News and guidance

While the government’s attention may be increasingly Brexit-focused, there’s still been plenty going on in education policy. The ASCL team has been at the heart of the action and here, Director of Policy Julie McCulloch provides a summary of activity.

Key areas of focus

1. Funding

Funding Specialist Julia Harnden has been working with a group of experts to set out our minimum expectations for the quality of education to which children and young people in the UK are entitled, and what this costs. The group has published a hard-hitting report that highlights the gap between what this minimum entitlement costs, and the current schools budget. Find out more in Julia’s article on page 14.

We continue to push for a timeline for the upcoming Comprehensive Spending Review but, at the time of writing, this has not been confirmed. What is clear is that the DfE is looking for our support in putting together an evidence-based submission to the Treasury. We have had several meetings on this with senior civil servants and will use our report, mentioned earlier, to further inform this work. We are part of a group working with the DfE on the Teachers’ Pension Scheme. This group is focused on the proposed distribution methodology for the increase in employer contributions. We have made it clear that schools need to have confidence in the mechanism that will determine the level of funding they receive in 2019/20 to meet these additional costs, and we will continue to push for reassurance that the funding agreed for 2019/20 will be continued in the future.

As part of our regular dialogue with the DfE and the Education and Skills Funding Agency (ESFA), we have contributed to the development of several pieces of guidance, including the school resource management and assessment tool (https://tinyurl.com/yybf3evm).

2. Curriculum, assessment and accountability

General Secretary Geoff Barton and Curriculum and Inspection Specialist Stephen Rollett engaged closely with Ofsted over the draft revised inspection framework.

We’re broadly positive about the direction of travel, and particularly the fact that Ofsted will be taking a longer-term, phased approach, to give schools time to properly consider their curriculum expertise, rather than rushing into any changes. This is an approach that we strongly encouraged Ofsted to take. We discussed the new framework at length at ASCL Council in February and will be responding to the consultation shortly.

Deputy Director of Policy Duncan Baldwin has been working with the DfE on proposed changes to how schools are identified for support and intervention. The department is currently consulting on these changes, with a set of proposals that include the removal of the floor and coasting standards; that an Ofsted Requires Improvement judgement should become the sole trigger for support; and that what is offered should be genuinely supportive rather than punitive. We have long argued that the floor and coasting standards are not fit for purpose and are delighted to see this recognised in the consultation.

The Joint Council for Qualifications (JCQ) has produced a set of FAQs giving more clarification concerning conflicts of interest and declarations in relation to the design, delivery and assessment of examinations for centres (http://tinyurl.com/yy5od2c8). This is an issue on which many members contact the ASCL Hotline, and we have been urgently calling for this clarification.

3. Recruitment, retention and pay

The DfE published its long-awaited Teacher Recruitment and Retention Strategy, along with information on the proposed new Early Career Framework in January. Deputy Director of Policy: Conditions and Employment, Sara Ford, has been working closely with the department on the strategy, and we are pleased to see many of our suggestions included. We will be considering the strategy, and what more ASCL can do to support teacher recruitment and retention, at ASCL Council in June.

Sara also responded, on behalf of members, to the School Teachers’ Review Body’s (STRB’s) proposed 2019 pay award. We used our response and a joint submission with other unions to highlight again our dismay that the STRB’s previous recommendations had been ignored by government, to call on them to recommend that an annual uplift of 5% should be applied to all pay points and that this pay award must be fully funded by government.

4. Ethical leadership and inclusion

We held an extremely successful summit on ethical leadership in January, to formally launch the outputs of our Ethical Leadership Commission. Over 200 school and college leaders, along with many influencers in education, joined us to mark the launch of a new Framework for Ethical Leadership, a set of resources for governing boards to audit their ethical practices, and a new ethics forum under the auspices of The Chartered College of Teaching. Read more on page 20.

Parliamentary and Inclusion Specialist Anna Cole is part of a new Nasen expert reference group. This group will discuss how to support all schools to be inclusive and to have excellent special educational needs and disability (SEND) at the heart of all they do, and how we can encourage and celebrate inclusivity through the way schools and colleges are held accountable.

