News and guidance

Our manifesto, highlights the significant challenges facing school and colleges leaders now and for the foreseeable future. We are calling on the incoming government to commit to addressing these issues over the next Parliament and beyond. Our manifesto is based on our groundbreaking Blueprint for a Self-Improving System (www.ascl.org.uk/ blueprint). In the run-up to the General Election, we have called on all political parties to include these commitments in their manifestos:

1 Provide sufficient and fair funding

Schools are being hit by rising costs which amount to an 8% real-terms cut in their budgets by 2020. The situation in post-16 education is even more serious because these pressures come on top of funding cutbacks in the last parliament.

We call for a pledge from all political parties to:

• ensure per-pupil funding that addresses the immediate and predicted shortfall, which the National Audit Office expects to amount to £3 billion by 2020
• implement a national fair funding formula which creates equity between schools in different areas, so that no child is disadvantaged because of their postcode
• address, as a matter of urgency, the severe underfunding of post-16 education

2 Improve teacher recruitment and retention

The continuing difficulties in many schools and colleges in recruiting and retaining high-quality teachers puts the educational achievement of too many young people at risk – often in the most disadvantaged areas.

We call for a pledge from all political parties to:

• celebrate teaching as a great career and improve incentives to encourage more graduates into the profession
• implement a strategic recruitment plan that provides more good teachers for schools in shortage areas
• develop a career strategy for teachers, improve career development support and opportunities, thereby retaining more great teachers in the profession

3 Ensure education policy is based on evidence

For too many years, school and college leaders have felt that ideas emanating from government have been developed without a firm or robust evidence-base. This has led to a scattergun of reforms that cannot be tested in advance against outcomes.

We call for a pledge from all political parties to:

• develop any new policies in consultation with professional associations
• provide a clear basis of evidence for any proposals
• hold transparent consultation before any policy decisions are finalised
• establish, at the outset, evaluation models that ensure that any proposals will benefit young people from disadvantaged as well as advantaged backgrounds

4 Commit to curriculum stability

The curriculum and qualifications are undergoing a period of unprecedented and excessive reform. This has placed too much pressure on staff and on young people, and we are extremely concerned about the wellbeing of both.

We call for a pledge from all political parties to:

• implement no further reform to the curriculum or qualification system for the duration of the next parliament beyond existing announcements or consultations

5 Develop a long-term, shared vision for education

Education policy has sometimes felt piecemeal and lacking in coherence, with implementation achieved through compliance rather than agreement. High-performing jurisdictions typically have a long-term, shared vision for education.

We call for a pledge from all political parties to:

• commit to develop with the profession a long-term, shared vision for education

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

Following the announcement of a snap General Election, The Guardian quoted ASCL’s new General Secretary Geoff Barton calling on all political parties to invest in education as part of a long-term economic plan. Geoff also commented on a report by the Public Accounts Committee on capital funding for schools. He said that the DfE needs to do more to ensure that the creation of new schools represents value for money. He was quoted in TES, The Guardian, BBC News and BBC Radio 4.

ASCL has continued to campaign vigorously over the issue of funding. We responded to an earlier report by the Public Accounts Committee about the financial sustainability of schools saying that the DfE has buried its head in the sand over funding. Our comments were reported by BBC News, iNews and The Guardian.

ASCL Annual Conference in March, and our survey on the impact on schools of the funding crisis, received a great deal of media coverage, including BBC Breakfast and BBC national news broadcasts. It was also covered by ITV News, Sky News, Channel 4 News, BBC Radio 4, BBC Radio 5 live, BBC 2 Victoria Derbyshire show and a large number of local BBC and commercial radio stations.

Our funding survey was also covered by several national and local newspapers and websites, including BBC Online, TES, the Daily Mail, Schools Week and The Telegraph. There was also widespread coverage of ASCL Annual Conference, and our warnings over the impact of funding pressures, in many other newspapers, including The Sun, Daily Mirror and The Guardian.

