexatious Requests
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EducationBulletin Education Law News Autumn 2010
CONTENTS
1-2 Vexatious Requests
3-4 Exclusions
4 Academies and Consulting with Your Staff
5-6 Free Schools
“There is no definition of the term “vexatious”in the Act itself…”
to reopen issues which had been disputed several times before
would suggest it is vexatious.
General principlesThe Information Commissioner (ICO) has produced guidance on
the meaning of vexatious and the recent Tribunal case of Ward v
IC (decided in May 2010) summarises some helpful general
principles and offers some pointers for schools along the way.
Whilst a case turns on its own facts, the Tribunal has given some
indication of considerations that may be relevant when looking
at a potentially vexatious request:
� where the request forms part of an extended campaign to expose
alleged improper or illegal behaviour, where there is evidence
to indicate that the campaign itself is not well founded;
� where the request involves information which had already been
provided to the applicant;
� the nature and extent of the applicant's correspondence with
the public authority suggests an obsessive approach to disclosure;
� the tone adopted in correspondence is tendentious and/or
haranguing;
� the correspondence could reasonably be expected to have a
negative effect on the health and well-being of officers; and
� responding to the request would be likely to entail substantial
and disproportionate financial and administrative burdens.
The Tribunal also highlights the need for a balance to be struck
between the need to protect public authorities on the one hand
and the need not to constrain, unfairly, requests for information
on the other and the vexatious exemption should not be used
lightly.
Particular issues for schoolsThe case underlines a number of other important considerations
which schools will need to be aware of, including the relevance
of the size of the governing body. Requests made to a smaller
governing body will have a larger administrative impact and the
threshold for when requests becomes vexatious is likely to be
lower than in schools with a larger and better resourced governing
body.
When looking at the context of a particular request, all previous
requests/conduct of the parties making the request is relevant
– not just requests that relate to one particular issue. However,
it is important to remember that it is the request that is vexatious,
not the person making it, so they may make a perfectly reasonable,
un-vexatious request at a later date.
Even if a person, for example a parent, has a legitimate grievance
against a school, remember that both the ICO and the Tribunal
have a limited jurisdiction. Neither can make a finding in relation
to the underlying complaint. If the request is, on the facts,
vexatious, then the ICO (and the Tribunal, if the decision is
appealed) must support the school’s reliance on the exemption.
In Ward v IC the parent making the requests was doing so in
order to support an allegation that her child had been bullied
and that the school had failed in its duty to protect him. However,
because her requests were vexatious, her appeal was unsuccessful.
Finally, a school must remember to inform the requestor within
20 days of receipt of the request that the school is relying on the
vexatious exemption. Tom Murdoch [email protected]
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Vexatious Requests (continued)
“When deciding if a particular request isvexatious, the background history between theapplicant and the public authority (i.e. the school)should be considered…”
Headteachers (or in their absence, the teacher in charge) must
have regard to the Secretary of State’s guidance on exclusions
“Improving Behaviour and Attendance: Guidance on Exclusion
from School and Pupil Referral Units”.
The Guidance refers to four sets of circumstances where an
individual pupil may be required to leave the school site:
1. There is sufficient evidence that a pupil has committed a
disciplinary offence and allowing the pupil to remain in school
would seriously harm the education and welfare of the pupil or
others in the school;
2. A pupil is accused of a serious criminal offence but the offence
took place outside the school’s jurisdiction. In these circumstances
the headteacher may decide it is in the best interests of the
individual and the community for that pupil to be educated off
site for a certain period;
3. Medical reasons;
4. A pupil is given permission to leave the school premises briefly
to remedy breaches of the school’s rules on appearance or
uniform.
The Guidance states that a decision to exclude a child permanently
is a serious one and should only be taken where the basic facts
have been established on the balance of probabilities.
Furthermore exclusion should not be imposed in the heat of the
moment unless there is an immediate threat to the safety of
others, but after a thorough investigation has been carried out,
all evidence available considered and pupils allowed to give their
version of events.
If a headteacher is satisfied that, on the balance of probabilities
a pupil has committed a disciplinary offence and needs to be
removed from school for that reason then formal exclusion is
the only lawful method of removal.
