October 2018

NEWS AND GUIDANCE

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News and guidance

ASCL Policy Team

Our Policy Team takes the policy positions determined by Council and works with government and other organisations to try to make them happen. Expand

Our Policy Team takes the policy positions determined by Council and works with government and other organisations to try to make them happen. When they’re not deep in discussion at the DfE, the team is in great demand as speakers at conferences and other events and as authors of reports, articles and blogs. They are also well known for their collective love of prosecco!

Director of Policy Julie McCulloch has worked for ASCL for three years, initially as our Primary and Governance Specialist before heading up the team from November 2017. Julie spent the first part of her career in educational publishing, before moving into policy. She is an experienced school governor, a trustee of a rapidly growing MAT and a former board member of the Cambridge Primary Review Trust (CPRT). @juliecmcculloch

Deputy Director of Policy Duncan Baldwin’s areas of responsibility include overseeing our work around curriculum and assessment, performance data, Ofsted and information and communication technology (ICT). Duncan qualified as a maths teacher and followed a career as a teacher and school leader. More recently he worked as a consultant for Capita, focusing on using data for school improvement. @Duncan_Baldwin

Business Leadership Specialist Hayley Dunn is the latest addition to the team and is joining ASCL in November. Hayley’s background is in accountancy and finance, having worked in the private and public sectors. She is a qualified accountant and has held senior business leadership roles in the maintained and academies sector, most recently as the finance director of a MAT. She was one of the Institute of School Business Leadership’s (ISBL’s) CEO Award winners in 2017 and is the author of the recently published School Business Manager’s Handbook. @ShropshireSBM

Parliamentary and Inclusion Specialist Anna Cole is a law graduate and qualified solicitor. Anna spent nine years working as a solicitor in private practice, in a law centre, for the National Council for One Parent Families, and in the policy department of Liberty. Anna leads for ASCL on education-related legislation and on areas such as safeguarding, equalities, special educational needs and disability (SEND), mental health, radicalisation and extremism. @annamcole

Pay, Conditions and Employment Specialist Sara Ford leads on negotiations with the DfE, the School Teachers’ Review Body (STRB) and employers on behalf of members. Before joining ASCL in 2013, Sara spent 14 years as a policy official at the DfE, advising ministers on several policy areas, including pay and conditions as well as spending five years working on the academies programme. She is also Vice Chair of the Board of Trustees of a MAT. @SaraFordEduc

Prior to joining ASCL in 2015, Post-16 and Colleges Specialist Kevin Gilmartin spent 30 years working in post-16 education. This included roles in a comprehensive secondary school and senior positions in three large, inner-city FE colleges, before finishing his teaching career as a sixth form principal in London. He also worked for a year as the chief operating officer of an internet start-up company, as well as running a small accountancy services company on a part-time basis.

Funding Specialist Julia Harnden worked for HSBC’s corporate banking division before moving to the education sector. Prior to joining ASCL in 2015, Julia was Director of Finance at Caroline Chisholm School in Northampton. Julia has supported school leaders in both the primary and secondary phase, in areas including strategic financial planning and monitoring, private finance initiative (PFI) contract management, academy conversion and leading capital projects. @julia_harnden

Before joining ASCL, Curriculum and Assessment Specialist Suzanne O’Farrell was headteacher of a large secondary school in Staffordshire. Suzanne originally trained as a modern languages teacher, and her previous roles include head of a large sixth form (offering the International Baccalaureate (IB) and A levels), deputy headteacher, local leader of education and part-time Tutor Fellow at the University of Keele. @OfarrellSuzanne

Steve Rollett joined ASCL as Inspections and Accountability Specialist in September 2016, supporting members across a range of issues in relation to Ofsted and school accountability. Prior to this, he was a vice principal in a challenging secondary school that he helped to transform from ‘inadequate in all areas’ to become one of England’s most improved schools in less than two years. Steve originally trained as a history teacher. @steverollett

Independent Schools Specialist Barbara Stanley was a headteacher for 19 years in two British and one Irish independent all-through girls’ schools. Before that, she taught in both single sex and co-ed schools, in the maintained and independent sectors, and held both academic and pastoral middle leadership posts. @IndBarbara

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Additional benefits for members

ASCL members receive discounts and special rates on a range of products and services. Expand

ASCL members receive discounts and special rates on a range of products and services. Through our partners, members can take advantage of preferential rates on healthcare services, car insurance and financial advice, as well as discounts on education tools, performance management systems and self-evaluation surveys. We are pleased to announce that many of our partners have renewed their contracts with us and they will be continuing to provide special discounts to ASCL members. In addition, we are widening the range of individual member benefits available and we will soon be launching new benefits for you, including will-writing services, discounted holidays and energy savings.