Anna is also engaging with the lead on the government’s new Commission for Countering Extremism, Sara Khan, to ensure that schools and colleges play a full role in the commission’s work.

5. Post-16 education

The T levels funding consultation closed in February. The proposals for funding now include elements that were argued for at the T levels stakeholder group meetings, at which ASCL is represented by Post-16 and Colleges Specialist Kevin Gilmartin. One significant ‘win’ is that proposed funding for 18 year-olds taking T levels will be at the full 100% rate, not at the present vocational rate of 82.5%. ASCL has been selected by the Association of Colleges (AoC) to be a partner in a successful tender to the Education and Training Foundation to deliver CPD for school and college staff who are involved in T levels. This is a major training initiative working with schools and colleges across the country over the next year.

Consultation responses
ASCL’s consultation responses are available at
www.ascl.org.uk/policy/consultation-responses

Julie McCulloch
ASCL Director of Policy
@juliecmcculloch

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

ASCL Cymru’s Presidential Trio wrote an open letter to Wales’s Minister for Education Kirsty Williams about the funding crisis in Welsh schools. It was reported on the front page of the Western Mail and triggered a debate in the National Assembly for Wales broadcast on BBC Two Wales. The letter said: “We feel it is unacceptable that out of the £2.5 billion allocated for schools in the education budget, at least £450 million never gets to schools because it is retained by the local authorities or regional consortia.”

We joined other unions in urging the School Teachers’ Review Body (STRB) to recommend a fully funded pay increase of 5% for teachers and leaders, and we criticised Education Secretary Damian Hinds’ evidence to the STRB, which suggested a 2% cap paid from school budgets. ASCL General Secretary Geoff Barton said: “The government’s paltry suggestion of a 2% pay cap is an insult and its suggestion that schools should foot the bill is completely unrealistic given the totally inadequate level of school funding.”

We launched the final report of the Commission on Ethical Leadership at an event in London covered by TES, Schools Week, SecEd and The Guardian. Commission chair Carolyn Roberts said: “The framework isn’t a diktat from government. It is formed by the profession and for the profession. It is an example of a school-led system in action.”

December 2018 saw the publication of the long-awaited Court of Appeal judgment in the case of Durand Academy Trust v Ofsted.

The case was originally brought in 2017 by Durand, which disputed the outcome of an inspection that placed it in special measures and argued that Ofsted’s complaints procedure was unfair, in that schools deemed to be inadequate were unable to challenge the grade given by Ofsted under step 2 of its complaints procedure. The High Court agreed with Durand, ruling that a complaints procedure that did not allow a substantive challenge to the inspection outcome was neither fair nor rational, and that the report should be quashed. Ofsted, however, declined to amend its procedure, choosing instead to appeal the decision.

The Court of Appeal allowed the appeal. In reaching this decision, the court undertook a broader review of Ofsted’s overall process of inspection, evaluation and reporting in the case of a school deemed to be inadequate, rather than focusing solely on the complaints procedure itself. The court concluded that the “procedural safeguards”, offered by the extended quality assurance and moderation process Ofsted undertakes before finalising a report when a school is judged inadequate, amounts to sufficient protection. Although the complaints procedure itself was different than that for schools judged ‘outstanding’, ‘good’ or ‘requires improvement’, this did not mean that the procedures available to a school judged inadequate were unfair.

The court’s judgment contains some interesting insight into the processes followed by Ofsted when a school is judged to be inadequate. The ‘procedural safeguards’ include the school’s ability to raise concerns during the inspection itself, to comment on any element of the draft report and receive the lead inspector’s response and the requirement for the chief inspector to authorise the judgement. While the court may have considered these processes to offer protection on a par with the ability to challenge the outcome through the complaints procedure, schools finding themselves in this position may well consider them no substitute for having the time to reflect on the written report and the opportunity to present their concerns for review by someone independent of the inspection, as would be offered by step 2 of the complaints procedure. Schools will need to make sure they make full use of all opportunities throughout the process to ensure their concerns are heard.