Often, a headteacher will initially exclude a pupil for a short fixed
term and record in the exclusion letter that investigations will
continue and the exclusion may be made permanent. This
appears entirely proper, avoiding a ‘knee jerk’ reaction and allowing
a considered decision to be made. But is this actually a lawful
process? The Guidance states that such practice (i.e. converting
a fixed term exclusion into a permanent one) should only be used
in “exceptional circumstances” “usually where further evidence has
come to light”. Normally there is no further evidence that comes
to light in this short period, but the headteacher reflects that
permanent exclusion is the correct sanction.
A recent case in Northern Ireland that came before the Supreme
Court looked at the process of exclusions. The NI process is in
virtually all respects identical to the exclusion system in England
and Wales. In this particular case, the principal had ordered that
a pupil remain at home whilst investigations were carried out.
It was termed a ‘precautionary exclusion’. The Supreme Court
has ruled that this was unlawful and at least one commentator
on the case has cast doubt as to whether a headteacher may
exclude a child for a fixed term in order to continue to investigate,
and/or as a means of protecting the health and safety of the
school community.
A headteacher who excludes for a fixed term has to be satisfied
that a serious offence has taken place and that it is appropriate
to impose a disciplinary sanction. What therefore is the
“exceptional circumstance” that permits the school to extend
the fixed term exclusion and/or make it permanent?
The Supreme Court appears to have rejected the notion, where
there is a disciplinary aspect, that a headteacher can require the
pupil not to attend school as part of his general management
powers, without going through a formal exclusion process. The
Supreme Court has said that this general management power
was likely only to apply if there were medical reasons – for example
the pupil had a contagious disease - although the door may still
be open in relation to other action where there is no disciplinary
element.
In my view where a headteacher is faced with a disciplinary
situation that he would wish to investigate further, but is satisfied
that on the balance of probabilities the offence has taken place
[which he must be] the headteacher may exclude the pupil for
a fixed term and record in the letter that the exclusion is on
disciplinary grounds and that it may be made permanent; however
the headteacher wants time to reflect on the gravity of the offence
and the risk to the school community. Whilst it may not be the
case that ‘new evidence comes to light’ in the intervening period,
I believe that a headteacher may still convert the fixed period
Exclusions
Exclusions (continued)
If your School is considering applying for Academy status it is
important that the employment law issues are appropriately
addressed.
The change in status will amount to a relevant 'transfer' under
the Transfer of Undertaking (Protection of Employment)
Regulations 2006 ('TUPE').
The transfer does not terminate the employment contracts of
the staff at the existing schools. Instead those employees will
transfer to the Academy under their existing terms of employment
and with their continuity of service intact. This means that there
is no break in the employees’ service.
The Academy steps into the school’s shoes with regard to the
employment contracts and anything done (or not done) by the
school before the transfer is treated as having been done by the
Academy.
The TUPE regulations enhance transferring employees’ unfair
dismissal protection by providing that certain dismissals are
automatically unfair. As a result the Academy is severely limited
in its ability to dismiss employees fairly when a TUPE transfer
occurs.
Any dismissal of an employee with continuous employment of
a year or more will be automatically unfair where the sole or
principal reason for the dismissal is either:
� the transfer itself;
� a reason connected with the transfer that is not an economic,
technical or organisational reason entailing changes in
the workforce (an ETO reason).
The majority of Schools transferring to an Academy would not
want to dismiss any of their staff but they might wish to change
their Terms and Conditions.
It is possible to make changes to employment terms before or
after a transfer (a "permitted change") where the sole or principal
reason is either:
� a reason unconnected with the transfer;
� a reason connected with the transfer which is an ETO reason
entailing changes in the workforce.
If the Academy is unable to establish an ETO reason for the
changes, it is at risk in relation to any claims which may be brought
by employees.
If the variations are invalid then even if the employee accepts
them they will not be bound by them. Indeed, in those
circumstances they are entitled to take the benefit of any improved
terms but ignore the detriment of any less favourable terms.
Consequently, it is important to take care and indeed take
appropriate advice during the process.
For further information regarding ETOs and what can and cannot
be done or how it can be done on the creation of an Academy
please contact Nick Watson [email protected].
Academies and Consulting with your Staff
exclusion into a permanent exclusion setting out clearly the
reasons for so doing.