A wide range of well-known organisations offer discounts and special rates on a range of products and services negotiated specifically for ASCL members. In many cases ASCL has negotiated commercial agreements with the supplier, which helps us to keep members’ subscriptions as low as possible. For a full list of our partners and to find out more about what they can offer, see the ASCL website: www.ascl.org.uk/memberbenefits

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Gender separation

The DfE has published non-statutory guidance entitled Gender Separation in Mixed Schools as a follow up to the Court of Appeal’s decision in the Al-Hijrah case regarding discrimination arising from segregation on the grounds of sex within a co-educational school. Expand

The DfE has published non-statutory guidance entitled Gender Separation in Mixed Schools as a follow up to the Court of Appeal’s decision in the Al-Hijrah case regarding discrimination arising from segregation on the grounds of sex within a co-educational school.

The Court of Appeal ruled that such practices constituted unlawful sex discrimination. The DfE guidance confirms that approach and works on the presumption that co-educational schools must be based on practices that are co-educational. Under the brief guidance, the DfE set out clearly that any separation on the grounds of gender that denies the opportunity to interact socially or in an educational setting is likely to be detrimental to the individual pupil and therefore may constitute direct discrimination contrary to the Equality Act 2010. The DfE will require schools to justify their actions to Ofsted and other interested stakeholders.

The DfE recognises that there may be limited grounds on which separation could take place – positive discrimination (that is, to correct a current disadvantage applicable to one sex), single-sex sports (where physical strength, stamina or physique may place girls at a disadvantage), in exceptional cases or, finally, where the impact is negligible. There is also reference to toilet and boarding accommodation being separated on the grounds of gender.

However, it is important to note that the guidance is ‘non-statutory’. It is not binding on schools and does not constitute legal advice. Any school in this situation is advised to seek legal advice as a matter of urgency.

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Cautious welcome for pay award

ASCL issued a joint press release together with the NAHT and NEU welcoming the announcement on 24 July of a 3. Expand

ASCL issued a joint press release together with the NAHT and NEU welcoming the announcement on 24 July of a 3.5% pay increase for classroom teachers on the main pay range. We believe that this shows that the penny may have dropped in terms of the government recognising the scale of the teacher recruitment and retention crisis. However, we also expressed a number of concerns:

  • The pay award is not fully funded. The DfE is still expecting schools to fund 1% of the cost from severely strained budgets, and is only funding the additional expenditure above 1%. The independent Institute for Fiscal Studies recently published analysis that shows that funding per pupil in England fell by about 8% in real terms, and about 5% in Wales between 2009–10 and 2017–18.
  • It is unacceptable that pay awards for leaders and for teachers on the upper pay range will only be funded at a lower rate, and this decision flies in the face of the recommendation made by the independent School Teachers’ Review Body (STRB) for an across-the-board increase on pay and allowances at the same rate. The pay award is supposed to reflect the cost of living and therefore paying it at different rates is unfair and demoralising – especially at a time when recruiting leaders to schools is so challenging.
  • We are disappointed that the Treasury has refused to fund the pay award and left it to the DfE to find the necessary funding by cutting other areas of the education budget that are also important. Our education unions believe that the Treasury has a responsibility to fund pay awards for public servants as recommended by the independent pay body.
  • While the pay award is an improvement on previous years it doesn’t redress the years of pay freezes and pay caps that have eroded the value of teachers’ pay in real terms and contributed to the teacher and leader recruitment and retention crisis. Our three unions had called for a 5% across-the-board increase for all teachers and leaders and we will continue to press for an improved deal in future years.
  • The announcement has come far too late to give schools sufficient time to prepare budgets for a pay award that is supposed to be operative from September, particularly as school summer holidays had already begun. The government must announce its decision on the annual pay award much earlier in future years.