The Office of the Schools Adjudicator (OSA) has published its annual report for the 2017/18 academic year. The report looks at the issues the adjudicators have considered in relation to admissions and any themes that have emerged. This year’s report sets out that some issues around consulting upon and determining admission policies have not yet been rectified despite the same flaws being identified in previous reports. Consultation remains an issue and particularly ensuring that the right information is provided to the full list of statutory consultees, especially “parents of children aged between 2 and 18”. Schools do need to find a way to signpost the consultation and seek views from parents across their local area and should consider using other schools to pass on the details of the consultation as well as approaching local shops, supermarkets, libraries, early year providers and doctors’ surgeries to make information available about the consultation.

A new aspect of the Adjudicator’s Report was a discussion around the issue of in-year admissions outside the normal year of entry where the pupil numbers in that year group are under the published admission number (PAN) that was originally set for that year group. In the normal year of entry, a school cannot refuse to admit a child where their pupil numbers are below PAN. In other year groups, that rule does not apply and it is possible for admission authorities to ‘cap’ numbers in those year groups or set an ‘operational capacity’ in that year group that sets out that the pupil numbers are at a level below PAN but that the school cannot admit pupils beyond the operational capacity as it would cause prejudice to efficient education. The report does not prohibit such action and it appears to be sympathetic to schools taking this action where there are sound reasons underpinning the decision. This can be an important tool for schools to protect those year groups where pupil numbers are low and where there would be significant problems caused to the organisation and delivery of the curriculum (among other issues) by a sudden influx of children. In all cases, we would advise that the matter is formally discussed by the admission authority and a formal decision taken on the operational capacity issue.

If so, make sure you don’t miss out on the latest information and tell us of any change in job title, school/college address, home address and email. You can change your personal information online; simply log on to www.ascl.org.uk using your password and then click on ‘edit your details’ (in the gold ‘my account’ box on the left-hand side) and update your details.

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

In January 2019, the DfE issued new best practice guidance and model templates to assist schools in developing their complaints procedures. The guidance is primarily designed for maintained schools, but academies and independent schools are likely to find the resources useful, particularly as they set out the DfE’s expectations concerning appropriate complaint management.

The guidance includes a section on managing serial and persistent complaints. It makes it clear that the characterisation of a complaint as serial, persistent or vexatious should be against the complaint itself rather than the individual making the complaint. It expressly states that schools should not refuse to accept further correspondence or complaints from an individual they have had repeat or excessive contact with, or who they find difficult to deal with. Where an individual persists to the point that may constitute harassment, the guidance suggests obtaining legal advice.

The guidance also has a useful section on complaint campaigns and recommends that a separate procedure is included in school complaints policies to address complaints of this nature. This may include the use of template responses or publishing a single response on the school’s website.

The DfE’s guidance and templates can be found at www.gov.uk/government/publications/schoolcomplaints-procedures

The DfE’s Keeping Children Safe In Education Guidance is clear about the checks that should be made by all educational establishments. Developing an accurate Single Central Record (SCR) is the main way that schools manage these checks. The SCR is also one of the first things looked at by Ofsted when evaluating safeguarding.

For this reason, it is important that schools and colleges understand who needs to be checked and what checks are required.

Previously, this would have been straightforward as all schools had the same requirements. However, with the evolving nature of education and the increased range of educational establishments that currently exist, these demands are now different based on the nature of the organisation. Below are the minimum mandatory checks that need to be undertaken and some examples of checks that might be useful to record.

Mandatory checks:

• Identity check
• Barred list check
• Disclosure and Barring Service (DBS) check
• Right to work in the UK
• Qualifications
• Overseas check
• Section 128 check

Recommended checks:

• References
• Safer recruitment training
• Safeguarding training
• DSL/ASDL training

A checks management tool is a useful way of recording, tracking and managing your safeguarding checks and ensuring that your SCR is always up to date. Find out how you can use InVentry as your SCR and manage checks in one place. Visit www.inventry.co.uk or call 0113 322 9253.

Pupil absence remains an important issue for schools, which impacts on a number of other matters. including Ofsted inspections and pupil attainment. Schools and local authorities (LAs) have sought to address pupil absences in a number of ways. Many of which remain opposed by parents and carers.

