UK: Recent Legal Developments of Interest to Independent Schools

Last Updated: 23 August 2002

Introduction

This bulletin is intended to highlight recent legal developments and to comment on possible implications for independent schools. This edition focuses on charitable status, school contracts and standards in boarding schools. It also briefly mentions developments in litigation and employment, and points to note in relation to bullying and exclusions.

Charitable Status

The report by the Performance and Innovation Unit of the Cabinet Office which has reviewed the entire legal and regulatory framework of the whole voluntary sector is still awaited. It had been expected towards the end of June, although there is now the likelihood of further slippage to the autumn. Judith Hill was a member of the Advisory Group to the review team. Consequently she gained some insight into what the review team was thinking. She is allowed to reveal what was discussed and what she suspects some of the initial conclusions might be, but this bulletin cannot say at this stage what the report will contain when it finally emerges.

Many aspects of the report will have implications for independent schools, but things will not change overnight. All the indications are that there will be a consultation period following the report to give everybody time to give their comments. Moreover, much of what the report contains will require primary legislation to implement it and this will not be forthcoming until the end of 2003 and the beginning of 2004 at the earliest.

Clearly the key issue of concern to independent schools is that of charitable status. At present the law relating to charitable status is that an organisation is charitable if its objects fall within one of the four heads of charity, namely the advancement of education, the advancement of religion, the relief of poverty and/or other purposes beneficial to the community. In relation to the first three heads public benefit is presumed unless shown to be absent, whereas in the case of the fourth head public benefit must be proved. The following proposals are being discussed:

  • There should be no presumption of public benefit and the fourth head test would have to apply to all charities;
  • The Charity Commission should be instructed to review the public character of charities;
  • This review should be a rolling programme reviewing individual charities in turn rather than a generic review;
  • Those charities which charge high prices for their charitable services would not automatically be held lacking in public benefit but would have to show that they provide public benefit in some other way to counter-balance the fact that they charge fees sufficient to exclude some of the public from access to their charitable services; and
  • There would be a transitional period during which charities would have the opportunity to bring themselves within the guidelines rather than organisations immediately losing their charitable status if they did not conform.

Such proposals raise complex questions, not least what is meant by public benefit and how it is to be assessed. There have been 400 years of case law defining what the law regards as public benefit in this context. Will this thinking become redundant? We wait to see whether the proposals are moving away from the present position that an organisation is charitable if its objects are exclusively charitable to a position where, as well as the objects being exclusively charitable, there must also be approval of the way in which they are carried out.

Another issue is what would happen to the property of a school which was charitable but fails to meet the new criteria. Current law demands that such property should continue to be applied for charitable purposes. Would a school in these circumstances lose its property to a school able to pass the new tests?

Much of the detail of the proposals being discussed needs to be ironed out. Independent schools can take comfort from the fact that Tony Blair has made pretty clear that he will not allow anything that will threaten the status of large numbers of independent schools. The tests proposed are therefore likely to be passed without difficulty by most independent schools and those which would not currently pass the test will be given an opportunity to change before losing their charitable status.

What then should schools be doing now to prepare themselves for these changes? There is no definitive answer to this question. However, having checked whether its objects or special trusts so permit, a school should consider creating as many bursaries as it can, making its facilities available to the local community and entering into partnerships with local schools. If a school feels that its objects or the special trusts which attach to certain funds create a problem, now might be a good time to seek advice. The Charity Commission may have powers to enable some changes to be made.

School Contract

Every school is now aware of the need to have a contract with parents which goes beyond simply stating the obligation to pay the fees and sets out some of the ground rules of the relationship. We would advise that this contract is reviewed regularly to ensure that it is sufficiently detailed and covers as far as possible those areas in which litigation arises. We have prepared a standard contract which is now available to members on the Independent Schools’ Bursars’ Association website www.isba.uk.com. It is also available on our website and is intended as a guide to the range of provisions which a school might consider including. Any school wishing to use it should seek advice regarding tailoring it to suit its specific requirements.

Standards of Care at Boarding Schools

The National Care Standards Commission is a new public body set up under the Care Standards Act 2000 to regulate social care and private and voluntary healthcare services throughout England. Responsibility for the registration and inspection of up to 40,000 care services in England has been formally transferred to it from 1 April 2002. Included in its remit is the standard of care in boarding schools. The Secretary of State has published "National Minimum Standards" for boarding schools. These standards contain detailed provisions relating to pupil welfare, staffing and premises. Schools will be assessed against these standards in order to determine whether they are complying with their legal obligation to safeguard and promote the welfare of boarding pupils. It is stated that many schools already meet or exceed these standards. Concern has been expressed as to the accuracy of the information available to inspectors if anonymous questionnaires are used. Clearly if pupils are consulted there is a danger of unsubstantiated allegations being included in any report. The Commission states that it will follow a consistent inspection methodology and reporting format. More information about the role of this organisation is available on its website www.carestandards.org.uk.

Negligence

Barrie -v- Cardiff City Council [2002] ELR 1

This case concerned a school playground accident. The claimant aged four, tripped on raised concrete edging dividing different parts of the playground. This was particularly unfortunate as she suffered brittle bone disease. It was held that this was irrelevant and the standard of care had to be considered on the basis of the use of the playground by children generally. It was proper to take into account the fact that some were more active than others and that some were more likely to suffer serious injury if they tripped. As against that were the absence of recorded accidents, the amount of use to which the playground was put and the long period of time over which the difference in level had been present. In this case the danger was not considered sufficient to constitute a breach of duty on the part of the school.

There is nothing surprising about this case. It is a fairly straightforward application of the principles of negligence. It indicates that where playground accidents are concerned each case will turn on its facts. The standard of care is simply a duty to exercise the skill and care of a reasonable school on the basis of what would have been acceptable to reasonable members of the teaching profession.