Commenting on the announcement, ASCL General Secretary Geoff Barton said:

“The DfE and the Secretary of State deserve credit for an improved pay award and a commitment to providing extra funding. However, it is deeply unfair that the pay award for leaders and for teachers on the upper pay range will be funded at a lower rate and they will regard this decision as a kick in the teeth for their hard work. It is also regrettable that the pay award is only partially funded and that the DfE has had to find that money from down the back of the departmental sofa as this will impact on other education services.

“This is clearly a short-term political solution driven by the refusal of the Treasury to fund the pay award and we need longer-term strategic thinking from the government as a whole.”

Read the full press release online at www.ascl.org.uk/TeachersPayResponse

At the time of Leader going to print, the School Teachers’ Pay and Conditions Document (STPCD) was out for consultation until 3 September.

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Have you changed jobs this term?

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. Expand

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.

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In the news

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

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

ASCL General Secretary Geoff Barton wrote to Education Secretary Damian Hinds warning that the funding pressure on schools and colleges poses a threat to educational standards. He cautioned that any further upward pressure on costs would be “unaffordable and catastrophic”. Geoff was quoted in a BBC story ‘The school with 300 holes in the roof’ (www.bbc.co.uk/news/education-44456241) and he was interviewed on BBC Breakfast.

We also sent joint letters with other education unions to the Education Secretary urging him to announce his decision on the teachers’ pay award and for it to be fully funded, and this was covered in The Times, The Guardian, BBC News and TES, among others. And we responded to the government’s eventual announcement with a joint statement (see left). We also issued a statement with education unions in Wales calling for the funding needed to implement the pay award in Welsh schools. It can be read here: www.ascl.org.uk/JointPayWales

TES highlighted problems experienced by schools in recruiting teachers from outside the EU because of government restrictions on visas, and launched a campaign #LetThemTeach supported by ASCL and other education unions. You can read about it here https://tinyurl.com/y8f3kora ASCL General Secretary Geoff Barton said, “Schools need to be able to recruit from overseas because there are simply not enough teachers in this country. The last thing they need is an obstacle created by the Byzantine bureaucracy of the immigration system which blocks this supply line.”

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2018 exam results

Commenting on the publication of results for A levels, AS levels and vocational qualifications, ASCL General Secretary, Geoff Barton, said: Expand

A levels, AS levels and vocational qualifications

Commenting on the publication of results for A levels, AS levels and vocational qualifications, ASCL General Secretary, Geoff Barton, said:

“Congratulations to all those students who have achieved the results they wanted not only in A levels and AS levels but also in vocational qualifications which often go unsung on results day but which provide excellent opportunities for many students year in and year out. To those who may have missed their targets we would urge them not to despair as there will be a range of options available to them and they should take pride in what they have achieved in qualifications which were already tough and which have become tougher as a result of government reforms.

“And congratulations to the schools, colleges and teachers who have steered their students through the new courses and exams. Eleven new A levels were sat for the first time this year, 13 last year and a further tranche will be sat next year, and there have also been major changes to vocational qualifications. All this is in addition to the biggest overhaul of GCSEs in their 30-year history. The sheer weight of these reforms has placed an intolerable additional strain on staff and students and we have no doubt that this has affected the mental health and wellbeing of a proportion of young people and teachers. The government must pay heed and ensure that any future reforms are introduced in a more manageable and considered manner.

“Today’s results show further significant declines in the number of entries to A level French and German. This is part of a long-term downward trend at A level and also at GCSE. Even Spanish which has been relatively stable previously has seen a fall in A level entries this year, and we must face the fact that we are in danger of becoming a monolingual society. The government’s attempt to boost languages through the dubious incentive of school performance tables is clearly not working. Schools and colleges need sufficient funding and teachers, and we need a national strategy to boost language uptake.

