News and guidance

One of the central tenets of charity law is that individuals involved in running charities should do so for altruistic purposes and not for personal benefit.

While that concept is very noble, it overlooks the possibility that the very skills and business links that make an individual a good candidate to be a trustee or a member may also make them ideally placed to provide goods or services to the charity. Both the Charities Act 2011 and the standard Department for Education Articles of Association accept this point and allow for trustees and members (and those connected to them) to be paid for providing goods and/or services to academy trusts in very limited circumstances.

However, following some high-profile news stories relating to payments from academy trusts to connected parties, the Education and Skills Funding Agency (ESFA) has recently introduced the concept of Related Party Transactions, which further restrict when (and, more importantly, how much) related parties can be paid. The new rules came into force from April 2019 and should be of concern to all academy trusts, but particularly to faith academy trusts that purchase services from their diocese. 

Faith academy trusts frequently purchase services from their supporting diocese; often the services are necessarily purchased from (and can only be provided by) the diocese because the faith academy trust must comply with certain rules to operate as a faith academy trust – for instance, the purchasing of RE curriculum materials from the diocese to ensure that RE is taught in an acceptable way. Alternatively, the diocese may be best placed (but not necessarily the only source) to provide non-faith services – for instance, support with building projects to ensure that any new buildings built on diocesan land will meet the needs of the school but also automatically obtain diocesan approval. 
The ESFA has taken a reasonable approach to services provided by dioceses that are “[e]ssential functions fundamental to the religious character and ethos of the [academy trust]” and deemed these contracts to be automatically provided “at cost” and therefore not needing further investigation. 

However, the ESFA has applied a much more onerous test for all other non-essential services provided by the diocese. From 1 September 2019, academy trusts must seek prior approval from the ESFA before entering: 

• a single contract or agreement exceeding £20,000; or

• a contract or agreement of any value where the total value of all contracts and agreements with that party exceeds £20,000 in a financial year

Faith academy trusts which propose to enter into non-essential (but arguably still warranted) contracts with their diocese that fall within the above categories will need to seek the prior approval of the ESFA from 1 September 2019 before entering into the contract. 

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Reporting related party transactions to the ESFA

From 1 April 2019, academy trusts are required to declare a related party to the Education and Skills Funding Agency (ESFA) in advance of accepting goods or services from that supplier.

Academy trusts are also required to seek authority from the ESFA for any related party expenditure exceeding £20,000 during the academic financial year. ASCL Business Leadership Specialist Hayley Dunn, together with James Taylor at Cooper Parry, have prepared a new information paper on Reporting Related Party Transactions to the ESFA, which highlights key points to consider for those affected.

Download the paper here: www.ascl.org.uk/RelatedPartyReporting

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Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP. If you would like to seek advice from a legal professional please contact Browne Jacobson at 0370 270 6000. ASCL members can also call the ASCL Hotline on 0116 2991122 for support on legal issues relating specifically to their own employment.

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The Ethical Leadership Commission was established because of concerns expressed by ASCL members and others about the lack of guiding principles for ethical leadership in education. The resulting Framework for Ethical Leadership in Education provides the profession with the following principles to support leaders in their decision-making and in calling out unethical behaviour:

1. Selfessness: School and college leaders should act solely in the interest of children and young people.

2. Integrity:  School and college leaders must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. Before acting and taking decisions, they must declare and resolve openly any perceived conflict of interest and relationships.

3. Objectivity:  School and college leaders must act and take decisions impartially and fairly, using the best evidence and without discrimination or bias. Leaders should be dispassionate, exercising judgement and analysis for the good of children and young people.

 4. Accountability: School and college leaders are accountable to the public for their decisions and actions and must submit themselves to the scrutiny necessary to ensure this.

5. Openness: School and college leaders should expect to act and take decisions in an open and transparent manner. Information should not be withheld from scrutiny unless there are clear and lawful reasons for so doing.