The House of Commons Committee of Public Accounts (PAC) published a report on capital funding for schools (https://tinyurl.com/n233p9u).

Commenting on the report, ASCL General Secretary Geoff Barton said: “The PAC report reflects many of our own concerns. The DfE needs to do more to ensure that the creation of new schools represents value for money.

"It is particularly important that they are provided only in areas where they are needed. In the past this has not always been the case and this has contributed to a postcode lottery with spare capacity in some areas while others do not have enough school places. Creating surplus places is an inefficient use of public money and damages existing schools where spare capacity is created.

"It is also vital that the next government provides more funding to address the £6.7 billion needed to return all existing school buildings to satisfactory or better condition, and that it provides schools with the revenue funding they need for general maintenance."

The most frequent calls for support from the ASCL Benevolent Fund (ABF) come from members who have found themselves in difficulties because of illness, accident or redundancy. There are, however, just a few beneficiaries for whom the Trustees have a long-term commitment. These are widows or dependants of former members, whose death occurred before the Teachers’ Pension Scheme made proper provision for them.

One such beneficiary is Becky, the daughter of a former member of the Headmasters’ Association (HMA), one of the predecessors of ASCL. Becky has Down’s syndrome and has been a beneficiary since childhood. She is now 47, is well cared for and lives in sheltered accommodation. The ABF keeps in touch with her and with her mother and makes small gifts from time to time. At Easter, we sent a flower arrangement to Becky and her mother wrote back to us and said:
“Please pass on our thanks to the members of ASCL Benevolent Fund for the beautiful flower arrangement for Becky. She is delighted with it. It truly is a lovely arrangement.”

Becky was not the only one to receive an Easter gift from the ABF. Members who are currently being supported and others known to be experiencing difficult professional or personal problems have also received a small gift from us to let them know that we are here for them and that we care. And we know, from the many messages we get back, that these gifts are greatly appreciated and often give a boost to morale when it is most needed.

One beneficiary who is a Deputy Head, said: “I have just received the most generous Easter gift from the ASCL Benevolent Fund. I would like to thank you and all those involved with this fund, as your continuing support for me while I am unable to work means so much.”
This important, but largely unseen, work of the benevolent fund depends very much on the involvement of ASCL staff and the meticulous attention to detail of the ABF Secretary who together respond to requests swiftly and efficiently.

• If you know someone you think may benefit, please tell them about the ASCL Benevolent Fund. And if you think you may benefit yourself, please contact the ASCL Hotline on 0116 299 1122 or email lisa.oldham@ascl.org.uk for more information.

The Health and Education Select Committees have published a report that highlights the impact of real-term education budget cuts on children and young people’s mental health and wellbeing (see https://tinyurl.com/mdw8gaq). The report has found that financial pressures are restricting the provision of mental health services in schools and colleges and the committees are now calling on the next government to review the effect of budget reductions in the education sector.

Commenting on the report, ASCL General Secretary Geoff Barton said: “This report reflects the findings of our own recent survey of school leaders which found that half of respondents have had to cut back on mental health support services for students, such as counselling and educational psychologists, as a result of the education funding crisis. Schools and colleges are having to make significant real-terms cuts in their budgets as a result of government underfunding. This affects their ability to provide support services, as well as hitting curriculum provision and meaning larger class sizes.

“The impact on mental health support is particularly concerning at a time when the incidence of mental health problems among young people is increasing. School and college counsellors play an important role in identifying problems and providing support at an early stage, referring young people to specialist local mental health services where necessary. Unfortunately, these services are also severely underfunded and there are significant gaps in this provision in many areas. The next government must fund schools and colleges sufficiently so that they are able to provide the support their students need, and it must invest more in specialist mental health care beyond the school gates.”

Your CPD
ASCL Professional Development is running a half-day seminar on Developing a Whole School Approach to Mental Health and Wellbeing on 5 July in London – find out more and book your place online here www.ascl.org.uk/mentalhealth

The DfE is updating its model Articles of Association to remove the provisions that provide for the suspension of trustees. Articles 67A–67E of the DfE’s current model Articles (version 5) enable a trustee to be suspended from attending meetings for a period of up to six months where a trustee “has acted in a way that is inconsistent with the professional ethos of the board … and has brought or is likely to bring the academy trust or the office of trustee into disrepute.”