“Creative and technical subjects such as music, drama, and design and technology are also under intense pressure with A level entries continuing to decline. Government performance measures which favour traditional academic subjects, combined with severe funding pressures, have pushed these subjects to the fringes of the curriculum. We must do more to value and cherish these subjects as a vital part of our cultural heritage and also our economy.

“We are clearly seeing a pattern at both GCSE and A level of the curriculum narrowing. This is a direct result of the government’s underfunding of the education system, severe teacher shortages and performance measures which prioritise a select group of subjects.”

Results from a recent ASCL survey have shown that A level music, French and German are in danger of disappearing from state schools and colleges in England because of severe funding pressures. For more details, see: www.ascl.org.uk/FundingAlevels

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GCSE results

Our press release following publication of GCSE results included this message from Geoff: Expand

Our press release following publication of GCSE results included this message from Geoff:

“Congratulations to students and teachers on today’s GCSE results. They have weathered the storm of an unprecedented year of upheaval with 20 new GCSEs being sat for the first time and they deserve full credit for the results achieved today.

“The reformed GCSEs are harder than their predecessors. They contain more content and more papers and the bar has been set deliberately higher to achieve the new top grade 9. We are concerned about the additional pressure this has placed on students and teachers and the impact on their wellbeing, and we are not clear why the government felt it necessary to ratchet up the pressure to such an extent and what this was intended to achieve.

“We are particularly concerned about the impact of the new grading system on students who have recorded grades at the lower end of the scale. The government’s decision to describe a grade 4 as a ‘standard pass’ and a grade 5 as a ‘strong pass’ sends a negative message to those who attain grades 1, 2 and 3. These young people have completed demanding courses and we must find a better way to credit their achievements.

“While today’s results are stable at a national level, there may have been volatility in the results of some schools. Teachers will have done their utmost to prepare young people for these exams but there are 20 entirely new qualifications which are relatively unfamiliar, and three qualifications which were only sat for the first time last year. It is important that nobody rushes to judgement over a single set of results and that government, regulators and governing bodies take into account this context.”

Read the full press release at www.ascl.org.uk/GCSEResults2018

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Medical conditions

Some medical conditions are automatically considered to be disabilities for the purposes of protection under the Equality Act 2010 ( Expand

Some medical conditions are automatically considered to be disabilities for the purposes of protection under the Equality Act 2010 (‘the Act’). Described as ‘deemed disabilities’, these include cancer, human immunodeficiency virus (HIV) infection and multiple sclerosis. Such patients do not need to demonstrate that their condition meets the normal requirements for a disability under the Act, for example, that the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities.

The recent case of Lofty v Hamis t/a First Café has looked at whether a pre-cancerous condition could be a disability for these purposes.

Ms Lofty, a café assistant who was treated for malignant cells on her cheek, brought claims at the Employment Tribunal of unfair dismissal and disability discrimination. While the tribunal upheld the former, it found she did not have a disability as she had been treated for a pre-cancerous condition that was not invasive and had not developed further.

However, the Employment Appeal Tribunal (EAT) overturned the earlier judgment. As Ms Lofty had an ‘in situ’ melanoma, meaning that there were cancer cells in the top layer of her skin, the EAT considered that she came within the definition. While the condition was not (yet) invasive, the Act did not distinguish between forms of cancer. As such her condition was considered a disability.

Some uncertainty remains that will require clarification in the future:

  1. The EAT acknowledged that ‘pre-cancerous’ cells may differ depending on the location of the cells in the body.
  2. The extent of the new boundaries for diagnosing cancer remain unclear with respect to other ‘grey areas’ of diagnosis.
  3. The flexibility in diagnosing cancer as a deemed disability may in the future extend to the other disabilities protected in this way by para 6 (HIV infection and multiple sclerosis), or even other protected characteristics.

Considering the above, when managing their staff, schools and colleges need to remember that no distinction should be drawn between types of cancer, and that robust medical evidence should be obtained in such circumstances before an employer takes negative action in relation to a member of staff with a ‘pre-cancerous’ condition. In addition, schools and colleges should also bear in mind that it is possible the boundaries of other deemed disabilities will be similarly extended.

