Update: education

There has been much press interest in the education bill, which has already had its third reading in the House of Commons and is due for a second reading in the Lords on 14 June. The current government's belief is that it pushes the education system towards a higher standard for all children.

The bill addresses school discipline and key reforms to the funding of higher education. It makes significant changes to school regulation and inspection, reduces accountability to differing bodies and brings into force legislation that will directly address early years provision for children from disadvantaged backgrounds.

Search powers

Schools have long been able to ban prohibited items from its premises under section 550ZA of the Education Act 1996 (as amended) but the bill proposes to further extend these powers.

It expressly provides for 'search' powers for teachers to enable them to search students for any 'prohibited' items brought into school which will include 'an article that the member of staff reasonably suspects has been, or is likely to be, used to (i) commit an offence, or (ii) to cause personal injury to, or damage to the property of, any person including the pupil'.

The range of prohibited items which a member of staff can search a pupil for has therefore expanded and it follows that this could include mobile phones, cameras or mini computers. Reasonable force may only be used in executing a search for prohibited items and those items which the school rules identify as an item for which a search may be made.

The bill will also allow searches to be undertaken by members of staff of the opposite sex, without another member of staff present, if the person carrying out the search 'reasonably believes that there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency, and in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as the pupil or in the presence of another member of staff'.

This clause is likely to cause concern particularly in this age where there are concerns about abuse of minors and, inevitably, the threat of allegations against an innocent teacher due to the overzealousness of a child's imagination.

Permanent exclusions

The very suggestion that Independent Appeal Panels (IAPs) should be replaced by a review panel causes much trepidation in practitioners acting for the child. It is common knowledge, and a generally accepted state of affairs among practitioners acting for the child, that the governing body hearing is often a 'rubber-stamping' process. It is rare, although it does happen, that a governing body will reinstate a child. The only fair hearing that the child gets in a permanent exclusion situation is before the IAP.

The powers given to the IAP under the current law makes the exclusion process a fair one as the child always has one realistic chance of being reinstated. Under the current education bill, the IAP will be replaced by a review panel. This panel's powers are much reduced in that they are not able to reinstate a student but must instead remit the matter back to the governing body to make a new decision in the face of the evidence the panel has considered if they found that the head teacher was wrong in imposing a permanent exclusion.

If this happens there is no guarantee that the governing body will change its decision. One must ask 'what then?' Does the student have another right to challenge the matter before a review panel? Or does the student have to bring a judicial review against the decision of the governing body?

There is much recent case law on challenges brought by higher education students against the decisions of the Office of the Independent Adjudicator for Higher Education (OIA). The decision-making system of the review panels, under the proposals, will be very similar to the powers afforded to the OIA. The OIA's decision is not binding and therefore its decision amounts to a recommendation to the university. It is up to the university to decide whether to accept the recommendation and implement it, or not. If it does not, it is named and shamed in the OIA annual report; a small punishment to an institution that may have been deemed to have broken the law but refuses to put it right.

Can this analogy be applied to these new review panels? If the courts have been so reluctant to find against the OIA, will they not also be reluctant to find against the panels and governing bodies, as these are seen as 'alternative remedies'? Schools will, however, have to find and fund an alternative school for an excluded pupil.

Special educational needs

The green paper on special educational needs (SEN) is still in the consultation phase, due to close on 20 June. If this green paper becomes law, it will change the face of the statementing process as it currently stands in law.

As many practitioners will know, the current system includes a thorough assessment of the child's needs including education and health. These needs are drawn up in a formal statement of special educational needs which is made up of six parts.

Parts 1 to 4 are binding on the local authority and obliges it, under the Education Act 1996 (as amended), to make the provisions available to the child as set out in part 3 and to place the child in the school named in part 4. Health issues and concerns fall within part 5 of the statement and is therefore not legally binding. It is included to assist with background and current health issues as information only.

The new SEN process will amount to a holistic approach of the child's needs, all of which are set out in a document that then, hopefully, is binding on the school or the local authority and will provide not just education assistance but also health and general care requirements.

Law school in court

On 30 March 2011, the High Court gave judgment in the case of Abramova v Oxford Institute of Legal Practice [2011] EWHC 613 (QB), dismissing Ms Abramova's claim for breach of contract. It is a long-established and accepted principle that academic judgment is not challengeable. The courts have always maintained this principle.

Teachers and lecturers of educational institutions are entitled to draw their own academic judgment of a student's performance without being under threat of a potential legal challenge. Ms Abramova did not directly challenge academic judgment. She enrolled on the legal practice course at the defendant institution but, despite attempting certain examinations three times, she failed. The Law Society rules stipulate that if a student fails any single examination three times they are not entitled to retake the examination unless there are exceptional circumstances. Obtaining consent for a fourth attempt is a difficult process.

Ms Abramova was therefore left with the options of accepting she would never be a solicitor through the traditional route; challenging the decision making of the institution in assessing her academic ability; or retaking the entire legal practice course again. She chose to challenge OXILP by alleging that it had breached section 13 of the Supply of Goods and Services Act 1982, which states: 'In the contract of supply of the service where the supplier is acting in the course of business, there is an implied term that the supplier will carry out the service with reasonable care and skill.'

Throughout the proceedings, Ms Abramova never challenged the academic judgment of the examiners. Instead, she alleged that the tutors failed to provide her with any or any adequate feedback to enable her to have the best possible chance of succeeding, following the failure of each examination and each retake of the examinations she did fail. She never alleged that the outcome of the examinations should be different, but that if the tutors had done their job properly she would have had the adequate teaching and feedback on the weaker areas of her exams and would therefore have passed. In essence, the tutors, by their actions, breached the 1982 Act. No expert evidence was adduced and the claim was not brought in negligence.

The court dismissed her claim as it concluded that the claim in breach of contract due to breach of section 13 of the 1982 Act amounted to a claim in negligence and therefore it was a high test to satisfy. It must, in essence, amount to the Bolam test. This is because to draw a conclusion that section 13 of the 1982 Act has been breached, one must have evidence that the tutors fell so far below the standard of a reasonable tutor applying a reasonable amount of skill and care that it amounted to a breach of section 13 and thereby a breach of an implied term of the contract. It therefore amounted to negligence and there was no difference in the way that the court would test the breach.