Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp

Blog | Construction

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The recent decision made by the Court of Appeal in Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) Llp [2022] EWCA Civ 823 (21 June 2022) has overturned the earlier Technology and Construction Court (TCC) decision; now confirming that the significant benefit of adjudication can be available to a wider range of parties involved in a construction project.  From the perspective of our education clients, the decision in this case is likely to have an effect on the procurement process and those who are to benefit from collateral warranties and other construction documents.

What is Adjudication?

Adjudication was introduced by the Housing Grants, Construction and Regeneration Act 1996 (the “act”). It offers a relatively quick dispute resolution procedure by an appointed adjudicator, usually in just 28 days. The adjudicator’s decision is temporarily binding until the dispute is finally determined by court proceedings, arbitration, or settlement; albeit that the decisions are largely followed without the need for such additional enforcement measures to be taken.

Under Section 104(1) of the act, the statutory benefits of adjudication only extend to certain types of agreements – those defined as “construction contracts” for the carrying out of “construction operations”.  This case was therefore of great interest to the construction industry as it shed light on what the courts would interpret as a construction contract which fell within S104.

Background

Abbey Healthcare (“Abbey”) was the tenant operating a care home.  Defects in the works were notified to Simply Construct (“Simply”), but were carried out by another contractor. Following completion of the works, Simply was required to execute a collateral warranty in favour of Abbey. This collateral warranty was executed four years after practical completion of the original works, and some eight months after the completion of remedial works.  Claims were brought by adjudication to recover losses relating to the defects. An adjudicator’s award was made in favour of Abbey, but enforcement was resisted by Simply on the basis that there was no implied right to adjudicate under Abbey’s collateral warranty.

The TCC had found in favour of Simply.  The warranty was to be construed against the factual background and the timing of its execution.  The warranty was executed after the works had been completed and defects remedied by another contractor. It was therefore a warranty only of a state of affairs and could not be construed as an agreement for the carrying out of construction operations.  The TCC therefore concluded that Abbey’s collateral warranty was not a construction contract for the purposes of the Construction Act.  There was no contractual right for Abbey to adjudicate under the Construction Act and so the decision in the Abbey adjudication was not enforced.

Court of Appeal decision

The Court of Appeal, by majority decision, has overturned the decision of the TCC.  It has been held that Abbey’s collateral warranty was a construction contract for the purposes of the act and there was a statutory right to adjudicate.  This was the case, notwithstanding that the warranty was signed years after the works were complete. The timing of its execution was not held to be determinative. Instead, the wording of the warranty was key.

Taking here some of the key parts from Lord Justice Coulson’s decision, he reasoned that:

  • There is no reason to limit the words of s.104(1) to refer only to the primary building contract.  A collateral warranty may, therefore, be capable of being a construction contract for the purposes of s.104(1). What may be critical is whether the warranty is in respect of the ongoing carrying out of construction operations, on the one hand, or is in respect of a past and static state of affairs, on the other.

  • Simply had warranted to Abbey that it "has performed and will continue to perform diligently its obligations under the contract." Therefore the warranty plainly set out the standard to which the construction operations would be carried out. That was by reference to the detailed terms of the building contract. To that extent, the building contract is the marker or standard denoting the level of quality that Simply Construct was required to achieve

  • Simply Construct was warranting that, not only had they carried out the construction operations in accordance with the building contract, but they will continue so to carry out the construction operations in the future. That is an ongoing promise for the future. As a matter of common sense, this is "an agreement for the carrying out of construction operations". It is not a warranty limited to the standard to be achieved; neither is it a warranty limited to a past or fixed situation. It is a warranty as to future performance. It is that which differentiates Abbey’s collateral warranty from a product guarantee.

Although the Abbey collateral warranty was executed after the works had been completed, it was retrospective. It made a promise both as to the standard of past work and to the future carrying out of work to the same standard. It was therefore an agreement for the carrying out of construction operations which had retrospective effect. Once that is accepted, the delay between the completion of the works and the execution of the warranty does not matter. Otherwise arbitrary lines would start to be drawn. For example, in this case, it was inferred by the judge that four years was too long. But what about two years? A year?

As Abbey’s collateral warranty contained future-facing obligations and was retrospective in effect, the date of execution was ultimately irrelevant. The warranty is a construction contract.

To find otherwise, would in Lord Justice Coulson’s judgment, be “wholly unsatisfactory”. It would also encourage contractors not to sign collateral warranties until after they had finished as many of the construction operations as they could. On the basis that, in such circumstances, whatever the wording of the collateral warranty, they could avoid the implication of the act and therefore avoid being the subject of a claim in adjudication.”

The decision has brought welcome clarity to the interpretation of the act and will have far reaching, positive implications for the various stakeholders in any construction project and also confirms the availability of an alternative route to recovery of costs avoiding costly litigation.

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Chloe Fellowes is a proactive Paralegal with a demonstrated history of working in the legal services industry.

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The widespread effects of COVID-19 are set to drastically alter the UK’s construction industry. We understand the sector from our vast technical knowledge and real-world experience of the issues you may be experiencing, from contractors’ responsibilities to delayed contracts and payment support.

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Keeping Children Safe in Education - updated for September 2022

Blog | Education

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Earlier this year we updated you on the Department for Education’s consultation regarding the proposed changes to Keeping Children Safe in Education (KCSIE). The consultation closed in March, and the updated KCSIE guidance which incorporates the findings of that consultation, has now been published. The updated version comes into effect from 1 September 2022, but in the meantime, KCSIE 2021 continues to apply. The new version can be accessed here: Keeping children safe in education 2022 (publishing.service.gov.uk).