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Guidance on exclusions

‘Tendency to physical abuse’ should no longer be considered an automatic defence to disability discrimination claims arising out of the exclusion of school pupils. Expand

‘Tendency to physical abuse’ should no longer be considered an automatic defence to disability discrimination claims arising out of the exclusion of school pupils.

Since the Equality Act 2010 (Disability) Regulations 2010 (S.I. 2010/2028) and the leading case of X v The Governing Body of a School (SEN) [2015] UKUT 0007 (AAC) schools have been able to rely on Regulation 4(1)(c) Equality Act 2010 as a defence to any alleged discrimination towards pupils arising out of a decision to exclude if it could be shown that the reason for this was a result of the pupil’s ‘tendency to physical abuse’.

The effect of those measures meant that schools were not required to show a reasonable adjustment before excluding a disabled child on grounds of their behaviour if this had resulted in physical abuse towards staff or students – even if such behaviour manifested as a result of their disability and was outside their ability to control.

However, the judgment in C&C v The Governing Body of a School [2018] UKUT 269 (AAC) has ruled the Regulation 4(1) (c) defence incompatible with human rights law and the need to ensure that disabled children are not discriminated against in their access to education.

The case

The appeal was brought by parents of a child who was diagnosed with autism, anxiety and pathological demand avoidance. The first-tier tribunal applied Regulation 4(1)(c) and held that a fixed-term exclusion was a result of a ‘tendency to physical abuse’ and so the parents were prevented in law from claiming that the school had discriminated against the child on disability grounds.

The appeal did not challenge the first tribunal’s factual finding that the child did behave in a physically abusive manner, but on the legal basis that the interpretation of Regulation 4(1)(c) was incompatible with Article 14 (read with Article 2 of Protocol 1) (‘A2P1’) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Evidence at the appeal suggested that some children with disabilities such as autism or attention deficit hyperactivity disorder (ADHD) may lash out at others around them in school and these ‘meltdowns’ may be caused by children being overwhelmed or frustrated; this behaviour may be intrinsic to their underlying disability and out of their control.

Judge Rowley considered first whether there is a difference in treatment under the law between children whose disability manifests in physically abusive behaviour, and other children whose disability did not. Having identified that children who required protection under the law were being treated differently, the judge questioned whether the difference in treatment could be justified. Ultimately, the judge found that it could not, and so dis-applied the Regulation 4(1)(c) provision in relation to education exclusions.

What effect will this have on schools?

A significant proportion of children with disabilities who are excluded from schools follow reports of physically abusive behaviour. In practice, the pastoral ethos of many schools is that such exclusions are always and only ever considered as a last resort, and much greater tolerance given towards children whom are less able to control their behaviour.

However, it will now be necessary to demonstrate in relation to a child whose disability is recognised to manifest itself in a physically abusive way that reasonable adjustments and alternatives have been actively considered, explored and ruled out before deciding to exclude a child whose disability may have caused their behaviour.

The need to properly justify any such exclusions does ultimately give better protection for children and is already the policy of many of the schools and academies nationally. This development in the law is likely to be welcomed by parents of autistic children and recognised as an appropriate refinement by education providers.

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GDPR implications

The new General Data Protection Regulation ( Expand

The new General Data Protection Regulation (GDPR) regulations are encroaching on everyday school activities such as subject access requests (SARs) but what about the more unusual situations?

The Teaching Regulation Agency (TRA) receives serious complaints (previously heard by the National College for Teaching and Leadership (NCTL)) about teachers, which range from maladministration to inappropriate conduct. In these circumstances, a trust or school could be approached to release information and data that they hold on the individual. This could be personnel files or email exchanges.

In these circumstances, what are your obligations and what are your options?

The defence in these circumstances will be interested in their own personal data and under GDPR, they are of course entitled to receive that information, subject to the usual caveats and exemptions. However, these situations are rarely isolated to the one individual and files of third parties related to the incident under investigation may be requested.

In what circumstances can these be released?

Simply because the request comes from an ‘authority’ during an investigation does not automatically mean that all data should be released. This is the same with any law enforcement agency or similar. A reasoned approach must be taken and certainly consideration given as to why the information is wanted, how wide ranging the request and the reasonableness of the request.

