Learning curve

The Education and Inspections Act 2006 (EIA 2006) makes a number of amendments to existing enactments. The Act runs to 191 sections and 18 Schedules and covers a wide range of areas such as the duties of local education authorities, a new procedure for dealing with schools 'causing concern', and new provisions relating to disciplinary matters.

New general duty on LEAs to identify children not at school

Part 1 imposes several new general duties on local education authorities (LEAs), one of which is to make (in England as from 27 February 2007; this date and the other commencement information given below is drawn from SI 2006/2990, SI 2006/3400 and SI 2007/935) arrangements for the identification of children in their area who are not receiving suitable education, either at school or otherwise than at school (s 4). Previously, LEAs' only relevant duty was to take appropriate steps in relation to the children who happened to come to their attention.

Recasting of school organisation legislation in England

Part 2 will, when it is fully in force, re-enact for England much of the existing legislation concerning the establishment, alteration and discontinuance of maintained schools. One change is that LEAs will no longer as a matter of right be able to propose the establishment of new community schools. Instead, the power to do so will be subject to a number of conditions and, in some cases, to the consent of the Secretary of State.

Abolition of school organisation committees

When it is in force, s 29 of the EIA 2006 will abolish school organisation committees. (They could have been, but were never, caused to come into existence in Wales.) As a result, school organisation proposals will be decided in England initially by the LEA or the adjudicator appointed under s 25 of the School Standards and Framework Act 1998 (SSFA 1998), and if they are decided by the LEA, then they will be finally determined (subject to judicial review if appropriate) by the adjudicator.

Compliance with new admissions code

Section 40 of the EIA 2006 amended (as from 12 December 2006 in England) s 84 of the SSFA 1998 to the effect that admission authorities within the meaning of s 88 of that Act will have to comply with the code of practice issued by the Secretary of State (or, in Wales, the National Assembly) concerning admissions to maintained schools. Previously, there was a duty only to have regard to that code. There is a precedent for legislation of this sort by ministerially produced documents, in the form of the School Teachers' Pay and Conditions Documents issued (now) under s 122 of the Education Act 2002 (EA 2002).

Prohibition of interviews for admission to maintained schools

Section 44 of the EIA 2006 inserts (in England as from 27 February 2007) a new s 88A into the SSFA 1998, prohibiting interviews for admission to maintained schools except in certain limited circumstances.

Removal of right to appeal to the Secretary of State where right to delegated budget suspended

Section 57 of the EIA 2006 among other things removes (as from 8 February 2007 in England) the right of the governing body of a maintained school to appeal to the Secretary of State against a decision by the LEA to suspend the school's right to a delegated budget because of mismanagement of the budget. Such a decision will therefore be capable of being challenged only by way of an application for judicial review. However, the governing body will have no delegated budget with which to fund such a challenge. A complaint to the Secretary of State under section 496 of the Education Act 1996 (which costs nothing) will therefore now usually be the only viable route for seeking to overturn such a suspension.

Part 4: ss 59-73 '“ schools causing concern in England

Part 4 of the EIA 2006 (ss 59-73) is a set of new provisions relating to maintained schools in England which are 'causing concern'. Theyreplaced(as from 1 April 2007) the existing provisions in the SSFA 1998 relating to such schools (ss 14-19A), which now apply only in Wales. Although LEAs' powers of intervention are strengthened slightly, that strengthening is counterbalanced by the introduction of a right to make representations about a warning notice to the Chief Inspector (i.e. Her Majesty's Chief Inspector of Education, Children's Services and Skills, as provided for now by Pt 8 of the EIA 2006) under s 60(7). The Chief Inspector may then decline to confirm the warning notice.

Part 6: school travel

Part 6 of the EIA 2006 (ss 76-87) imposes as from 1 April 2007 new duties on LEAs in relation to (1) travelling to school in England and (2) the travelling in England of what are called 'qualifying adult learners' to education institutions outside the further and higher education sectors.

Part 7: school discipline

Part 7 of the EIA 2006 (ss 88-111) amends (in part from 1 April 2007 onwards ) the law relating to discipline in 'relevant schools' (i.e. maintained schools, academies, city technology colleges and city colleges for the technology of the arts) and, in some cases, to disciplinary matters in 'any school'.

One notable change is that s 94 of the EIA 2006 confers for the first time an express defence to the seizure 'as a disciplinary penalty' of an 'item' which is in the possession of a pupil at any school. The retention for any period and even the disposal of the item as part of a 'disciplinary penalty' will be lawful as long as the disciplinary penalty itself is lawful (see s 94(1) and (2)).

Chapter 2 of Pt 7 of the EIA 2006 will, when in force, impose new statutory duties on governing bodies and LEAs concerning excluded pupils. These new duties will include an obligation imposed by s 100(1) on the governing body of a relevant school to 'make arrangements for the provision of suitable full-time education for pupils of compulsory school age who are excluded from the school for a fixed period on disciplinary grounds'.

They will also include an express duty imposed (by amendments made by s 101 to s 19 of the EA 1996) on an LEA to make arrangements 'except in prescribed cases' for the provision of 'suitable full-time education at school or otherwise than at school' for pupils who have been permanently excluded from a relevant school, or who have been excluded for a fixed period on disciplinary grounds from a pupil referral unit. There is currently an obligation to provide full-time education for an excluded pupil only as a result of guidance issued by the Secretary of State, to which LEAs must have regard.

Section 103 will impose a new duty on a parent of an excluded pupil who is of compulsory school age. It will be an offence to breach the obligation. The obligation will apply where the pupil is excluded, whether for a fixed period or permanently, from a relevant school, and a notice has been given to the parent under s 104 of the EIA 2006. The obligation will (subject to exceptions) be to 'ensure that the pupil is not present in a public place at any time during school hours' on any one of the first five school days to which the exclusion relates. It will be a defence to a prosecution for a breach of the obligation that the parent had 'reasonable justification' for the breach (s 103(4)).

Part 8: inspection of schools, etc.

Part 8 of the EIA 2006 on 1 April 2007 reconstituted Her Majesty's Chief Inspector of Schools in England as Her Majesty's Chief Inspector of Education, Children's Services and Skills (see s 113). The new Chief Inspector's functions are wider than those of the former Chief Inspector of Schools in England. Section 112 of the EIA 2006 creates a body corporate which replaces Ofsted, and which is to be known as 'the Office for Standards in Education, Children's Services and Skills' (Ofstecss?).

Section 120 of the EIA 2006 creates a new office of 'Children's Rights Director', whose functions are to be prescribed by regulations made by the Secretary of State. Those functions will relate to the welfare of children in various settings, including boarding schools and colleges.

In conclusion

Almost constant change '“ albeit much of it evolutionary '“ is the order of the day in the law of education. The rate of change is illustrated by the fact that the EIA 2006 is the 10th Act (ignoring for this purpose the EA 1996, which was a consolidation Act) in 10 years whose primary concern is education.