The good news is that there are not many significant changes this year, following some extensive amendments over recent years. The vast majority of changes are to add clarity. This year, the main changes include:

General changes:

  • A definition of perpetrator and of victim has been helpfully included in the Summary section of the guidance. These definitions have been taken from the Sexual Violence and Sexual Harassment guidance (which has now been completely absorbed into KCSIE, and is consequently now statutory guidance which schools must follow) so schools should be familiar with these definitions.

  • There has been a change in language throughout KCSIE from peer-on-peer abuse to child-on-child abuse, and with reference to abuse in intimate personal relationships between peers, this is now referred to as ‘teenage relationship abuse’ throughout.

Part One (Safeguarding Information for all staff)

  • Clarity that there should be a staff behaviour policy or code of conduct covering topics such as low-level concerns, allegations against staff and whistleblowing (para 13).

  • Paragraph 18 has been reworded to make clear that children should never be made to feel like they are creating a problem for reporting any form of abuse and/or neglect, not just sexual abuse or harassment as per the previous wording.

  • At paragraph 19 there is new wording which recognises that children may not be ready to make a report, or may not know how to tell someone they are being abused, exploited or neglected. It includes an emphasis on staff having ‘professional curiosity’ and speaking to the Designated Safeguarding Lead (DSL) in light of any concerns. This is echoed in paragraph 21, which reminds staff of the early signs of abuse and neglect. More examples of indicative behaviours are also included at paragraph 31.

  • More examples of extra-familial harm are now also included at paragraph 23, and the definition of abuse at paragraph 26 now includes a definition of ‘harm’.

  • Clarity is provided in the footnotes on page 12 that consensual image sharing between children of the same age may not amount to abuse and may require a different approach.

  • Additional guidance regarding domestic abuse as a specific safeguarding concern is now included at paragraph 43.

  • There is a reminder that schools and colleges should have policies and procedures in place for managing any safeguarding concern no matter how small. Paragraphs 71 to 73 also now set out clearly how these concerns should be handled, dependent on whether they do, or do not, meet the harm test

Part Two (Management of Safeguarding)

  • There is a new obligation for governing bodies to ensure that all governors and trustees receive appropriate safeguarding and child protection (including online) training at induction (and regular updates thereafter). This is to equip them with the necessary knowledge to challenge, test and assure themselves that the school’s safeguarding policies are effective and robust (paragraph 81).

  • New guidance on the obligations regarding safeguarding, sexual violence and harassment under the Human Rights Act 1998, the Equality Act 2010 and the Public Sector Equality Duty (for those that are subject to it) is now included at paragraphs 83 – There are no new obligations, this just serves as a reminder of existing ones.

  • It states that safeguarding policies and procedures need to be clear, transparent and readily available to parents and carers as well as staff and students (paragraph 96).

  • Additional wording has been added to extend the existing requirement for schools to take a proportionate risk approach regarding information provided to temporary staff and volunteers, to now include contractors (paragraph 100).

  • Guidance on the role of the DSL has been moved to Annex C for clarity.

  • Additional information regarding the timescales for sharing child protection files for transferring students has been added at paragraph 121.

  • The guidance on teaching safeguarding to children has been updated and now includes additional information about the new Relationships Education curriculum (paragraphs 128 – 130).

  • There is a change of wording to reflect that it is the governing body’s responsibility (not the school’s) to ensure that online safety is a running theme in the school’s approach to safeguarding (paragraph 136).

  • Recognition that mobile phones and smart technology can be used to bully children (paragraph 137).

  • Reminder that schools should use its communications to parents to reinforce online safety at home, and that schools should inform parents what their child is being asked to do online as part of their schooling (paragraph 139).

  • Schools should review their IT filter and monitoring systems regularly and staff should be made aware of how to escalate concerns when identified. KCSIE now references a tool by the South West Grid for Learning for schools to check whether their current filtering provider is signed up to relevant lists (paragraphs 140 – 141).

  • The new KCSIE recognises that LGBT children (paragraph 202 – 204) may be at additional risk of safeguarding concerns.

  • There is additional guidance regarding SEND children, which recognises that they have additional vulnerabilities that schools need to be aware of in a boarding setting (paragraph 158) and that they face challenges online and offline, in particular in relation to children with cognitive understanding issues as they may struggle to distinguish between fact and fiction online (paragraph 198). Further resources for supporting SEND children is now included at paragraph 201.

  • Last year, guidance was included regarding the use of school facilities for non-school activities (for example, summer camps). The new KCSIE 2022 has clarified that these safeguarding obligations apply even if the children in attendance attend the host school or not (paragraph 166).

  • The role of the virtual school head has also been extended to include strategic oversight for education attendance, attainment, and the progress for children with a social worker (paragraph 194).

Part Three (Safer Recruitment)

  • Clarity has been added regarding when a CV can be accepted for applicants. KCSIE 2022 makes clear that a CV will only be acceptable alongside an application form, not instead of (paragraph 214).

  • As part of the shortlisting process, and for due diligence, schools should now carry out online searches on shortlisted candidates to help identify publically reported incidents which can be explored with a candidate at interview (paragraph 220).

  • Clarity that references should include the facts (not opinions) of any substantiated safeguarding concerns/allegations which meet the harm threshold, but should not include unsubstantiated, unfounded, false or malicious allegations, even if they are repeated allegations (paragraph 223).

  • More guidance is included about DBS checks for existing volunteers and professional visitors (paragraphs 301 and 311).

  • Interestingly, the wording regarding suspension which made clear it should be used as a last resort has been removed in KCSIE 2022. It does however continue to emphasise that suspension following an allegation against staff should not be an automatic response, and that the school should make an informed decision about suspension in the context of the allegation.