6. Honesty: School and college leaders should be truthful.

7. Leadership: School and college leaders should exhibit these principles in their own behaviour. They should actively promote and robustly support the principles, and be willing to challenge poor behaviour wherever it occurs. Leaders include both those who are paid to lead schools and colleges and those who volunteer to govern them.

Schools and colleges serve children and young people and help them grow into fulfilled and valued citizens. As role models for the young, how we behave as leaders is as important as what we do. Leaders should show leadership through the following personal characteristics or virtues:  

A. Trust:  Leaders are trustworthy and reliable  We hold trust on behalf of children and should be beyond reproach. We are honest about our motivations.

B. Wisdom:  Leaders use experience, knowledge and insight. We demonstrate moderation and self-awareness. We act calmly and rationally. We serve our schools and colleges with propriety and good sense.

C. Kindness: Leaders demonstrate respect, generosity of spirit, understanding and good temper.  We give difficult messages humanely where conflict is unavoidable. 

D. Justice: Leaders are fair and work for the good of all children  We seek to enable all young people to lead useful, happy and fulfilling lives.

E. Service:   Leaders are conscientious and dutiful  We demonstrate humility and self-control, supporting the structures, conventions and rules which safeguard quality. Our actions protect high-quality education. 

F. Courage:   Leaders work courageously in the best interests of children and young people. We protect their safety and their right to a broad, effective and creative education. We hold one another to account courageously. 

G. Optimism: Leaders are positive and encouraging. Despite difficulties and pressures, we are developing excellent education to change the world for the better.

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Framework for ethical leadership in education

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Find out more at www.ascl.org.uk/EthicalLeadership

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The EAL Challenge

Supporting pupils with English as an Additional Language (EAL) can seem like a daunting task, but with small changes to school practices, it’s possible to properly address the needs of these learners. Here are five tips for transforming learning for pupils with EAL: 

• Ensure newly arrived pupils have the tools to cope at school by teaching them survival language and buddying them up with a classmate for support
• Make visuals a priority in class to provide context and allow learners to access new information easily. 
• Adapt activities for different levels by scaffolding tasks. Pre-teach vocabulary, supply language frames for writing or use graphic organisers.
• Incorporate collaborative exercises for group-work into lessons so EAL pupils are exposed to more correctly modelled language. 
• Embrace technology. Great Barr Academy in Birmingham recorded an increase of two proficiency grades in over 50% of their pupils with EAL in 15 weeks, through their use of FlashAcademy® EAL technology.

FlashAcademy accelerates English language acquisition from over 35 home languages through curriculum-mapped lessons, challenges and games, identifying key learning gaps for pupils.All ASCL members benefit from a 5% discount on Flash Academy licences. To arrange a free demonstration, contact the Flash Academy team on 0121 724 0854. For more information about the platform, visit https://flashacademy.com/ascl/ 

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Working on your behalf to influence government policy

ASCL continues to have a strong influence on education policy. Here Director of Policy Julie McCulloch outlines our recent work in this area, and what impact we’ve had.

Funding

Ensuring government is fully aware of the impact of funding cuts on schools and colleges continues to be top of our agenda.

We held a number of meetings with ministers and officials to follow up on our The True Cost of Education report. This report highlighted a massive £5.7 billion shortfall in next year’s schools’ budget. We also produced a video explaining the thinking behind the report and its key message. This has helped us to spread the message to a wider audience. See the report and video at www.ascl.org.uk/truecost

We’ve also taken this message directly to the Treasury, as it continues to prepare for the Comprehensive Spending Review (for which there is still no clear timetable). In regular meetings with Treasury officials, we continue to make clear to them the crucial importance of funding our schools and colleges properly, and the broader societal implications of not doing so.

We also continue to work with other organisations to amplify our voice. We’re part of two funding-focused coalitions – the Collaborative Funding Group (which includes the f40 group and the #WorthLess? campaign) and the School Cuts Coalition. ASCL Funding Specialist Julia Harnden has also joined an advisory group convened by Ofsted, to help analyse the impact of the funding crisis on schools and colleges. 