Simon Paul Chittock -v- Woodbridge School [2002] CA

Readers may already be familiar with the facts of this case, in which a pupil who sustained spinal cord injuries from a school trip skiing accident sued his school for negligence. The Claimant and his two friends, all of whom were 17, had been allowed to join a skiing trip organised for 12- to 14-year-old pupils. The Claimant, his parents and the school were all aware and had agreed that the Claimant and his friends would be allowed to ski unsupervised, subject to the general supervision of the school. The Claimant and his friends were seen skiing off-piste on two occasions. The Claimant’s explanation for the first incident was that he and his friends had lost their way. When a second incident occurred shortly thereafter, the Claimant was given a clear warning about his future conduct but not otherwise punished. The accident took place when the Claimant was skiing on a red piste and took a bend too fast.

The judge in the first instance decision held that, following the second incident of off-piste skiing, the school knew the Claimant could not be trusted. In those circumstances, merely telling the Claimant off was not within the reasonable range of responses open to a member of staff acting in the place of a parent and significant action should have been taken. The school had therefore breached its duty of care to the Claimant. The judge also held that if the Claimant’s ski pass had been removed, or if he had been made to ski under supervision, the accident would not have happened. However, the Claimant was guilty of substantial contributory negligence and hence the court apportioned liability equally between the parties.

The school has now successfully appealed this decision. The Court of Appeal has held that the teacher’s reaction to the second off-piste incident, giving a severe reprimand and accepting the Claimant’s assurances, was not outside the range of reasonable responses in the circumstances. If, contrary to the view of the court, the school had been negligent, the breach of duty could not on a balance of probabilities be said to have caused the accident. The Court of Appeal also held that, even if the decision on liability had stood, the judge’s finding on contributory negligence would have been unassailable. This outcome is clearly welcome news for schools, many of whom have been alarmed by the original decision.

There continue to be cases brought against local authorities seeking to make them vicariously liable for the failure of their employees to spot the special educational needs of children in their schools in the 1980s. It is worth noting that whilst these are occasionally settled out of court, the majority are successfully defended, for example Cullen -v- South Glamorgan CC (2002) and Liennard -v- Slough BC (2002). Moreover the alleged faults arose prior to the Code of Practice which has introduced a more sophisticated approach to special educational needs. It is possible, therefore, that these claims will not be so prevalent in the future.

Exclusions

In January 2002 the DFES published draft amendments to Circular 10/99 Revised Guidance on Exclusions from School. The consultation period lasted until 19 April 2002. The consultation need not concern independent schools but it is worth keeping an eye out for the final version. Independent schools may be interested to see what it has to say on the incidents where permanent exclusion may be appropriate for a first or one-off offence; the circumstances where an appeal panel should not normally direct reinstatement, police involvement and parallel criminal proceedings.

Bullying

The previous bulletin reported the case of Bradford Smart -v- West Sussex County Council, The Times 29 January and highlighted the need for schools to document the steps they take whenever bullying is brought to their attention, wherever it occurs. Lord Justice Judge noted in that case that "bullying was now well enough recognised for it to be reasonable to expect all schools to have policies and practices in place to address it". In the light of this it is perhaps worth noting that a children’s charity is now calling for parents and teachers to become more aware of the fact that children are being bullied by threatening text messages and emails and are being harassed in internet chat rooms.

Recent Changes in Employment Law and Pensions

The case of Uppingham School Retirement Benefit Scheme -v- Shillcock, decided on 19 April 2002, was an appeal against a determination of the Pensions Ombudsman.

The School operated a pension scheme for support staff. It was a final salary scheme, designed to be "integrated" with the state pension. Pensionable salary was calculated by deducting an offset equal to the National Insurance lower earnings limit ("LEL"); and employees earning less than the LEL were not eligible for membership.

Because the exclusion affected a higher proportion of female staff than males, the Pensions Ombudsman found that it amounted to indirect sex discrimination and was therefore illegal. In reaching this conclusion, he relied on the logic of earlier European cases on indirect discrimination such as Bilka-Kaufhaus and Vroege. But the High Court overruled his determination, stating that the basic purpose of the offset (integration with the state pension) was not in itself discriminatory; and the means employed to achieve that end were reasonable.

This decision will come as a relief to the many employers who operate "integrated" pension schemes. But the broader issue may not go away, since the offset (or "clawback" as its opponents prefer to call it) remains the target of a vocal trade union campaign.

On the employment law front there are, as ever, a great number of changes afoot. One such change is the long-awaited implementation of the Fixed-Term Employees (Prevention of Less Favourable Treatment) Regulations 2001. These Regulations were due to come into force last July but, due to "special difficulties" unearthed during the consultation process, they will now take effect from 1 October 2002. The broad aim of the Regulations is essentially threefold:

  • to protect fixed-term employees from discrimination when compared to their permanent counterparts;
  • to prevent an abusive use of successive fixed-term contracts; and
  • to improve a fixed-term employee’s access to training and information about permanent jobs.

A detailed summary of the Regulations is beyond the scope of this bulletin, but for current purposes it should be noted that:

  • fixed-term employees will have the right not to receive less favourable terms and conditions than a permanent comparator, unless this can be objectively justified;
  • fixed-term employees will be entitled to a written statement of reasons for any less favourable treatment;
  • redundancy waiver agreements will be abolished; and
  • fixed-term contracts will convert to a permanent contract upon the next renewal or extension if the employee has been employed on one or a series of fixed-term contracts for four years or more, unless this can be objectively justified.

In the circumstances, schools would be well-advised to review their use of fixed-term contracts during this extended period of grace between now and October.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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