Part Four (Safeguarding concerns and allegations about staff)

  • Some clarity to the low-level concerns guidance has been added following the consultation earlier this year. In particular:

    • The list of examples no longer includes “the use of inappropriate, sexualised, intimidating or offensive language” as an example of a low-level concern (paragraph 425).
    • Further information has been provided to provide clarity on the process for sharing low level concerns. There is inclusion of a reminder that schools can liaise with the Local Authority Designated Officer (LADO) regarding low level concerns where there is any doubt about whether a report should be made (paragraphs 433-435).

Part Five (Child-on-child sexual violence and sexual harassment)

  • Throughout Part Five there is now an emphasis of the types of child-on-child behaviours and warning signs for child-on-child abuse, including new guidance on how to manage allegations of abuse, taken largely from the former Sexual Violence and Sexual Harassment standalone guidance. Case studies have also been included throughout to add context and assist schools.

  • One of the important changes is the inclusion of a reminder that when a child has made a report, it is important to explain that the law is in place to protect children rather than criminalise them. Care should be taken to explain this to the child in such a way that avoids alarming or distressing them (paragraph 468).

  • A new section regarding confidentiality and anonymity is now included (paragraphs 470 – 478).

  • Clarity that a risk and needs assessment following a report of sexual violence should include the time and location of an alleged incident and details of any action required to make the location safer (paragraph 479).

  • The list of considerations at paragraph 482 has now been updated to recognise that children of “well known social standing” can contribute to a power imbalance in the context of child-on-child abuse.

  • New sections regarding disciplinary action against pupils (paragraphs 543 – 545) and working with parents (paragraphs 546 – 551) is now added.

  • Recognition that schools and colleges, as relevant agencies, should be part of discussions with statutory safeguarding partners to agree the levels for the different types of assessment and services to be commissioned and delivered, as part of the local arrangements (paragraph 492).

  • Reminder that children may exhibit differing signs of trauma and responses to their experience, and that schools should remain alert to the possible challenges of detecting those signs and be sensitive to the needs of the child (paragraph 533).

Annexes

  • Annex C continues to include information about the role of the DSL. Some of the information previously included in the main body of the guidance has now been deleted and rehomed here. The only ‘new’ piece of information to be aware of is a reminder that the DSL must be aware that a child requires an appropriate adult when being interviewed by police and in certain circumstances.

  • The previous Annex D (Online Safety) has been removed. Guidance has been incorporated throughout KCSIE 2022 instead, and there has been an added emphasis in Annex A that technology is a significant component in safeguarding issues and recognising the role of online abuse in safeguarding the wellbeing of children.

What should you do now?

We would encourage schools and colleges to review their policies and procedures as soon as possible, in readiness for September. As always, there is a helpful table at Annex F of KCSIE 2022 which summarises the substantive changes from the September 2021 version, which may be useful, alongside this note, when undertaking this work.

If anything is unclear, or if schools have any queries about the impact of the revised guidance, do contact us.

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Emma is a Solicitor within the firm’s Education team specialising in employment advice for education clients including independent schools and academies, as well as both further and higher education institutes.

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Institutions underestimate importance of sustainability for prospective students – new research reveals

Research | Education

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Higher and further education institutions risk underestimating the importance sustainability holds for applicants when choosing a college or university, new research from law firm Shakespeare Martineau has shown.

  • Just half of educational institutions consider sustainability as an ‘important’ factor of their student recruitment strategy – despite 79% of prospective students saying that ‘clear strategies to reduce environmental impact, promote sustainable development and reduce waste’ is a influencing factor in the college or university they apply for.

  • 90% of prospective students would be proud to study at a green campus.

Around three quarters of prospective students would be influenced by: the use of green energy to power campus buildings (73%), sustainability being an important part of learning, teaching and research (78%), and decision makers at that institution factoring in climate change in all decisions (75%), when choosing their place of study.

However, institutions themselves undervalued these factors, with less than half (48%) agreeing they believe that factoring climate change into decision making would be important to prospective students.

Shakespeare Martineau’s survey of 1,000 16 to 19-year-olds planning on applying for college or university* showed nearly 7 in 10 (69%) are worried about climate change.

The majority (62%) of young people questioned felt that it was the government’s responsibility to address climate change, followed by individuals (37%) and big corporations (34%).

Almost 3 in 10 (29%) believed responsibility lies with educational institutions, but despite this figure being relatively low, an institution’s green credentials are a strong influencing factor in applicant decision making.

More than 130 representatives from the further and higher education sector were also questioned by the firm, with the results showing a severe disconnect between what applicants value and what institutions think are important to young people.

When compared to the responses from prospective students, institutions undervalued the importance of green energy (54% vs 73%), sustainability in learning and research (58% vs 78%), clear environment strategy (65% vs 79%) and ethical investment (45% vs 72%).

Interestingly, educational respondents overestimated how important a good social scene and night life is to students (92% vs 76%) and position on league tables for subjects (91% vs 82%).

The top priority for prospective students however – above and beyond even fulfilling academic needs – was ‘that the college or university provides support for my personal well-being and mental health’ (87%).

The research also demonstrated disparity between factors most important on a green campus for prospective students and institutions. While institutions ranked ‘minimal food, water and energy waste’ and ‘buildings are powered by renewable energy sources’ as top, applicants associated green campuses with ‘reducing carbon emissions to meet government targets’, ‘open green spaces’ and ‘working with the wider community to encourage green practices’ most with the term green campus.

Smita Jamdar, head of education at Shakespeare Martineau, said: “Climate change is on the minds of the world, but no one more so than young people who will have to live with the consequences of the actions of generations before. Our findings show there is disconnect between what students want and what institutions are delivering, but our research has also highlighted common themes in the barriers preventing greater green campus adoption, which we hope to tackle in our next research paper.

