School days mean school days

The judgement of the Supreme Court on the matter of whether term-time holidays are ‘acceptable’ in terms of pupil missing school is interesting. The lower courts clearly sides with the parent, and accepted the decision of the parent. This presumably was based, at least in part, on the contract between parent and State. The parent is required to secure the education of their child, but the State doesn’t prescribe how that is achieved, except in essence by stating a default position of schooling provided by the State. The Supreme Court had to decide the meaning of “fails to attend regularly” in section 444(1) of the Education Act 1996.

The Supreme Court would now seem to have very clearly reaffirmed that if you enter into that contract with the State for the State to educate your child, it is binding in terms of the requirement to deliver your child to school when the school is in session; illness and other specified unavoidable events apart being allowed as reasons for non-attendance.

Interestingly, the parent or child has historically had no come-back on the school or its overall operator if for any reason the school cannot open. Hence the residual duty remaining with local authorities to step in and ‘secure’ the education of a child if something happens to an academy or free school. Hence, also why the State has never guaranteed the level of teaching or the qualifications of those required to teach any particular child anything.

I have read the judgement of the Supreme Court, and Lady Hale in particular with interest and was struck by the following paragraph in what was an excellent summary of education history and the law on attendance that is well worth reading and largely free of legal jargon.

Finally, given the strictness of the previous law, Parliament is unlikely to have found it acceptable that parents could take their children out of school in blatant disregard of the school rules, either without having asked for permission at all or, having asked for it, been refused. This is not an approach to rule-keeping which any educational system can be expected to find acceptable. It is a slap in the face to those obedient parents who do keep the rules, whatever the cost or inconvenience to themselves.

Copied from: https://www.supremecourt.uk/cases/docs/uksc-2016-0155-judgment.pdf

We are now, it seems, much closer to the pre-1944 Education Act position where even a single day of missed school could be regarded as unacceptable and the commission of an offence. Parents will now need to take heed of the rules of the school.

However, I foresee some future questions over the legitimacy of absence by ‘illnesses where the illness is self-certified by the parent. Taking a Friday and the following Monday off ‘sick’ may be especially risky is a school creates a rule requiring a doctor’s note in such circumstances. The absence of a note might be an unreasonable absence.

The case still leaves un-resolved the twin problems of the price of holidays for families with children at school and the issue of families that work in holiday areas. The original Victorian legislation recognised we were in part an agricultural nation and that affected attendance at school. The current legislation doesn’t recognise we are now a service-based economy. For good measure, it also doesn’t recognise that the Victorian legislation on home to school transport provision needs bringing up to date as well.

 

Banning teachers from work

In the light of the NCTL still seemingly not having published the overall targets for ITT numbers to be recruited for the 2017 entry into the profession, I thought would look at what was on their web site. The ITT data will, I assume, eventually have to come from a parliamentary question at some point in 2017.

Another aspect of the NCTL’s work is to conduct the hearings into misconduct by teachers and report the findings on their web site. If you like, the potential for ending a teacher’s professional life, at least in the United Kingdom. I estimate that there were just over 130 hearings reported so far for 2016; not bad for a profession with 500,000+ active members and a lot more with the right to teach in state funded schools. As a percentage of the profession, the figure is so small as to not be worth calculating.

However, one aspect worth recording is a large discrepancy in the gender of those facing misconduct hearings. Although the teaching profession is now predominantly female, in terms of the active population, misconduct hearings in 2016 related to close to three men for every women summonded in front of a panel. Many hearings are in absentia as the teacher doesn’t bother to attend to learn their fate. In these cases, they often seem to have left the profession, at least in this country. There have been some worryingly ill-prepared statements of facts in a small number of cases. In one case, even a court record didn’t really make sense, although whether that was the fault of the Magistrates’ Court or the case officer wasn’t clear from the judgement.