However, the DfE has reflected that, unlike in the case of governing bodies of maintained schools, the concept of suspension is not appropriate for a company. It can be a grey area in terms of the relevant legal duties that an individual has as a director of a company and a trustee of a charity. It is therefore advising new academy trusts and those existing academy trusts amending their Articles of Association, to remove the suspension provisions from the Articles.

In order to address any conduct that may bring an academy trust into disrepute, trusts should ensure that they implement a robust code of conduct and, where appropriate, terms of reference to enable any concerning behaviour to be tackled in accordance with established procedures and expectations.

ASCL Pay, Conditions and Employment Specialist Sara Ford has published two new guidance papers for members:

Setting Pay for Executive Heads/Principals and Chief Executive Officers

This paper is designed to assist employers when setting pay for executive heads/principals and chief executive officers (CEOs) in England. It may also be relevant to governing bodies, school and college leaders and business leaders.

It is essential that setting pay for executive heads/ principals and CEOs is transparent and achieves value for money. The trust’s pay policy should include details of how pay is set and arrangements for progression, and any bonus payments where applicable.

This paper looks in more detail at effective leadership models, the three-stage process, pay setting and pensions.

• Download the guidance online here www.ascl.org.uk/settingpay-execheads

Using the Headteacher Standards

This guidance paper is intended to support members in understanding the Headteacher Standards and how to use them appropriately and effectively.

The guidance paper is relevant to governing bodies, trust boards, local authorities, headteachers and aspiring headteachers in schools and colleges in England and Wales, and across all phases, from nursery schools to post-16 settings. The paper looks in greater detail at how to use the standards and how to use them to inform a job description.

Download the guidance online here www.ascl.org.uk/headteacherstandards

The Supreme Court has ruled unanimously against the father who had won earlier legal battles regarding a fine imposed following a term-time holiday taken without permission.

The judges have ruled that regular attendance in school had to be in keeping with rules of the school, with the government welcoming the decision that ‘no child should be taken out of the school without good reason’.

The issue for the courts to consider were the words “fail to attend regularly” in section 444(1) of the Education Act 1996.

The Magistrates’ Court and the High Court had previously decided that the father had no case to answer because his daughter had attended school regularly, in that her attendance was at 90% for the academic year to date as at the end of the unauthorised absence period.

The Supreme Court disagreed, saying that “regularly” did not mean “evenly spaced” or “sufficiently often” but instead “in accordance with attendance rules”. As well as ensuring that pupils attend at all required times, this interpretation was preferred by the Supreme Court because it said it offered certainty to schools and parents on whether or not an offence is committed when taking a child out of school without leave.

The DfE supported the Isle of Wight council in challenging the rulings. A spokeswoman for the DfE is quoted as saying “We have tightened the rules and are supporting schools and local authorities to use their powers to tackle unauthorised absence.”

Delivering the judgment, Lady Hale said, “Unauthorised absences have a disruptive effect, not only on the education of the individual child but also on the work of other pupils.”

ASCL, in partnership with Browne Jacobson LLP, have published a new information paper highlighting key considerations for schools as a result of this decision. The paper outlines the options available if a pupil fails to attend regularly, together with considerations relating to the information that schools currently prepare and publish regarding attendance.

• Download the information paper here: www.ascl.org.uk/termtimeabsences

As part of the post-16 area reviews, the government is offering sixth form colleges the opportunity to apply to become academies. In implementing the proposals, the consultation requirements for dissolution of a sixth form college corporation, as set out in Sections 33N and 33O of the Further and Higher Education Act 1992 and the Sixth-Form College Corporations (Publication of Proposals) (England) Regulations 2012 (‘the Regulations’), must be complied with.