“What’s clear is that the solutions to this disconnect lie in cross-institutional activities, such as leadership and management, teaching and learning, research and innovation, and services and facilities. These will be challenging to co-ordinate and implement, but also offer a common, cohesive goal for the whole institution to work towards.

“What is great to see is that 90% of the students we surveyed said they would be proud to attend a green campus. But time is running out and changes urgently need to be made across funding, planning, energy, and governance if we are to help meet climate change targets and provide students with a campus, and a future, to be proud of.”

This data is the first set of statistics to be revealed by Shakespeare Martineau, with a full report on Green Campuses expected in September this year.

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The OfS supplementary consultation on publication of information about higher education providers

Blog | Education

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Around 18 months ago, the Office for Students launched a consultation into the publication of information about higher education providers. As a result of the provisions of the Skills and Post -16 Education Act (the Skills Act), the OfS has launched a short supplemental consultation which is due to close on 9 June 2022. The results will be analysed alongside the responses to the earlier investigation.

There are three specific aspects of the consultation that are of particular concern. The first is the proposal to publish information about the opening of an investigation (i.e. before any finding of regulatory breach has been made), the second is to publish “provisional decisions”, and the third is to publish the decision to refer a matter to another regulator for consultation.

What did the Skills Act say about publication?

The Skills Act amends the Higher Education and Research Act 2017 and expressly confirms the OfS’s power to publish “notices, decisions and reports given or made in the performance of its functions”. This does not affect any other power of the OfS to publish such a matter. In deciding whether to publish a notice, decision or report, the OfS must consider:

  • the interests of students, prospective students and graduates

  • the interests of providers

  • the need to avoid publishing information about a particular body or individual, where publication would or might, in the opinion of the OfS, seriously and prejudicially affect the interests of that body or individual; and

  • the public interest

The Skills Act expressly authorises the publication of decisions to conduct an investigation, subject to the same considerations, with the additional safeguard that if the OfS subsequently terminates an investigation without taking any action, it must publish that fact too.

The Skills Act includes provisions protecting the OfS from defamation claims arising from publication of information about providers, unless malice can be shown. But there is an important qualification to this protection where the publication relates to the opening of investigations.

The OfS is not protected from claims for defamation in relation to the publication of the decision to conduct the investigation if it includes any information other than -

  • a statement of the decision to investigate

  • a summary of the matter to be investigated, and

  • the identity of the provider, body or individual under investigation

What are the potential issues with the proposal to publish the opening of an investigation?

The OfS’s supplementary consultation indicates that it will “normally” expect to publish information about the opening of an investigation, and in so doing will have regard to the matters it set out in its earlier consultation under Annex C.

Annex C referred broadly to factors similar to those in the Skills Act, summarised above, but they are not identical. Annex C also merely states that the OfS would normally have regard to these factors, rather than as required by the Skills Act, that it “must” consider them.

By stating it will “normally” publish, the OfS may also create doubt that it will apply its mind objectively and properly to the statutory considerations. After all, the Skills Act indicates that each decision to publish should be based on the statutory considerations, rather than creating a blanket presumption in favour of publication with limited exceptions, which is what a statement that something will normally be published implies.

This is particularly so given that the factors set out at Annex C made sense when applied to a finding of regulatory breach, but make far less sense when applied to a decision to investigate. There is also no clear articulation of the threshold for launching an investigation – does the OfS have to be satisfied that there is a prima facie case of breach, or is it merely making enquiries as a result of a particularly pearl-clutching tabloid newspaper column, for example?

For example, Annex C states that one of the reasons publication may be in the student interest is so that prospective students have information to help them make an informed choice about the value of the course and provider in question. How does the knowledge that there is an investigation underway assist a prospective student, especially given the very basic information that the Skills Act anticipates will be published? It would of course be wrong for anyone to infer or imply that the opening of an investigation equated to a settled conclusion of breach. Isn’t it therefore more likely that it will confuse prospective students who can hardly be expected to understand what level of confidence they can have that the alleged breach has in fact occurred?

What are the potential issues with the publication of provisional decisions?

The main problem with the proposal to publish provisional decisions is that it is not at all clear what these are. The supplementary consultation refers only to provisional decisions about sanctions, which it describes as “provisional” in the sense that the sanction may be subject to appeal. Regulatory Advice 15 (Monitoring and Intervention) includes one reference to provisional decisions in different terms: “we expect there to be cases where the evidence the OfS already holds is sufficient to reach a provisional decision that there is a breach of a condition….in such a case, the OfS would be unlikely to seek further evidence and the provider would be invited to submit further information it considers relevant as part of a formal representations process.”

There needs to be a much clearer explanation of how and when a provisional decision might be made, how this relates to the opening of an investigation and how it differs from the process for reaching a final decision.

What are the issues with publishing referrals to other regulators?

By definition, the OfS is likely to refer matters to other regulators where it does not have the power, capability or the competence to act on its own account. Just as it is difficult to see how the Annex C factors apply to a decision to commence an investigation, so too is it hard to apply them to a referral to another regulator. For example, one of the factors against publication listed in Annex C is that it may prejudice the investigation of another regulator, but at the point of referral by the OfS, it would not be possible to know what might prejudice such a putative investigation.

It is also the case that at least some of these other regulators or enforcement agencies have their own publication standards. Some, for example, will not publish until they have opened an investigation themselves, or until they have commenced enforcement proceedings. It is difficult to see what possible public interest there would be in publishing information ahead of the point at which the statutory regulator responsible for investigation of the matter in hand considers it appropriate to do so.

Conclusion

There is definitely a strong student, sector and public interest in transparency in regulation. But it is important that the reliable conclusions can be drawn from the information published by a regulator, to protect the interests of providers and their students and to maintain public confidence in the system of regulation itself. For the reasons set out above, the OfS’s current proposals fall short in both respects.