In two cases, both relating to male teachers, no finding was made as the facts were not proved. In the case of 14 male teachers and 5 women teachers where cases were taken out, the facts were proved, but no Prohibition order was made. In all other case Prohibition Orders were made. Sexual conduct or the viewing of pornography amounted to over a third of the reasons for issuing a Prohibition Order, although in a small number of cases, some historical in nature, no Order was made. The second most frequent reason for issuing a Prohibition Order was as a result of a successful conviction in a criminal case of a teacher. In some instances, this related to matters taking place at a school, in other not. There were a small number of cases resulting from actions to do with tests or examinations, that breached the standards required of teachers. The remaining cases were accounted for as a result of a variety of matters, including misuse of school funds.

Teachers from across the country were issued with Prohibition Orders, although relatively few from the midlands. All the cases relating to alcohol concerned teachers from the same region. Although most cases were of teachers that had worked in state-funded schools, some cases involved teachers that had worked in the private sector.

Clearly, head teachers under pressure and in charge of challenging schools need to be mindful of the extra risks associated with their role, as it is too easy to let the paperwork and attention to detail slip.

Young teachers, need to be aware of the need for appropriate professional boundaries with any pupil, of any age, especially in high risk situations. Beware the School Prom.

No doubt, these cases heard in public are the most extreme in nature and there may be others where a teacher has been warned of their conduct and it has stopped. By publishing the cases, the NCTL allows a body of case law to emerge and also a debate about issues such as where boundaries should be drawn. In all cases the Secretary of State, through a civil servant, has the final say in the outcome.

 

Thank you Mr Taylor

The Ministry of Justice published an important report on Youth Justice this week. It was written by Mr Taylor. Regular readers of this blog may recall this civil servant and former head teacher when he was in charge of teacher training and espoused the view that planning ITT numbers was not useful. His views at that time were the focus of a series of blog posts.

Youth Justice, and especially the manner in which children were dealt with by the criminal justice system, was a blot on the reputation of the last Labour government. As the Taylor Report makes clear https://www.gov.uk/government/publications/review-of-the-youth-justice-system offending by young people reached a peak in 2007 after ten years of Labour governments and during the time the police were being required to meet targets to reduce offending.

In 2007, 225,000 children in England and Wales received a caution or conviction for a notifiable offence. Of these children, 106,000 were first-time entrants to the system having never before received a caution or conviction. 126,000 were prosecuted at court, and 5,800 were sentenced to custody. The average monthly under-18 custodial population for 2007 was 2,909.

  1. Since that high watermark the number of children dealt with by the youth justice system has reduced spectacularly, with consistent year-on-year falls. The number of children cautioned or convicted in 2015 was 47,000 – down 79% since 2007. Over the same period the number of children entering the youth justice system for the first time has fallen by 82%, the number prosecuted at court has reduced by 69%, and there are now around only 900 under-18s in custody.

This blog has commented before on the reduction in the size of the youth prison population when it fell below 1,000 for the first time in recent history. Now 900, is still far too many, but averages just below three per local authority at any one time.

The risk in the new proposals is that the current diffuse system run from both Westminster and by local authorities becomes a devolved system with some local authorities not large enough to handle an effective system. My guess is that then the government would step in and creates the regional structures it is now seeking in the adoption world where provision was patchy. Indeed, the Taylor report hints at this approach.

I also find the section on education rather woolly in terms of who takes control? Academisation and years of under-mining local authorities means that they no longer have the power to intervene when schools are not living up to the high standards required to help keep young people away from the path of a life of crime.

However, the recommendation about making convictions and cautions spent when resulting from actions when a person was a child, chimes with what I have been saying for many years. Too many people have their careers blighted by a single act as a young person. In this age of ever tightening restrictions it can mean the difference between working in a profession or not and even where a person can go on holiday.

The idea of Youth Panels sitting in local buildings also chimes with my thinking when a magistrate. With reducing workload children attending court have had to travel ever further and this means not only defendants, but also witnesses and victims: not a good idea.

As ever, with this government, the issue comes down to money and whether any changes will be used to pass the buck and reduce not improve services. We certainly don’t want to see a quarter of a million children a year receive a caution or conviction. Those days must never return.