If a sixth form corporation proposes that the corporation should be dissolved, then in accordance with the Regulations, they must publish details of the proposal at least four months before the specified dissolution date. This publication must feature in (i) at least one newspaper circulating in the area served by the corporation to which the proposal relates and (ii) in at least one national newspaper. The Regulations sets out certain key information that the corporation must publish in the proposal.

The requirement for the corporation to consult on the proposal is a strict one and the corporation must take account of the views expressed during the consultation. In accordance with the Regulations, a copy of the proposal must be sent to key stakeholders who should be given enough intelligible information about what is being proposed to enable them to properly scrutinise the plans. Timing is key to the consultation process. Corporations must provide for a period of at least one month beginning on the day of publication for representations to be made on the proposal. The corporation must take account of the views expressed in any representations received and those consulted should be aware of the closing date for responses. The corporation must then publish a summary of the consultation within two months beginning on the date after the end of the consultation period.

Care should be taken when the consultation period straddles holidays. We would recommend that where a time period straddles a holiday period, the consultation should be extended by the length of the holiday in question, and that a consultation period should not end during a holiday period.

The government has recently tabled amendments to the Children and Social Work Bill that, if approved, will make it a requirement that all secondary schools in England teach relationship and sex education (RSE) – including academies and free schools. The government has said that this could be implemented as early as September 2019.

The government has acknowledged that the RSE guidance introduced in 2000 is increasingly outdated and fails to address risks to children “which have grown in prevalence in recent years”, confirming that these issues are being addressed and that we can expect a new internet safety green paper later this year.

Parents will continue to have the right to withdraw children from aspects of RSE, and schools will be required to publish a clear statement of both their policy and what will be taught to enable parents to make informed decisions about whether their children participate. Any aspects that relate to the National Curriculum for science will remain compulsory.

Schools will continue to have flexibility over how they teach RSE, to enable their approach to be sensitive to the needs of their local community and any school faith.

The government is also proposing the introduction of “relationship education” in primary schools. The focus here will be on “building healthy relationships and staying safe”. The amendments also allow the government to make regulations requiring PSHE to be taught in all schools in future.

Schools looking to convert to academy status should be aware of the recent increase in the number of local authorities (LAs) charging significant sums for their legal and other services in supporting the process.

While some LAs have traditionally charged a fee, most have not. The recent spike in both the number of LAs charging and the amounts being charged, reflects the financial and work pressures that are being placed on LAs. Those LAs that have always charged, tend to look to recover from £2,000 to £4,000, but there are examples of this rising to £8,000 in some instances.

The DfE, in recognition that this is an issue, has provided a grant to support LAs’ capacity to manage academy conversions. However, this does not appear to have led to a reduction in the amounts being charged.

The options open to a converting school in disputing the LA’s position are limited, as the school is reliant on the LA engaging with the conversion process. Additionally, the DfE is currently unlikely to get involved unless the LA is looking to charge for actions that it is statutorily required to provide, for example, discharging its obligations under Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

We recommend that schools agreeing to pay the LA charges should look to ensure that they are getting value for money for the use of public funds.

Examples should include:

• ensuring that the fee is capped at an agreed figure
• making payment subject to receiving a full breakdown of how the fees were incurred
• linking the fee to a service level agreement to ensure that the LA adheres to Key Performance Indicators (KPIs) and meets specific deadlines

Many schools have dress code policies for both staff and students that are intended to ensure a consistent and professional image throughout the school. But how do you make sure that your dress policy does not unfairly disadvantage or discriminate against specific individuals? One of the most important questions will be whether the policy is fair and proportionate, and if it is applied equally to all staff.

In the case of Achbita and another v G4S Secure Solutions NV the European Court of Justice (ECJ) held that the banning of headscarves (and other forms of religious dress) was not direct discrimination because the employer was able to show that the ban was applied equally to all staff in contact with clients. The ECJ did accept that a ban could amount to indirect discrimination, but that an employer’s desire to project an image of neutrality towards its customers is potentially a legitimate aim. Any means of achieving this aim must be reasonable – for example, in the case of Bougnaoui and another v Micropole Univers that was heard at the same time, it was stated that enforcing a policy as a result of customer complaints cannot be defended on the basis of a “genuine and determining occupational requirement” of the job and, therefore, would most likely amount to both direct and indirect discrimination.