There could be an argument of double jeopardy (being punished
twice for the same offence). However that argument is offset by
stating that permanent exclusion is ‘usually the last resort’ and
the headteacher wanted to evaluate all the evidence available,
consider risk assessments or alternative strategies etc. Note that
the Guidance is just that, and provided the headteacher has had
regard to it and has cogent reasons for deviating from it, any
legal challenge based on the fact that the headteacher has not
followed the Guidance to the letter can be defended. What is
essential though, to avoid a valid claim of double jeopardy is to
ensure that the conversion to permanent exclusion is effected
before the expiry of the term of fixed term exclusion.
If the headteacher is not initially satisfied on the balance of
probabilities that the offence took place then no fixed term
exclusion should be made. The headteacher will need to manage
the situation internally, whilst continuing investigations before
coming to a decision. By not imposing a disciplinary sanction at
that stage, the headteacher is free to move direct to permanent
exclusion if the facts warrant it.
For advice on exclusions including reviewing your disciplinary /
behaviour policies please contact Michael Brotherton
An important and well-publicised element of the coalition
government’s education programme is the creation of so-called
Free Schools. These, in essence, will be publicly funded schools
set up by individuals or organisations who see a need for a new
school to meet particular needs. The promoters will,
characteristically, be parents, teachers, charities and perhaps
existing independent schools although the indications coming
from the Department for Education (DfE) is that they do not see
this as a rescue opportunity for failing independent schools.
The Academies Act refers to the schools as additional schools.
The schools will be set up legally as academies, so that they will
be constituted as a charitable company limited by guarantee
operating under a funding agreement with DfE, under which the
company commits to providing and running the school and DfE
commits to providing funding. Funding will be on a similar basis
to other academies which means that they will broadly receive
what a comparable school within their local authority would
receive together with additional funding representing money
which a local authority would hold back centrally. They will have
academy freedoms which, in essence, means freedom (with
certain restrictions in relation to RE and collective worship and,
in the case of secondary schools, Key Stage 4 and post-16 provision)
as to the curriculum and the right to set individual employment
terms and conditions without being bound to follow STPCD for
teachers or the local authority Green Book for non-teaching staff.
It has been said that planning restrictions on establishing new
schools will be removed. It remains to be seen whether that
means that there will be no planning restrictions at all, raising
significant questions about matters such as environmental impact
including key flash points such as traffic and parking, or whether
there will simply be a relaxation of the rules relating to the change
of use of existing buildings. There will be limited capital available
and what there is will be allocated to refurbishment and
adaptation. Promoters will normally be expected to identify and
provide premises, which may be for example, converted offices
or a hospital and DfE, working through Partnership for Schools
if that body survives as the body responsible for capital funding,
will assess suitability and adaptability. One open question is how
on-going premises costs will be met. Owners of property will
expect to see a return so will expect a rent. Alternatively
promoters may raise capital privately and have interest costs.
Schools currently are not funded in a way that allows for rent or
interest on borrowing, so free schools will need additional
resources if they are to operate on a level playing field with other
schools in their area. One suggestion from DfE is that there will
be capital grants to cover this but more detail will be needed to
be sure that rising rents or increased interest charges can be
covered.
New free schools, by definition, add to pupil places in an area.
Indeed, that is a central point, that the schools will make new
provision of a kind that is not currently available and that non-
availability is not necessarily related to an insufficiency of places.
Existing schools may, therefore, suffer and some may well struggle
to survive. Perhaps an unarticulated sub-text of free schools is
to procure the disappearance of schools that do not meet popular
demand without actively having to engage in a general re-
organisation process. However, the Act provides that a
consultation must be entered into with such persons are
considered appropriate and one would expect challenges to be
made where this consultation fails to include relevant local
stakeholders.
Some free schools will be promoted by bodies with expertise in
establishing and running schools. Others, especially those
proposed by small groups of parents or teachers, will need
Free Schools
“New free schools, by definition, add to pupilplaces in an area.”
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The Education Bulletin deals with some current legal topics. It should not be used as an alternative to specific legal advice on the individualcircumstances of a particular problem.
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Your Contacts
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significantly more support. They will possibly be supported by
an accredited provider, again assuming that this concept survives,
and in any event will get initial guidance from New Schools
Network which is a separate charity funded by DfE set up to
assist and co-ordinate applications for free schools. The initial
process is conducted through them by completing a short
proposal form. New Schools Network will assist promoters
(directly or by reference to external organisations) to prepare and
complete the form but our understanding is that all applications
will be considered by DfE. Richard Gold [email protected]
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