We continue to represent members’ interests with regards to changes to pensions. We were instrumental in securing the recent commitment that the increase in employer contributions to the Teachers’ Pension Scheme will be fully funded for state schools. We’re also working with colleagues in the independent sector to ensure that government is aware of the likely impact of this increase on independent schools.

Accountability

ASCL has been a highly influential voice in shaping the direction of the 2019 education inspection framework. Our robust but constructive engagement with Ofsted has allowed us to clearly represent members’ views on the proposed changes, and to secure some tangible improvements.

We’ve broadly welcomed the direction of travel, and particularly the proposed introduction of a ‘quality of education’ judgement. This, we argued in our response to Ofsted’s consultation, is a positive step towards a more intelligent, proportionate approach to accountability. 

There were, however, a number of aspects of the proposed new framework with which we disagreed. These included the introduction of on-site preparation on the afternoon prior to an inspection, the inclusion of English Baccalaureate (EBacc) entry levels in the criteria for the quality of education judgment and the proposal to no longer look at a school’s or college’s internal progress and attainment data. 

We were pleased to see some significant changes to the final framework as a result of our response to the consultation. There are no changes on internal data, but the on-site preparation proposal has been dropped, and the language around EBacc has been softened to make it clearer that the EBacc targets are a national ambition, which should not be applied to individual schools.

The final version of the Inspection Handbook states clearly that EBacc should not, solely or primarily, determine an inspection judgement. We’re also pleased that Ofsted has taken on board our concerns about the speed of implementation of the new framework, and will take a phased approach to this, to ensure that schools have adequate time to prepare and to discourage knee-jerk reactions.

We were also pleased with the outcome of the government’s recent consultation on ‘identifying schools for support’. This will see the removal of the deeply flawed floor and coasting standards – an issue on which we have lobbied government extensively. Instead, an Ofsted Requires Improvement judgement will be the sole method for identifying under-performing schools, and the government’s response will be to offer optional support, rather than punitive consequences. 

These changes, to both inspection and performance measures, should significantly improve the way in which schools and colleges are held to account. However, we are under no illusion that they will solve all the problems with the current accountability system, and we will continue to press for deeper and wider reform (including through our ‘Forgotten Third’ commission – see www.ascl.org.uk/ForgottenThird).

Ethical leadership

The Timpson Review of School Exclusion published its long-awaited report in May (https://tinyurl.com/y4tthawo). ASCL was represented on the review’s reference group by former Deputy General Secretary Malcolm Trobe. The government immediately accepted all the review’s recommendations.We were pleased with the report’s measured tone, and with the government’s clear 

affirmation of the right of school leaders to exclude a pupil as a last resort. However, the lack of recognition of the impact of funding cuts on exclusions, in terms of both school budgets and broader funding for education and social care, was disappointing.

The recommendation that schools should be made accountable for the outcomes of permanently excluded pupils is interesting and is something we’ve been considering ourselves as part of a more proportionate and inclusive approach to accountability. Exactly how this would work is not straightforward, however, and could come with its own perverse incentives. We’ll be working with government to help them to think through the detail of how this recommendation might be implemented fairly and effectively.

Post-16 education

ASCL Post-16 and Colleges Specialist Kevin Gilmartin has continued to meet with Treasury officials to push the case for more funding for 16–19 education and keep focusing officials’ attention on the #RaisetheRate and Love our Colleges campaigns. 

Kevin also coordinated ASCL’s responses to a number of important consultations that affect members working in sixth form settings, including 16–19 bursary changes and the Post-16 curriculum review.

Crown dependencies 

Finally, we provided detailed responses to major consultations in two of the crown dependencies – a far-reaching Education Bill in the Isle of Man, and a new inspection framework for schools in Guernsey.