While on the face of it, the case of Achbita appears to suggest that a school-wide policy of banning staff from wearing any religious dress may not amount to direct discrimination, it is highly likely that the same policy could be regarded as being indirectly discriminatory. As such, you should seriously consider the wider implications of a policy such as this and whether or not you could be justifiable given your particular circumstances before implementing it in your school. If in doubt we would recommend seeking legal advice.

For many schools, the summer term brings with it the need to attend admission appeals. In preparing for the appeals, paragraph 2.9 of the School Admission Appeals Code 2012 requires admission authorities to provide evidence to show:

• how the admission arrangements and co-ordinated scheme applied to the appellant’s application
• the reasons for the decision to refuse admission
• how the admission of an additional child would cause prejudice to the provision of efficient education or efficient use of resources

The key document to fulfil these requirements is the prejudice statement. This document sets out all the reasons to persuade the appeal panel that there were no errors made in dealing with the application, that the admission arrangements are lawful and, importantly, why the school cannot admit further pupils. As a minimum, the prejudice statement should cover the following:

• School background – ethos, admission policy, numbers on roll, capacity, published admission number (PAN) (and reasons why exceeded – appeals and fair-access admissions). Any statistics around capacity and numbers on roll can cover the whole school and year group in question and should show the effect of admissions at the school over a number of years. Where the admission arrangements are complex and include issues such as banding or random allocation, it may be useful to explain how these operate.
• Resources – staff numbers, teaching accommodation, classroom sizes in general and specialist rooms, social areas. Set out whether there have been recent changes to resources available and impact on admissions.
• The problems that further admissions would cause – reduced performance/ outcomes, less individual time for pupils, stress for staff, overcrowding in lessons (especially in specialist areas) and social times (dining rooms, corridors, etc.) and associated health and safety concerns, such as problems accessing school facilities including toilets.

From 6 April 2017, changes have been introduced to the tax rules where individuals provide their services to a client in the public sector, via an intermediary such as a personal services company (PSC). These tax rules are commonly referred to as IR35.

The IR35 rules allow HMRC to look through the intermediary (which is often, but not always, a PSC), and look at the underlying relationship between the worker and the client. If that underlying relationship would be one of employment (essentially ignoring the PSC) or office, then the IR35 rules apply. That can result in employment taxes and National Insurance (NI) contributions being due in respect of the payments made by the client for the relevant services provided.

Traditionally, the general position has been that the responsibility for paying any relevant tax/NI falls to the PSC rather than the client. However, the new changes to the rules mean that where services are being performed for a ‘public authority’ (including both maintained schools and academy trusts) that responsibility will now fall to the client paying for the services rather than the PSC.

This means that any public sector school or academy that contracts with individuals providing their services via a PSC, and where the underlying relationship between the client and worker is one of employment (for this purpose looking through the PSC), will be treated as the employer for tax and NI purposes and so has to account for the employment tax and NI. If those services are provided via a third party, such as an agency, then it will be the agency rather than the school or academy that will be responsible.

Public sector clients must also inform the relevant party with whom they have a contract whether the contract falls within the new IR35 rules or not. For contracts that started on or after 6 April 2017, this decision should be notified before the contract start date, or before the provision of the services begins. For contracts already in place, the decision should be notified before the date of the first payment made on or after 6 April 2017. This conclusion can be included in the contract or separately. If the public sector client fails to notify its decision within the timescale, they may become liable to account for the tax and NI.

HMRC has an online employment status indicator tool (ESI) that clients can use to run through a series of questions, to assist in deciding on the employment status (see https://tinyurl.com/zg4ufoc). Alternatively, you may wish to take legal advice on any particular employment status scenario.