 

A new future

Waking up to the news that the United Kingdom has voted to leave the EU is a disappointment. Oxford, along with cities such as Cambridge and Bristol, was one of the few places outside London to vote strongly in favour of remaining. However, I am not surprised by the overall result. My previous post, on the speech by The Chief Inspector about the failure of our education system to provide an education for all, recognised the deep gulf that has opened up in England and parts of Wales between those that have gained the most across the board from the past half century and those that feel impoverished by the direction of travel the country has taken. This feeling of impoverishment and associated alienation has nothing to do with any economic benefits the region where they live may have received.

The irony is that those voting to leave the EU could in some measure be dependent upon those that voted to remain if the economic miracle those advocating leave believe can happen is now to come about. The entrepreneurial success of parts of the country must be broadened and deepened. To that extent the aim of a northern powerhouse is a good move, but 20 years too late.

On the more narrow focus that is of direct interest to me, I wonder what the outcome of the referendum will mean for the staffing of our schools. One scenario has lots of young graduates, the group that voted mostly strongly to remain in the EU, looking for teaching posts overseas. At the same time, the unknown number of EU trained teachers working in schools across England may re-consider their position here and also look either to return home or seek another post overseas. On the other hand, those from EU countries where unemployment is still high and where teaching pays less than it does here may wish to remain, if allowed to do so. In any teacher shortage that might develop it must not be the least advantaged that suffer the most, for access to a high quality education remains a universal right regardless of the political grouping to which we belong as a country.

A fall in sterling will be good news for independent boarding schools offering an education to those from across the globe, as it will become cheaper to study in Britain. For the same reason, universities may find attracting students from overseas slightly easier, although presumably once Britain leaves the EU all students from overseas will pay the same in fees.

Personally, I will continue to fight to ensure that Britain continues as an outward looking, tolerant and liberal society where Human Rights remain important. Education plays a large part in achieving this goal and it must be protected in any of the possible hard times ahead. I do not want to become a member of a vassal state of either the USA or China, instead of a full-member of the EU, should these superpowers use any period of economic uncertainty to harvest UK assets at a bargain price.

 

 

Ministers and the Rule of law

The judgement of the High Court in the recent case concerning term-time holidays is now available for all to read at http://www.bailii.org/ew/cases/EWHC/Admin/2016/1283.html The issue itself is on the way to the Supreme Court, where it seems likely that they DfE may be joined as an ‘interested party’ to the case. That makes the remarks by the Minister of State, Mr Gibb, quoted by the Guardian on the 9th June that “schools should continue applying the current regulations that allow parents to be fined” all the more interesting.

The recent case turned on whether the pupil had ‘regular attendance’ as that is what primary legislation requires from parents that entrust their offspring to the state school system for their education. Parents, it must be noted, are not required to send children to school to be educated, but if they do so it must be ‘regularly’. There seems to be no similar legal penalty that appears to be enforced for those that decide to home school or educate their children in some other way than sending them to school and that issue may need to be looked at if the government loses in the Supreme Court and reconsiders the current legal position.

Under the ‘rule of law’ governments are bound by the actions of the courts. In England, our common law system is founded on the judgements of the courts, and especially the superior courts, and these decisions change legislation enacted by parliament, usually by clarifying them. This is often because the way parliament legislates can mean Acts of Parliament are badly drafted and not enough time is spent at the Committee Stage picking over the Bill during the discussions. Interestingly, the House of Lords generally does a much better job of scrutinising legislation that starts there than does the other chamber.

So, should a Minister tell schools to ignore the decision of the High Court? He certainly won’t be able to tell them to ignore the judgement of the Supreme Court even if he doesn’t like it and even if he intends to try and change the law in a new Act of Parliament. I wonder if it was ill-judged on his part to so strongly support the government’s current position on term-time holidays, especially as it is only backed by secondary legislation, when LORD JUSTICE LLOYD JONES at the High Court had said in the judgement on the recent case at paragraph 19 that, “the regulation does not have the effect of amending the statute. In my view, the nature and scope of the offence created by section 444(1) remain unchanged. In particular I would reject the suggestion that Regulation 2 has the effect that any absence without statutory excuse necessarily constitutes an offence under section 444(1).”[of the relevant Education Act]. On that basis, perhaps most parents who have felt hard done by where a fine has been issued will now take their case to the Magistrates’ Court and plead ‘not guilty’, at least until the Supreme Court has ruled in the matter.