Consultation responses 

Our consultation responses are available on the ASCL website at www.ascl.org.uk/policy/consultation-responses

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Julie McCulloch 
ASCL Director of Policy
@juliecmcculloch

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ASCL has been quoted widely in the media over the recent period on a range of issues. 

ASCL General Secretary Geoff Barton was widely quoted in response to the Timpson Review of School Exclusion, and was interviewed on the BBC News Channel. He said that it was disappointing that not enough weight had been given to the impact of the funding crisis on the capacity of schools to provide early intervention.

His comments on Ofsted’s new inspection framework were also reported widely. He said: “Ofsted’s new approach to school inspections is a step in the right direction, but it is not a panacea for all the problems with the inspection system.”

Parliamentary and Inclusion Specialist Anna Cole took part in a discussion on BBC Radio 4’s Woman’s Hour about our information paper on the observance of Ramadan during exams season.On Labour’s plans to scrap primary school SATs, we said the current system was flawed and we need an approach that is fairer on schools and children. Our comments were reported in the specialist and national press, and Director of Policy Julie McCulloch was interviewed on Sky News and BBC Radio 5 live.

We joined with the Sixth Form Colleges Association in warning that scrapping Applied General Qualifications would be “rash and reckless” in response to a government review of post-16 qualifications ahead of the introduction of T levels.

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Using Key stage 2 data as an input measure for secondary schools, 2016–18

ASCL member and Headteacher David Blow has produced a new information paper that provides the cumulative percentage of pupils achieving different KS2 scaled scores, how this has changed between 2016, 2017 and 2018, and how this can be compared with the percentage of children achieving different levels at KS2 previously. It also suggests a method for grouping KS2 prior attainment (low, middle, high). 

Members may also find the toolkit for transition matrices 2018 useful, together with the Progress 8 toolkit. Download all the documents at www.ascl.org.uk/DataDocuments

We thank David for his continued work in producing this helpful information for members.

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On 12 April, the Voyeurism (Offences) Act 2019 came into force, which added two new offences to the Sexual Offences Act 2003 to cover the practice of 'upskirting'. The offences include taking a photograph or video recording beneath the skirt or dress of a person (or enabling another person to do the same), without their consent for the purpose of “obtaining sexual gratification; or humiliating, alarming or distressing them”. The offence carries a maximum penalty of two years’ imprisonment. 

This is a topical issue for educational institutions given recent media reports (www.bbc.co.uk/news/education-47996888) of a growing number of cases of students taking photographs up female teachers’ skirts. It is also a growing issue between pupils and would fall within the definition of peer-on-peer abuse in the Keeping Children Safe in Education guidance.

Given the gravitas associated with the new offence, it is recommended that schools and colleges review current practices and ensure that students are aware of the new crime and the potential consequences of any involvement in upskirting. Action may include reference to this in assemblies, newsletters, personal, social, health and economic (PSHE) education and any materials circulated around the institution.

Policies relating to safeguarding and behaviour may need updating and students made aware that it is not just the person who takes the picture(s)/ makes the recording who will be sanctioned; anyone who has helped that person take the picture(s)/make the recording will be deemed equally culpable. Finally, it may be worth reviewing the school’s or college’s policy concerning mobile phones and whether the rules on their use/presence need updating.

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One of the key reasons school and college leaders join ASCL is to tap into the individual support and advice we provide.

Knowing that there’s someone on the other end of the line who truly understands education leadership issues and knowing that someone is there to listen, no matter what the topic or concern, is reassuring for our members, especially in a constantly evolving education system. 