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The new Procurement Bill raises important questions for higher education institutions

Blog | Education

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The big news for procurement watchers is that the Government has finally published its Procurement Bill. The Bill follows a public consultation and announcement during the 2021-22 Parliamentary Session, but failed to find Parliamentary time.

The Procurement Bill re-regulating public sector procurement was introduced in the House of Lords on 11 May, and the Second Reading is scheduled for 25 May.

Which bodies are covered by the new procurement Bill?

The procurement rules in the Bill will apply to both public bodies and to utilities. So far, this simplifies the existing legislation by consolidating the regulation of public bodies and utilities under the current suite of rules: the Public Contracts Regulations (PCRs), Defence and Security Public Contracts Regulations, Concession Contracts Regulations and the Utilities Contracts Regulations.

The draft bill uses the defined term “public authority”, which excludes certain listed authorities. These excluded authorities include Scottish authorities, which are governed by the Scottish law regulations - those remain firmly aligned to the EU Directives, in case that particular parachute cord needs be pulled - and the security services.

What is the definition of “Public Authority”?

The concept of a public authority would be fine, but the Bill provides the entirely unhelpful non-definition of public authority as follows:

“’public authority’ includes any authority with functions of a public nature that:
(a) is funded wholly or mainly from public funds, or
(b) is subject to contracting authority oversight.”

Using the term “includes” unhelpfully means that the concept is now an open list. While those authorities which exercise functions of a public nature and are wholly or mainly publicly funded are within that list, conceivably this could also include those authorities which are not.

Unlike the current PCRs, this definition does not even include a legislative test which you can apply in order to determine whether an entity falls within the scope of the definition or not and leaves it to judicial discretion. This legislative approach where “you will know it when you see it” is completely counter to the principle of legal certainty.

It contrasts with, for instance, the Freedom of Information Act which contains a schedule clearly defining the scope of public authority for the purposes of that Act and is more in line with the definition of public authority in the Human Rights Act. It makes much more sense to adopt the FOI, rather than HRA definition as a matter of legal policy and principle: it would provide legal certainty and in principle, it shares the same underlying policy goal of FOI which is to provide transparency.

How does this affect higher education institutions?

The current procurement rules under the PCRs currently apply to higher education institutions to the extent that they derive more than 50% of their funding from public sources. There has always been a puzzle with determining whether Student Loans Company funding was treated as public funding or not. This is because on the one hand the funding is referable to a student, but on the other, the funding never leaves public control and even the ONS treats student loans, in part, as public funding on the basis that around 45% of them are never repaid.

With this definition we now have the double-puzzle of (a) identifying whether SLC funding is “public funds”; and (b) even if it is not, whether a higher education institution is nonetheless subject to the procurement rules if it exercises functions of a public nature.

You can find out more and register for a Government webinar tomorrow at the following website.

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DfE launches consultation on the SEND and alternative provision system in England

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On 29 March 2022, the DfE launched a consultation regarding the future of the Special Educational Needs and Disabilities (SEND) and Alternative Provision system in England.  

While many changes to the SEND system were introduced in 2014, there is still evidence that families and children feel unsupported and many children with SEND have continued to fall behind compared to their peers. The pandemic has disproportionately affected these children even further, which has exacerbated pre-existing problems within the SEND system.  

The SEND review was commissioned to allow the Government to better understand the challenges faced and to consider what changes to the existing system are necessary to establish a system that properly supports SEND children. A green paper has now been published which sets out the Government’s proposals. The key change is to establish a single national SEND and Alternative Provision system, which is not dictated by postcode, with clear standards for what children should expect to receive and the processes for accessing this support. The green paper can be accessed here. 

The consultation is seeking feedback on the following key areas: 

  • The key factors to be taken into account when developing national standard for delivery of outcomes to SEND children and families, and what key metrics should be used to measure local and national performance

  • How the proposed local SEND partnerships should work in practice and what should be their scope to avoid duplication or unnecessary burden while ensuring fairness and consistency in offering. Also, how can the proposed SEND Delivery Board work best with these local partnerships to ensure proposals are delivered effectively

  • How the existing EHCP could be improved and amended ahead of moving to a digitised and standardised system

  • The proposal to provide parents with more transparency and a list of tailored and available provisions for their children, and how this could best work in practice

  • The proposal to strengthen redress by introducing clearer standards for how complaints regarding SEND processes and provision can be addressed and who is responsible for resolving concerns. The consultation also seeks feedback on the remedies currently available through the SEND tribunal system

  • Proposal to introduce more specialised SENCOs in early years settings

  • What further work can be done to ensure young people with SEND can participate and access apprenticeships and similar training

  • How the proposed structured vision for alternative provision will result in improved outcomes and quality of provision

  • How funding bands should be developed nationally to achieve objectives

  • What are considered to be the biggest barriers and enablers to the success of the proposed reforms?

We would encourage schools and colleges to submit their views to the consultation to ensure that the proposed reforms adequately address the issues faced by those on the front line.  

The consultation closes on 1 July 2022 and can be accessed here.

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Skills and Post-16 Education Act 2022 is passed

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One of the final pieces of legislation to pass as the current Parliamentary session ended last week (April 2022) was the Skills and Post-16 Education bill.

The bill gives a statutory footing to a number of ideas introduced by the White Paper published by former Secretary of State for Education, Gavin Williamson, in January 2021, and as has been taken on by his successor, Nadim Zahawi.

The government believes that the Act will “transform the skills, training and post-16 education landscape and level up opportunities across the country”, although the passage of the bill through Parliament was far from smooth. In particular, the government was forced to agree a 12 month extension to funding for BTECs, whose withdrawal and replacement by T-Levels remains contentious for the sector.