Realistically, it seems to me that ‘regular attendance’ has to be looked at in the round. The common sense view would seem to be that where a pupil has a good attendance record and the time off for holidays doesn’t impinge on important learning activities it could be treated no differently to the similar outcome if a pupil suffered a common childhood illness or a severe bout of flu. Where a child has a poor attendance record, then the holiday might just tip the balance between regular attendance and a failure to maintain regular attendance. In this case because it seems from the judgement that the child’s parents were no longer together and the other parent had already taken the child out of school that year, one can understand why the Council acted as it did, even where the child had an otherwise apparently very good and regular attendance record.

It is important that any revision of the primary legislation must define what is meant by ‘regular’. That will be a challenge. However, with home to school transport there has been a clear distance definition for very many years, so, about attendance, it should be possible to say something like, unless the pupil is unwell or attending a medical or dental appointment the parent of a child where the parent has asked the State to educate the child will need to ensure the attendance at school of the child by the required time every day that the school is open for the provision of schooling.

Finally, I support the view that where an offence is one of strict liability, as attendance at school is deemed to be, then it needs to be clear exactly what is required; it isn’t at present. I also dislike fixed penalty notices as a punishment because they take no account of parental circumstances and bear down more heavily on those that are less well off.

Surely, the real solution is for parents to accept the need for pupils to attend all the time and for travel companies to seek out vacations that cost no more in school holidays than during term-time. But, that is easier said than done.

 

 

Purdah causes more issues for education sector

The Report of the STRB doesn’t seem like the only activity at the DfE caught by the start of the purdah period for the Euro Referendum. I had been expecting the second stage of the consultation over the proposed new National Funding Formula to appear last week: it didn’t. ASCL’s interim general secretary commented in a press notice that ‘The timetable for the new funding formula was already very tight and this delay is the straw that breaks the camel’s back.’

The delay will affect everyone, since a three month consultation launched at the end of June will run to the end of September. Even allowing for a month for the DfE to respond to any consultation, even to say, having read the responses we aren’t taking any notice, it would be late October before action could be taken. That doesn’t leave much time for School Forum to respond and set any limits left to them to administer before the 2017 financial year starts in April. Of course an eight week consultation over the summer holidays and every decision controlled by the DfE might still allow a 2017 start, but it only needs some intervention either through the Administrative Court by way of judicial review from a school that loses out under the proposals or in the House of Commons for the timetable to be derailed.

There are also tenders, such as that for the next stage of the National Teaching Service that seem to have fallen foul of purdah. The delay shouldn’t affect the timetable for a 2017 start, but will reduce the planning time available for the successful bidder.

However, the DfE were able to publish the Wood Report and their observations on it before purdah started. The report suggests significant changes to the manner in which local authorities, the police and NHS, plus the departments at Westminster than oversee these bodies and fund them, will handle serious case reviews. This is another area where the lack of any logical framework for local government is causing problems. On the one hand the government want to re-introduce large urban counties under the guise of the Northern Powerhouse while seemingly sanctioning the continuation of small unitary authorities, such as those that govern the former Berkshire.

In respect of children’s services, there doesn’t yet seem to be a coherent framework that binds together local and regional requirements. Nationally, the arrangements between the Home Office (police) DfE (Children’s Services) Department of Health (NHS) and DCLG (funding of local authorities) seems even more tenuous that the local frameworks in the emerging MASH arrangements  – Multi Agency Safeguarding Hubs – being put together in the more forward thinking areas. The lack of common boundaries between services in many localities probably doesn’t help. In education, the overall role of local authorities is sometimes hampered by the presence of large numbers of academies, especially in the secondary sector, where the handling of issues, such as missing episodes by pupils, may reflect the strength of the relationship between individual academies, their MATs whose headquarters may deal with lots of different local authorities and police bodies, and the MASH, if there is one.