Penalty notices

Local authorities have continued to issue penalty notices in line with their Code of Conduct for penalty notices for non-attendance (since the outcome of the Isle of Wight case where the local authority was challenged by a parent for issuing a penalty notice for taking his child on a term-time holiday).

Penalty notices can be issued for unauthorised options as a mechanism to avoid a prosecution. Each local authority will have agreed the level of absence that would trigger the process. The amount of the fine that can be issued is currently £120 (which is halved if payed within 21 days).

There have been recent reports in the press about Lancashire County Council increasing the value of the fine to be issued, but the council has denied this, stating that they are currently gathering ideas.

However, could a substantial increase in the level of fine assist in tackling the problems that schools face as a result of non-school attendance? There has been much criticism about the penalty system, including the costs of administering this and dealing with non-payment.

100% attendance awards

Schools are now looking at other innovative ways to deal with school non-attendance and promote 100% attendance. Incentives can include a movie and popcorn experience at the end of the term and perhaps a trip at the end of the year.

However, this promotional approach has also been heavily criticised due to the potential for it to give rise to allegations of potential discrimination on one hand or favourable treatment of others. Children and parents are encouraged to ensure that appointments are made out of school hours. While a general medical or dentist appointment could be arranged, appointments with specialists and consultants may not. Such absences may result in children with medical conditions that require such appointments, not being able to achieve the 100% attendance rate for an attendance award.

Schools should think carefully when introducing such systems to ensure that they do not find themselves facing a potential allegation of disability discrimination. Nor should there be such a rigid approach that the goal of such systems becomes tarnished by increasing complaints from parents about whether an absence should be authorised or not, or whether their child should miss out on benefits being offered to students, if they become unfortunate enough to fall foul of other medical conditions such as chicken pox.

While both of the above seek to address an important issue for schools, unfortunately they both still attract a lot of negativity and other complexities. Schools and local authorities will need to look to other possible arrangements as attendance remains an area under Ofsted’s new proposed 2019 framework that will be taken into account when judging behaviour and attitudes to learning.

MATs are well placed to drive best practice in safeguarding, both on an operational level and through strong and clear governance structures that promote consistency and development across the trust. There are different ways to approach this to suit each trust so the advice that follows from our partner, Browne Jacobson, is not the only way, but if you are yet to consider MAT safeguarding governance, it is a very good place to start.

Consistent approach to policy, dissemination and training – this is the cornerstone upon which your safeguarding best practice is built. Your child protection policy should be 90% the same for each academy in your trust, with the 10% variations reflecting different settings, different communities and different LA areas. Then you need to disseminate the policy, train all staff and evidence the outcomes of that training. That way, you can be sure that all staff are starting from the same position that drives consistency and, ultimately, improves safeguarding practice.

Ensure your designated safeguarding leads (DSLs) work as a team – depending on your size you could have anywhere from 10 to 50 DSLs/ deputies working across your trust. What structures do you have in place that allows them to share knowledge, work together, train together and support one another? Creating the space and the governance structure to allow your DSLs to work in this way will help drive your best practice. Furthermore, building in procedures that require post-incident reflection not only creates evidence of learning but also gives your trust the opportunity to review its approach and make changes to improve practice further.

Address safeguarding in your scheme of delegation – most schemes of delegation reference safeguarding but the best ones set out clearly who does what and precisely what is expected of the local governing bodies (LGBs), such as regular meetings between the DSLs and the safeguarding governor and an annual/termly audit and how the outcomes of those actions are reported up the governance structure. Again, consistency is the key.

MAT action plans and reporting to the chief executive and the board – focusing on safeguarding at this level is critical. It supports good governance, evidences how seriously the MAT takes safeguarding and, most importantly, when done properly, it improves safeguarding practices across the MAT. Your report should address key safeguarding concerns that have arisen, issues flagged following reviews and audits, emerging safeguarding issues and training needs, as a minimum.

Train your trust board, executive and LGBs to ensure they understand and can discharge their safeguarding duties – for steps one to four to work, MAT leaders need to create the governance structures, the model reports and the processes to make it all work. They will need training and support to do this successfully and for them to understand their role in ensuring excellent safeguarding practice from the top down.