The flagship policy of the White Paper, and as had previously been trailed by the government, is their “lifelong loan entitlement”, providing access to funding for up to four years of post-18 training, designed to enhance and “level-up” skills education. However, while there is now a statutory basis to the policy, the detail remains out for consultation, and the ability to access loans is unlikely to take effect before 2025.

The White Paper had a focus on skills education meeting local employment needs, and this is reflected in the new Act both through the development of the concept of “local skills improvement plans” and the requirement on college governing bodies to review and publish how their education and training offer is meeting local skills needs.

However, while the passing of the Act, and the government’s increased focus on the FE sector as part of the “levelling up” agenda, will be welcomed, the question of funding remains, with the sector still facing a significant gap in real terms funding as compared to 2010.

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Green Campus Survey -
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Universities and colleges are ideally placed to lead the way in the fight to mitigate the effects of climate change across the full range of their operations, from research, teaching and skills work, to built environment, procurement, purchasing and partnering as well as international and civic missions.

The purpose of this survey is to understand the education sector’s point of view on green campuses – what are the barriers and how embedded is sustainability into all aspects of further and higher education.

And whether the sector believes sustainability has an impact on which institutions students choose to attend.

We’ll be comparing the results from those working for institutions with the opinions of young people thinking about applying to college and university.

A report sharing the results will follow – you can sign up to be the first to receive this report here.

This survey will take no longer than five minutes to complete and your data will remain anonymous.

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DfE consultation for proposed changes to Keeping Children Safe in Education – ends 11 March 2022

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In January this year, the DfE launched a consultation into the proposed changes to Keeping Children Safe in Education (KCSIE). Responses to the consultation must be made by March 11 2022. The proposed changes are due to come into effect from September 2022.

A draft version of the proposed KCSIE 2022 is available alongside the consultation documents.

The main proposed areas of consultation include:

  • Seeking feedback on whether the guidance contained within KCSIE 2021 provides sufficient detail as to the safeguarding obligations for 16-19 academies, special post-16 institutions and independent training providers.

  • Whether KCSIE should acknowledge that children may not be ready or know how to report abuse, exploitation or neglect.

  • The proposed additional content (at paragraphs 82 – 93 of the draft KCSIE 2022) to remind Governors and Proprietors of their legal duties under the Human Rights Act 1998 and the Equality Act 2010 (including the Public Sector Equality Duty, where applicable) regarding safeguarding, sexual violence and harassment.

  • The possibility of strengthening the training requirements to make it an explicit requirement that all governors and trustees receive safeguarding and child protection training (including online safety) at induction and receive regular updates.

  • Requesting feedback regarding whether the changes to Parts 2 and 5 of KCSIE 2021 implemented last September (including the guidance on systems for reporting abuse) have supported schools and colleges in taking a whole school approach to safeguarding.

  • Requesting feedback on whether changes regarding online safety introduced in KCSIE 2021 have helped embed online safety into schools’ and colleges’ approach to safeguarding. The consultation also requests participants’ views on any further changes that should be made to KCSIE to further support schools and colleges in how to keep children safe online both in school and during remote learning.

  • Requesting feedback on whether changes regarding online safety introduced in KCSIE 2021 have helped embed online safety into schools’ and colleges’ approach to safeguarding. The consultation also requests participants’ views on any further changes that should be made to KCSIE to further support schools and colleges in how to keep children safe online both in school and during remote learning.

  • A proposal to remove information regarding the role of the designated safeguarding lead from Part 2, to new Annex C, with a view to encouraging more people to read the job description of a DSL.

  • The proposed introduction of new paragraphs 198 and 199 of the draft KCSIE 2022 which recognise that LGBT children may be at greater risk of harm due to their sexual orientation (or perceived sexual orientation).

  • Concerning Part 3 on Safer Recruitment, KCSIE 2021 saw a significant overhaul with a view to making the guidance easier to follow and akin to a typical recruitment exercise. The DfE is now seeking feedback on whether the changes have achieved this aim and what (if any) further changes may be useful.

  • Seeking views on the proposed suggestion that schools and colleges should consider undertaking online searches of shortlisted candidates (such as using social media) prior to interview.

  • Requesting feedback on whether the new low-level concerns guidance now included at Part 4 of KCSIE 2021 is useful to schools and colleges in recognising and handling concerns that do not meet the harm threshold. Also seeking views on whether schools/colleges would disclose substantiated low-level concerns in employee references.

  • The proposal to remove the standalone Sexual Violence and Sexual Harassment advice and incorporate it within KCSIE 2022.

  • An information gathering exercise to expand the DfE’S knowledge base regarding issues previously raised in consultations which the DfE is aware are concerns to participants but that it has not yet addressed within the draft guidance. This includes issues such as the sharing of nudes and semi-nudes, and filtering and monitoring requirements for schools.

There is a table at Annex F of the proposed new guidance (page 168) which summarises all of the proposed changes which may be useful, alongside this note, when completing the consultation form.

We would encourage schools and colleges to submit their views in the consultation to ensure that the final version of KCSIE 2022 is as useful and workable to the sector as possible.

The consultation closes on 11 March 2022 and can be accessed here. The response to the consultation will be published later this year.

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Emma is a Solicitor within the firm’s Education team specialising in employment advice for education clients including independent schools and academies, as well as both further and higher education institutes.

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Independent Commission Report recommends better collaboration across HE, FE in the UK

Blog | Education

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On 7 February, the Independent Commission on the College of the Future released their much anticipated further report, “Going Further and Higher”, on how collaboration between colleges and universities can transform lives and places.

Background

The Commission is looking at what the UK wants and needs from its colleges in 10 years’ time and what changes are needed to achieve this. Following extensive consultation with the sector, they released their vision for the future through their report published in 2020.