ASCL Hotline is staffed by an experienced team who were all previously school or college leaders and who are on standby to help with your enquiries 365 days of the year. ASCL members can get in touch with our Hotline on 0116 299 1122 or by emailing hotline@ascl.org.uk

Exclusive ASCL benefits

In addition, did you know that there are lots of other great exclusive benefits that come along with your ASCL membership? These include: 

•  Education experts specialising in topics like funding, accountability, data, curriculum, pay and conditions, business leadership, primary education and much more 
• Representation and legal cover should you find your employment under threat 
• Up-to-date advice and guidance on all school and college leadership issues
• ASCL’s flagship Leader magazine and weekly and monthly email newsletters
• Representation to policy makers on the key issues impacting education
• Employment contract checking service
•  Discounts on products and services for you and your school/college 
•  Personal injury cover

Next steps

If your senior leadership colleagues are not yet ASCL members, tell them about our growing community of over 19,000 primary, secondary and post-16 leaders. They can find out more and join online at www.ascl.org.uk/join

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Following PPC’s move, some years ago, from NAHT to ASCL, it is proposed that, from September 2019, the Principals’ Professional Council (PPC), will become ASCL FE. 

The change will make no difference to the support available to PPC or ASCL members, but it will allow ASCL to speak with a stronger voice on FE matters and to represent the concerns of leaders in FE more powerfully.

The changes to be made in September are:

•  All PPC members and other FE members of ASCL will become part of ASCL FE
• ASCL FE will recruit members from a wider FE leadership pool
• PPC will be rebranded as ASCL FE
• PPC and ASCL membership fees will be aligned (currently PPC members pay a slightly higher annual membership).
• PPC Council, currently made up of experienced principals from eight regions, will continue and will meet as the ASCL FE Committee.

Current PPC members, including lifetime members, need take no action, but if there are any queries about the change of name please contact PPC General Secretary Anne Murdoch by email at anne.murdoch@ascl.org.uk in the first instance, or contact ASCL on 0116 299 1122 or membership@ascl.org.uk

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There is no legal definition of off-rolling; a school, whether an academy or a maintained school, can only remove a child from the roll where one of the reasons in the Education (Pupil Registration) (England) Regulations 2006 is fulfilled. The reasons are all quite specific but include:

• Where a pupil no longer attends the school and the pupil’s new school has confirmed that the pupil can be removed from the roll 
• Where a child is permanently excluded
• Where the parent confirms in writing that the child is otherwise receiving education than at school

Removing a pupil from the roll where one of the reasons is not satisfied is a criminal offence. 

The new Ofsted inspection framework makes clear that Ofsted will be looking at this issue as part of the leadership and management judgement. Therefore, even where removal decisions are in compliance with the Pupil Registration Regulations, leaders will increasingly need to be conscious that they are able to show that removal decisions were in the best interests of the child. 

Schools must be very careful about seeking or appearing to persuade parents to withdraw their child for home education, and, similarly, while placing children in alternative provision may well be in the interests of the child, schools are going to need to be able to explain this if challenged.  

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Retirement need not mean the end of your involvement with ASCL. We have valued your membership and hope you feel the same. By becoming an associate member, you can continue to enjoy many of the benefits of ASCL membership at a reduced cost. 

Associates continue to receive ASCL publications, including Leader and a regular associates newsletter, and can access our website: www.ascl.org.uk There is representation through an elected Associates’ Committee, an annual reunion lunch and committee involvement at local level. Associates also have the chance to give something back through the Associates Voluntary Service, which offers assistance and support to members still in post. 

Associate membership is available either by payment annually or by a one-off payment for a lifetime subscription. Join as an associate member today and find out more about how we can support you in retirement – see online for more details: www.ascl.org.uk/associates

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The DfE has laid its draft Regulations on Relationships and Sex Education (RSE) and Health Education (HE) before Parliament and has published accompanying draft statutory guidance (https://tinyurl.com/yxzs6dfh).

These Regulations intend to make the teaching of these subjects compulsory in schools (specific elements being phase dependent) from September 2020 (although schools can start a year earlier if they wish).

All primary schools will have to teach ‘relationships education’ and all secondary schools will have to teach ‘relationships and sex education’. Health education will be required in all maintained schools. Please note, the health element would not be applicable to independent schools as this is already required under the broader PSHE curriculum they must comply with through the Independent School Standards.