Last year, the DfE asked schools to respond to a survey on how asbestos in England’s schools was being managed. Despite the deadline for responses being extended twice, 23% of schools had reportedly still failed to respond to the survey. The deadline was therefore extended once more until this February. It is important to note, however, that, ultimately, the duty remains in respect of compliance with the Control of Asbestos Regulations. Blue and brown asbestos were both banned in the 1980s, however, white asbestos was only banned in 1999 and it is therefore possible that any school built before the year 2000 could contain asbestos.

Asbestos has a latency period of 30–40 years between exposure and onset of diseases such as lung cancer or mesothelioma. Asbestos could therefore impact staff and pupils for many years to come. In fact, figures suggest that 5,000 people die every year in the UK from work-related asbestos exposure in the UK.

The Health and Safety Executive (HSE) advises that asbestos is only dangerous if disturbed or damaged and asbestos fibres are released into the air. The HSE’s view is that teachers and pupils are unlikely to be at risk during normal activities but advises that work should not be pinned/tacked to insulation boards or ceiling tiles (so as to not disturb the fibres). A particular group at risk are caretakers and contractors who, by the nature of their job, may well be at risk of disturbing asbestos fibres while carrying out maintenance or repairs.

The Control of Asbestos Regulations 2012 (www.hse.gov.uk/asbestos/regulations.htm) came into force in April 2012. Under the regulations, anyone who has responsibility for maintenance and/or repair of non-domestic premises, including schools, is a ‘dutyholder’. For most schools, the dutyholder will be the employer, which in practice will vary with the type of school. For academies, free schools, voluntary-aided and foundation schools, the actions or omissions of the school governors will be under scrutiny.

Under the regulations, there is a duty to manage the risk from asbestos. To manage the risk, the dutyholder must ensure that a suitable and sufficient assessment is carried out on whether asbestos is, or is liable to be, present in the premises. Where the assessment shows that asbestos is, or is liable to be, present, the dutyholder must ensure that:

• an assessment of the risk from asbestos is made
• a written plan identifying those parts of the premises affected is prepared
• the measures to be taken for managing the risks are specified in the written plan

The measures to be specified must include adequate measures for:

• monitoring the condition of asbestos
• ensuring that any asbestos is properly maintained or, where necessary, safely removed
• ensuring that information about the location and condition of any asbestos is provided to every person liable to disturb it and made available to the emergency services

Any plan also needs to be reviewed at regular intervals and updated as and when changes occur. In 2012, the All-Party Parliamentary Group on Occupational Safety and Health recommended that the government sets up a programme to remove asbestos from all schools, to remove the risk going forwards. Financing such a programme is a significant issue and the government did not take forward the recommendation.

Despite the challenges of finances, however, there have been warnings to schools in the form of prosecutions for failure to ensure they operate an effective and compliant health and safety system.

In addition to criminal prosecutions, civil claims can also arise from negligently exposing a claimant to asbestos fibres. Mesothelioma and lung cancer claims are often extremely emotive cases given the nature of the condition suffered by the claimant, which is typically fatal. The approach to be taken with these types of claims has troubled the courts given the difficulty in establishing causation of the injury. The approach taken is that the claimant must show that exposure has made a ‘material contribution’ to the development of the condition or risk of developing the condition. The time lapse between exposure and onset of disease (given the long latency periods) can make these claims challenging to defend. It is important to note, however, that the standard of conduct expected is of a ‘reasonable and prudent employer’ at the time of exposure taking place. While a higher duty of care is likely to be imposed on a specialist organisation, and schools would not be expected to have specialist knowledge about asbestos, all employers need to keep up to date with their peers/industry standards and ensure compliance with the regulations, as a minimum. It is therefore important that schools, as responsible employers, do not ‘bury their head in the sand’.

The Joint Union Asbestos Committee (JUAC) has reportedly gathered data via Freedom of Information (FOI) requests revealing a disparity in asbestos management across MATs. Undoubtedly, pressure is being placed on the government and the HSE in their regulatory capacity to deal with the issue of asbestos, and so it is likely to remain on the agenda for the foreseeable future.