The Commission is now building on this work by exploring themes that emerged from their report, and the first of these themes is collaboration.

Collaboration rather than competition

Collaboration is something that we feel strongly about. We are fortunate enough to work with many wonderful institutions across the FE and HE sub-sectors, and already see the benefit of cross-sector working in many places.

Recent policy announcements by the government, such as the FE Skills White Paper of 2021, while welcome in themselves, have however all too often given the sense that one education sub-sector was being given favour and preference over another. In recent times, and in accordance with the government’s “levelling up” agenda, that has seemingly been in favour of FE, and to the potential detriment of HE. That in itself is an about turn on the last 15 or so years, where policy often focussed on HE, while investment in FE was neglected.

However, our strongly held view is that it doesn’t have to be like this - and that by encouraging working together, not in silos, or worse still against each other, institutions can achieve more, and create better results for their students and for all our futures. We are therefore delighted that the Commission, advised by an expert panel, including our very own Head of Education, Smita Jamdar, have taken the time to explore this issue and publish their findings.

The report’s recommendations

The report makes a number of recommendations, both for sector leaders and for the governments of our four nations.

In terms of sector leaders, the report recommends building strong place-based networks. The Commission sees this involving an agreement as to the institutions involved, embracing existing local skills and specialisms. This would then allow the development of a cohesive education and skills offer for local people, employers and communities built around lifelong learning, ensuring inefficient duplication and competition is reduced. The Commission also recommends a movement beyond personal relationships and agreement on how the whole institution is involved in collaboration, with clear roles and shared responsibility for partnership.

For the government, the Commission recommend setting an ambitious 10 year strategy to ensure lifelong learning for all and to deliver on national ambitions. Echoing the concern above, the Commission want to see a balanced investment in FE and HE to ensure the whole education and skills system is sustainably funded, so that colleges and universities can work in the interests of their local people, employers and communities. The Commission also makes recommendations on equal funding support for students across HE and FE, creating a single funding and regulatory body for all post-16 education and skills and defining distinct but complementary roles for colleges and universities to avoid a turf war over who delivers various types of education and training.

The full report can be accessed here.

Next steps

The Commission will continue to push the theme of collaboration through a series of events across the course of this year, with a view to encouraging both the sector and government to get on board with its recommendations, for the benefit of the whole sector and us all.

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Tom works with employers to prevent and resolve people issues, to ensure their organisations continue to work efficiently and effectively.

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New OfS Regulatory Advice on Reportable Events – what it means for providers

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In February 2021 the Office for Students concluded its consultation on reportable events. The Office for Students' consultation on reportable events - Shakespeare Martineau.

The OfS has now published its updated regulatory advice on reportable events, which is effective from 1 January 2022. We explore what this means for providers.

“Reportable events” are the events or matters registered providers are required to report to the OfS, and in the original consultation the OfS proposed a new definition for a reportable event, and new guidance to assist providers in deciding whether to make a report in recognition of the difficulties providers were having with the current approach.

Regulatory advice 16: Reportable events - Office for Students

There is now a new definition of a reportable event:

“A reportable event is any event or matter that, in the reasonable judgement of the OfS, negatively affects or could negatively affect:

  1. The provider’s eligibility for registration with the OfS.

  2. The provider's ability to comply with its conditions of registration.

  3. The provider's eligibility for degree awarding powers, or its ability to comply with the criteria for degree awarding powers, where the provider:

    • holds degree awarding powers; or
    • has submitted an application for degree awarding powers to the OfS, and for which the OfS has yet to reach a final decision.
  4. The provider's eligibility for university title, where the provider:

    • holds university title; or

    • has submitted an application for university title to the OfS, and for which the OfS has yet to reach a final decision.

In interpreting ‘the reasonable judgement of the OfS’, the OfS will, as a matter of policy, consider whether a reasonable provider intent on complying with all of its conditions of registration and acting in the interests of students and taxpayers (rather than in its own commercial, reputational or other interests), would consider the event or matter to be material.”

Whilst this is broadly similar to the proposed definition in the consultation, the OfS has gone further to make it clear that the third and fourth criteria also apply to providers who have submitted applications for degree awarding powers/university title.

What matters should be reported, and when?

The guidance contains a table (Table 1) containing a non-exhaustive, illustrative list of reportable events, which includes some events that are and have always been reportable.  These include a merger, change of ownership, loss of student sponsor licence, breach of a financial covenant attached to a loan, change in the identity of the accountable officer or chair of the governing body and the closure of a campus, department or subject area.

A provider is required to report an event within five working days of the date that the event is identified or, if that is not possible due to exceptional circumstances beyond the control of the provider, as soon as reasonably practicable thereafter and without undue delay. The guidance provides further details with regard to timings for events that have yet to happen but are in contemplation, eg. a merger or closure of a subject area, and events that have already happened but which the provider might only become aware of later, eg a possible fraud.  The OfS will consider whether a provider met the timescales for reporting an event as part of the assessment of the event.

A report must be made online via the OfS portal.

One thing to note is that the OfS has made clear that the new reporting requirements are not intended to have a retrospective effect, and so events that occurred during the period when reduced reporting requirements were in place, which were not reportable at the time, will not need to be reported under the revised requirements.

OfS assessment of a reportable event

The OfS will review the information submitted (and may ask for further information) and following consideration will determine one of the following next steps:

  1. The information contained in the report should be recorded but no further action is required from the provider at this time.

  2. A more extensive assessment is required because the information contained in the report is likely to affect the provider’s eligibility for registration, its compliance with its conditions of registration, or its eligibility for degree awarding powers and university title, or its ability to comply with the criteria for degree awarding powers (where relevant).

  3. A more extensive assessment is required because the information contained in the report adds new information to a known issue or to a pattern of events or issues.