Safeguarding children is rightly top of the agenda but whether managing from the DfE remains the correct approach is not considered within the Wood Report. There might be a case, either for a Ministry for Children, and not just a Minister or shifting responsibility to the Ministry of Justice to sit alongside the Tribunal Service.

What is reasonable?

Until we see the full judgement in the recent case we won’t know what the judges in the High Court were thinking when they seemed to deemed it ‘reasonable’ for a parent to be able to take a child on holiday for a week during school term-time.

It is worth recalling that the overarching responsibility of parents is to see that their children receive an education when they are of compulsory school-age (there is a grey area for young people between the ages of 16-18 that will need clarification at some point.)

For young people between 5-16 the law says:

Duty of parents to secure education of children of compulsory school age.

The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—

(a)to his age, ability and aptitude, and

(b)to any special educational needs he may have,

either by regular attendance at school or otherwise

The issue turns on the definition of ‘regular attendance.’ If the parent, as most do, hands over the responsibility to the State, what is the nature of the contract between the parent and the State?  The State agrees to provide the child with 190 days of schooling per year. It is accepted that children may be off sick and there may be other reasons for a child not to be present, but these will require ‘leave’ to be absent.

In the 1990s two things happened, Ofsted started reporting regularly on attendance levels at schools and the State wanted to drive up standards of education that were thought to be falling. As a result, the law was tightened to ensure regular attendance, with two defences; ‘sickness or unavoidable cause’ or ’with leave’. Historically, schools could grant up to 10 days leave, but that right was removed over time.

The government explained the basis for this change in relation to family holidays in the background to the secondary legislation making the change.

 The 2006 Regulations refer to parents applying for family holiday in “special circumstances” and to schools having discretion to grant up to ten school days of holiday per year. Many parents and some schools have interpreted this law as an automatic entitlement to an annual two-week term time holiday. The Education (Pupil Registration) (England) (Amendment) Regulations 2013 amend the 2006 Regulations to clarify that leave of absence during term time shall not be granted unless there are “exceptional circumstances”.

They further explained that;

For pupils to benefit from education and achieve their full potential they must attend school regularly. School attendance data from 2010/11 showed that 90 per cent of pupils with an absence rate of less than 4 per cent achieved 5 or more A*- C grades at GCSE or equivalent. In primary schools, 4 out of 5 pupils with an absence rate of less than 4 per cent achieved level 4 or above in both English and mathematics.

As Oxfordshire County Council’s document on the subject for parents notes;

90% attendance means that your child is absent from lessons for the equivalent of one half day per week.

So how draconian should the State be? Personally, I think in the first year of schooling  when routines are being set and key topics may be being learnt for the first time every effort should be made to attend and taking time out may not be helpful either for the child or their classmates if it disrupts the teaching. As a rule of thumb after that I think where pupils are rarely or never off sick, the guidelines in the old 10-day rule probably provided a sensible rule of thumb for head teachers. After all, some parents cannot take holidays during school holiday period because of the nature of their jobs. However, if a child has missed a lot of time through sickness, taking time off turning term-time that year for a holiday isn’t a good idea and I would expect a head teacher to refuse ‘leave’.

Essentially, the legislation should encourage parents to make the most of the education on offer for their children without seriously affecting either their education or that of their classmates.

My parents only ever took me out of school for one week at the start of my third year in junior school and I never really understood the work on fractions that was introduced during that week. Had it been the last week of the summer term it might have been a different matter.

However, what is clear is that major changes to legislation really ought to be part of primary legislation and not created by secondary legislation and Ministerial fiat. Had that been the case here, Parliament could have discussed in committee what it meant by the phrase ‘attend school regularly’ and the acceptable reasons not to do so.

Perhaps, as a result of this parent’s action it will now have a chance to do so. They might also ask whether if the State isn’t able to fulfil its part of the contract it should make up the missing days? Lord Denning did discuss this in Meade v Haringey in 1979 at the end of the Winter of Discontent, but it never came to trial and a decision.