There has been significant media interest in this topic and commentary has not all been supportive of the changes to the regulations. Many of the concerns raised relate to the content of the curriculum, particularly educating about lesbian, gay, bisexual and transgender (LGBT) relationships, and this has caused some contention.

To respond to some of the key concerns raised by parents, charities and groups of interested parties, the DfE has released accompanying FAQs (https://tinyurl.com/y4g7yhco). These FAQs are helpful at setting out the position of the various aspects of the regulations and guidance. This includes the setting of policies, consultation with parents, content and parents’ right of withdrawal from sex education (apart from biological aspects of human growth and reproduction that form part of the curriculum). It also covers the new proposed right of children to ‘opt-in’ as they approach 16 years old. This will give pupils more autonomy regarding their own education in this area.

It should also be noted that the new guidance gives flexibility to schools in their approach to teaching. This will allow faith schools to teach these subjects but within the tenets of their faith, allowing these important subjects to be taught sensitively and inclusively, and with respect to the backgrounds and beliefs of pupils and parents while giving pupils the knowledge they need to live safe, fulfilled, healthy lives.

The new stance on RSE/HE is to ensure that children and young people are prepared and able to make informed choices about relationships as they grow. It is a vital life skill for children to stay safe and develop healthy relationships in the increasingly complex lives we lead. This is more prevalent with young people spending more time developing relations online and increasingly exposing themselves to risks. Schools pride themselves on looking after the ‘whole’ child and, therefore, these topics should be given adequate time and space within the curriculum. 

However, there will be challenges in making sure that the teaching is carried out by the right people at the right level to ensure it is effective. Schools will need to be committed to delivering these subjects. Content will need to be age-appropriate, well delivered and inclusive, and clearly embedded into other school policies, requiring the input of young people and their families through open discussion. Schools will be required to consult with parents when developing and reviewing their policies for Relationships Education and RSE. This will help inform schools’ decisions on when and how the subject’s content is covered. Consultation does not, however, provide parental veto on what and how the subject is taught, as ultimately that is a decision for the school. 

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The ASCL Benevolent Fund (ABF) is an important element in the Association’s policy of providing protection and care for all its members, past and present, and their dependants.

While most members, active and in post, are unlikely to need help, a serious accident, redundancy, chronic illness or disability can change the situation quite traumatically. Whether it is a short-term financial crisis or a long-term problem, the fund stands ready to help. If you know someone who may benefit from the fund or if you think that you would benefit yourself, please call 0116 299 1122 or find out more online at: www.ascl.org.uk/benevolentfund

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The Data Protection Act 2018 (DPA) sets out the data protection framework in the UK, alongside the General Data Protection Regulation (GDPR). Since the DPA came into force there has been some confusion about how the legislation affects the safer recruitment process in the education sector. 

Schools, academies and trusts should review their recruitment processes to ensure that special category (sensitive) data is requested at the appropriate time. 

Rather than ask for criminal conviction data on job application forms, this information should be sought at the shortlisting or interview stage of the process. The application form should be amended to remove questions about criminal convictions but should specify that if the applicant is shortlisted, their suitability to work with children will be explored and this will include disclosing convictions.

If an individual discloses a conviction, this should be discussed on a one-to-one basis with someone who has received safer recruitment training as set out in Part 3 of the Keeping Children Safe in Education guidance. If appointed, the conviction information provided by the individual should be checked against the Disclosure and Barring Service (DBS) certificate.
Shortlisted candidates should not be asked to provide evidence of their right to work in the UK or original qualifications certificates at interview. This information is only required when employment is offered; however, it is acceptable to request photo ID at the interview stage to verify the identity of the candidate. 

There is no change to reference requirements – a minimum of two references should be sought, preferably prior to interview, in accordance with the Keeping Children Safe in Education statutory guidance.

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