December 2018 edition: What Are The Key Legal Challenges That Schools Will Face Over the Coming Months?

What Are The Key Legal Challenges That Schools Will Face Over the Coming Months?

A New Year brings with it renewed vigour for the months ahead and that vigour is going to be needed as 2019 is again going to be a busy year for schools. Just three of the forthcoming challenges include the thorny issue of Brexit for staff, the added safeguarding focus on peer-on-peer abuse in schools, and the major policy issue of exclusions and alternative education.

Exclusions, off rolling and alternative provision: radical change in 2019?

The Timpson Review that reports in the New Year, may mark a major shift from the Gove era’s insistence on supporting discipline in schools. Recent steep rises in permanent exclusion rates and Parliamentary concern about the quality of alternative provision are part of a growing public scrutiny about the provision for children at risk of exclusion.

From a school perspective, a recent report suggests that 4/10 teachers have difficulty in managing children in school – a significant increase over last year – and that they believe they receive inadequate support from senior staff. A survey has suggested that drug gangs target excluded pupils. There has been a plaintive request for consistency of treatment of Schools where Ofsted has asked why there are so many fixed term exclusions on the one hand while praising the school that is responsible for a high proportion of them for its firm discipline on the other. At the same time there is pressure to prevent off-rolling in the Sixth Form and a complaint from an ‘inclusive’ school that the government insisted on including in its performance tables children who were in jail or sectioned under the Mental Health Act. SEN advocates say that off-rolling pupils with special educational needs is making schools less inclusive and Ofsted’s response to the Commons report ‘Forgotten Children’ somewhat ambiguously states it would welcome "any measure” that identifies schools where leaders’ inclusive practice has a positive impact on pupils’ outcomes.

Just three of the forthcoming challenges include the thorny issue of Brexit for staff, the added safeguarding focus on peer-on-peer abuse in schools, and the major policy issue of exclusions and alternative education.

Roger Inman

At a governance level, the National Governance Association’s (NGA) response to the government’s review of exclusions indicates that governors should not be responsible for reviewing exclusions. Instead the NGA suggests that representations should be made to an independent tribunal, arguing that excluding a pupil is a technical and legal matter and not a governance one. It appears that this proposal will now be considered as part of the Timpson Review.

The Secretary of State has said that he does not rule out legislation to make schools responsible for the pupils they exclude. One Local Authority is already seeking agreement from its schools to impose a levy of £5,000 on schools for every permanently-excluded pupil. The next year promises to be an important one regarding these issues.

Roger Inman, Partner and Head of Education

Employing EEA Teachers After Brexit

It is hard to find a school that does not employ European Economic Area (EEA) nationals. Following Brexit, EEA nationals will no longer be in a positon to enjoy free movement.

In practice this means people from the EU may face similar immigration rules as those from outside the EEA, once the UK has completely left the EU. EEA nationals may need to be sponsored. Any schools who currently sponsor overseas nationals to work or study in their organisation will be aware of the duties under the immigration rules. Organisations must hold a licence, and ensure that they are compliant at all times. This could mean that schools with a sponsorship licence could be in a more advantageous position in the future if EEA nationals require sponsorship.

For now, we are aware of the transitional arrangements which are planned to be in place from the UK’s departure from the EU in March 2019 until December 2020. In that period all EEA nationals will need to register as settled (if they have been in the UK for more than 5 years) and pre settled (if their period of residence in the UK has been less than 5 years).

Senior Associate Julie Moktadir

Senior Associate Julie Moktadir has worked in various areas of law with particular expertise in policy work, immigration and asylum law. She has advised organisations and individuals on a broad range of immigration issues, including UK organisations recruiting from abroad and matters affecting European nationals employed in the UK. She uses her knowledge of often sensitive immigration-related matters to support clients across Stone King’s sectors.

Her broad experience includes publically-funded and private immigration and asylum work, including applications, appeals and judicial reviews.
She successfully completed a Management Development Programme and is an accredited Senior Caseworker and Supervisor of the Law Society’s Immigration and Accreditation Scheme.


Recent news stories about peer-on-peer abuse in schools, including primary schools, have suggested that some schools are unfamiliar with their duties in cases of such abuse. Keeping Children Safe in Education, September 2018 (KCSIE) requires schools to ‘ensure their child protection policy includes procedures to minimise the risk of [the different forms of] peer-on-peer abuse’ and how allegations will be ‘recorded, investigated and dealt with’.

Peer-on-peer is much wider in scope than sexual violence and sexual harassment (‘SVSH’), and a school’s approach to SVSH should reflect and be part of a broad approach to safeguarding.

The guidance makes it clear that ultimately responsibility falls to the school proprietor to ensure the school’s responses to reports of SVSH are managed appropriately and in accordance with their obligations. In practice, the Designated Safeguarding Lead (‘DSL’) will take a leading role with the support of external agencies, but all staff should be aware of their school’s procedures for dealing with SVSH, their role, and that SVSH should never be ignored. Effective training and effective policies are key in providing an appropriate response. Training should not be restricted to staff, but include governors to secure commitment from the top down.

Each case of SVSH should be considered individually, taking a contextual approach to inform appropriate action. ‘Victims’ should be reassured and supported, ‘perpetrators’ protected, and all children involved, whether ‘perpetrator’ or ‘victim’, treated as being ‘at risk’.

Charlotte Melhuish, Senior Associate

Senior Associate Charlotte Melhuish is an education specialist and joined the Education Team at Stone King LLP in May 2018. Charlotte advises and supports the firm’s independent schools on a range of pastoral care matters including sensitive and complex safeguarding matters; SEND issues and discrimination claims; effective management of parental complaints; data protection compliance; behaviour management and pupil exclusions; admissions; compliance with regulatory requirements; parent contract and policy review and implementation.