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.

The scrutiny of multi-academy trust (MAT) performance by Ofsted has undergone some ‘operational changes’. The regime previously known as ‘focused inspections’ has been replaced by ‘MAT summary evaluations’ and Ofsted has released an operational note for inspectors to support this new approach.

At the core of the revised regime is a two-stage process. Under stage one, Ofsted will carry out ‘batched inspections’, inspecting, under section 5 or section 8, individual academies within the MAT. Stage two occurs after the publication of those inspection reports and will include meeting with MAT personnel, site visits to academies and telephone surveys with academies not inspected under stage 1. Ofsted draws on those findings to ultimately produce the summary evaluation letter that will highlight areas of strength and improvement. The outcome is solely narrative as opposed to any graded judgement.

Factors that Ofsted will typically consider when selecting a MAT for summary evaluation are listed at paragraph 13 of the operational note. It plans to inspect a ‘broad range’ of MATs and the list doesn’t give too much away; for example, there is no prescribed minimum size of MAT for summary evaluation. It seems clear, however, that cause for concern (whether due to volume of complaints, significant decline in results, warning notices or safeguarding concerns) is still likely to bump up the odds of a two-stage visit.

It remains the case that there is no legal basis for Ofsted inspecting the MAT entity independently under the inspection framework. Indeed, Ofsted has no power to even insist that MATs engage with summary evaluations under stage 2 and the ability for inspectors to carry out site visits under stage 2 is at the sole discretion of the MAT.

The number of MATs that will undergo summary evaluation will be small and it will be some time before we have a bank of precedents to refer to.

However, paragraph 39 of the operational note sets out a list of areas upon which inspectors are likely to concentrate and is certainly worth referring to. Paragraph 35 highlights the type of evidence that will be relevant. There is also still merit in looking back at Ofsted’s findings under the focused inspections regime as, notwithstanding the changes here and of course the imminent new school inspection framework, ultimately Ofsted is continuing to review the impact the MAT is having across its academies.

With Brexit fast approaching, the final test-phase of the EU Settlement Scheme opened on 21 January 2019, allowing EU nationals currently residing in the UK and with a valid passport or UK residence card, to apply to continue living, working and studying here post-Brexit.

EU migrants can apply for either pre-settled or settled status, depending on how long they have resided in the UK at the point of application. They will have until 31 December 2020 to secure residency in the UK to take advantage of the scheme, provided a withdrawal deal is agreed.

If the UK leaves without a deal, however, eligible EU migrants will need to be resident in the UK by 29 March 2019 to guarantee retaining the right to remain in the UK under the scheme.

EU citizens arriving in the UK after 29 March 2019, who wish to stay for longer than three months, will have to apply for European Temporary Leave to Remain. If granted, this will enable EU nationals to remain in the UK for a maximum of 36 months. Leave under this route cannot be extended and nor will it lead to settled status under the scheme, or count towards residency for the purposes of Indefinite Leave to Remain (ILR). Applicants will be subject to identity and criminality checks as part of the application. The Home Office has stated that EU citizens applying for the EU Settlement Scheme will not have to pay a fee.

If EU nationals want to stay in the UK after their EU Temporary Leave expires, they will need to apply for permission under the proposed new skills-based immigration system, which is due to come into effect from early 2021. Under this system, the general position is that eligible schools, academies or colleges will need to have a Licence to Sponsor skilled workers/students.

What you can do to prepare:

• Identify which of your employees/students are likely to be impacted by Brexit and consider what support you can offer – don’t forget the impact of family members, for example, spouses/parents.
• Raise awareness – make sure that EU citizens, line managers and leaders in your trusts, colleges, schools and academies are aware of the EU Settlement Scheme, including latest developments, and encourage early application under the scheme.
• Consider applying for a Tier 2 Sponsor Licence if you do not already have one – it is highly likely that this will be required to employ skilled European Economic Area (EEA) workers from early January 2021.
• If you already have a Licence to Sponsor, consider whether it needs to cover additional schools, given the reduction in EEA workers and likely skills shortage in the UK.
• Seek professional advice if you are unsure of your responsibilities.