Is the information likely to reasonably assist the prosecution or the defence of the proceedings rather than being a speculative request and is the information requested relevant to the investigation?

If you have any concerns in this regard it is worth being aware that the trust can ask the investigating authority to seek a direction from the Secretary of State for Education pursuant to Regulation 5(3) of the Teacher Misconduct (England) Regulations 2012. Once the Secretary of State has considered the validity and relevance of the request, he can issue a direction so that the trust is required to submit the information requested. At this point the processing of data will automatically become lawful processing under the requirements of GDPR. It is further open to the trust to require the recipients of the information to inform any third parties that information that includes reference to them may be disclosed or used in public proceedings, before it happens. This enables the trust to demonstrate that they are doing everything they can to ensure that their staff’s personal data is properly managed.

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Notes on guidance

Leader contains general guidance on the law that has been supplied by our Premier Partner for legal and HR services, Browne Jacobson LLP. Expand

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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Workplace wellbeing

Taking care of the health and wellbeing of your staff is key; get this right and you’ll see greater staff retention and better talent attraction. Expand

Taking care of the health and wellbeing of your staff is key; get this right and you’ll see greater staff retention and better talent attraction. Establish a culture of wellbeing by pursuing a strategy focused on prevention, intervention and protection. You can do this by:

Identifying the top five reasons for sickness and leaving. What does this information tell you? Set SMART (specific, measurable, achievable, relevant and timely) objectives to measure the impact that your activity has on these reasons and compare that with the outcomes for students and other measures that you have in school.

Reviewing your absence policy and maximising the use of your support facilities such as Occupational Health and Employee Assistance Programmes.

Finding out what other services are available to your employees in your local area. A good wellbeing programme will be able to signpost employees to help and support.

Providing space for staff to relax and take time out. Consider flexible working options. Plan your calendar so that key events do not collide, complete workload assessments and encourage time for planning before holidays so staff can relax and enjoy time off.

Reviewing your workforce demographic and asking your employees what they need and what motivates them most.

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Rebrokered projects

There has recently been new direction from the DfE with respect to the treatment of Local Government Pension Scheme ( Expand

There has recently been new direction from the DfE with respect to the treatment of Local Government Pension Scheme (LGPS) liabilities for academies on rebrokered projects. There have been several high-profile news stories in the press of late with respect to multi-academy trusts (MATs) having failed and the DfE stepping in, and rebrokering the outgoing trust’s academies to new sponsors.

The mechanics of transferring an academy to a new sponsor will, of course, involve a transfer of academy staff by way of Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) and the entering into of legal documents to transfer both the land and, of course, the business and assets of the academy itself. The transfer of the academy is ordinarily dealt with by way of a transfer agreement entered into by the current trust and the new academy trust sponsor. This is a commercial agreement that is directly negotiated between the parties and the DfE would not usually be involved: that was the case until the department’s recent stance on pension liabilities.

In the past, the usual expectation on any rebrokered transfer was that an acquiring trust would solely assume responsibility, and all associated liabilities for those academy employees that would be transferring to it by way of TUPE, including of course any LGPS pension deficit associated with such transferring employees.

The latest position on any rebrokered project is that the department now requires additional clauses in the transfer agreement, which means that any acquiring trust will assume responsibility for not only the transferring staff, but also any former employees of the outgoing trust relating to that academy. The effect of these amendments extends the liability of the incoming sponsor under the LGPS in relation to the academy, as it essentially requires the sponsor to take on liability in respect of individuals they do not employ. Such liability would, in the normal course of events, remain with the outgoing trust.

With the DfE’s latest approach in mind, it is worth any acquiring sponsor taking note that the additional liability could impact on the current employer contributions of the incoming trust to the LGPS and/or increase employer contributions that are set following future actuarial valuations of the fund. The LGPS liabilities of the current and former employees of the academy are already being funded for in the employer contribution rate that the academy will be paying to the LGPS. However, if that rate is insufficient to meet the cost of the additional liabilities, the acquiring sponsor will be responsible for making good any deficit.

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