If an extensive assessment is carried out and the OfS decides there is an effect on the provider’s eligibility for registration, a change in the OfS’s risk assessment for one or more conditions of registration (with risk increasing or decreasing, or crystallising into a breach of a condition), or an effect on the provider’s eligibility for degree awarding powers or university title or its ability to comply with the criteria for degree awarding powers (where relevant), further assessment or action will be taken in response.

What does this mean for providers?

Providers will need to ensure that they have the optimal internal processes in place to identify reportable events in a timely way. Therefore, steps should already have been taken and if not, should be put in place rapidly, to make sure that potentially reportable events are considered at an appropriate level, systems are in place for recording decision-making and that the processes for reviewing potentially reportable events are reviewed periodically to check that they are operating effectively.

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As a core member of the Education team, Anieka works solely with clients in the education sector advising on a whole spectrum of matters.

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Flexible working in schools – making it work

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On 22 November 2021, the DfE published tailored non-statutory guidance regarding flexible working arrangements for schools and academies (available here).

What is the definition of flexible working?

The guidance aims to help schools develop and implement appropriate flexible working policies as well as to support school employees who want to request flexible working.

The guidance defines flexible working as “arrangements which allow employees to vary the amount, timing, or location of their work”. Flexible working, therefore, includes part time working; job shares; phased retirement; staggered, compressed, annualised or other variable hours arrangements; time off in lieu; home or remote working; and/or the use of personal/family days.

The DfE has updated the school’s guidance to take into account the different types of flexible working requests that employees are now making, drawing on the latest evidence on flexible working, including the recent research “Exploring Flexible Working Practices in Schools”, as well as good practice examples from within the sector.

The schools sector has typically supported traditional flexible working requests for such arrangements as job shares, part time working and variable hours, often to support teaching staff who have dependents or are nearing retirement. Requests for flexible working in schools were traditionally made under the statutory procedure set out in the Employment Rights Act 1996 and were available to any employee that had been employed for at least 26 weeks, provided they had not made an application under the regime in the past 12 months.

However, following the coronavirus pandemic and the government’s instruction to work from home if you can, working practices in the UK have changed significantly leading to employees readdressing how and where they want to undertake their work. As a result, we’re now seeing an increase in requests for home working or variable/compressed hours from employees within the sector. Requests are now being made both under the statutory regime and in the form of informal discussions, for either permanent or temporary working arrangements. Both routes are considered within the guidance.

The key take home points of the guidance are:

  • Schools should consider embedding strategic, whole school approaches to flexible working within a flexible working policy, with contribution from all parties, including trade unions where appropriate.

  • Flexible working arrangements feed into an employer’s duty to protect the health, safety and wellbeing of its staff and should be considered as a means of minimising stress related illness.

  • Some flexible working arrangements may be more suitable for particular roles than others, but any member of school staff can make a flexible working request.

  • Flexible working requests can be made using the statutory procedure or the non-statutory procedure. Irrespective of the procedure used, the guidance encourages dialogue between the parties to consider the impact of the request and the available options.

  • Trial periods are encouraged to test out plausibility of flexible working arrangements for both the school, and the employee.

  • Schools have a duty to consider requests for flexible working fairly, in a timely manner and according to due process based on business need. The school makes the ultimate decision on whether or not to accept flexible working requests.

  • Flexible working arrangements should not be used to address excessive workloads.

  • Policies and decisions regarding flexible working should comply with the school’s obligations under the Equality Act 2010.

What do schools need to do?

The guidance acknowledges that there are already challenges to overcome with implementing flexible working arrangements in a school setting. However, the guidance seeks to encourage schools and its employees to work together to establish arrangements that work for both parties, while ensuring consistent high-quality provision for pupils.

The guidance does not pose an obligation on schools to grant all flexible working requests made, but they must be considered.

If the request has been made under the statutory procedure, schools must be mindful of their obligations under the legislation with regards to how and when they must respond. Failure to comply with the rules may result in liability for the school of up to eight weeks’ pay, and/or an order for reconsideration of the request being ordered by the Tribunal. Employees may also consider bringing claims for unlawful detriment and/or automatic unfair dismissal, each of which carry additional financial liabilities if successful.

If a school has received a flexible working request and requires guidance on how to respond, in light of the guidance, particularly where the request has been made under the statutory procedure, we have a team of experts ready to assist.

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Emma is a Solicitor within the firm’s Education team specialising in employment advice for education clients including independent schools and academies, as well as both further and higher education institutes.

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Statutory guidance on school uniforms released – what schools need to do

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On 19 November 2021, the DfE published new statutory guidance on the Cost of School Uniforms. The guidance applies to academies (including academy trusts) and maintained schools, and governing bodies must consider the guidance when developing and implementing their school uniform policies. All establishments will need to comply by 2023.

What is the purpose of the new school uniform guidance?

The purpose of the guidance is to ensure that the total cost of school uniform is reasonable and that it secures the best value for money (including in durability and quality) so that the cost of uniform is not a barrier or consideration for parents when making a decision about which school to apply to or attend.

The main ‘take home’ points from the guidance are:

  • Schools should engage with parents and pupils in the preparation of its uniform policy and should be able to demonstrate that these views have been considered.

  • The school uniform policy should be clear to understand. It must be published on the school website and made available to parents and prospective parents when required.

  • The highest priority should be given to the cost and quality of products. The guidance sets out specific requirements for supply arrangements and tendering which must be adhered to. Specifically, single supplier contracts should be avoided unless competitive tenders are run. These must be retendered every five years as a minimum.

  • Branded items should be kept to a minimum and preferably restricted to items that are long lasting or where multiples are not required (i.e. branded school ties, rather than school shirts). Branded items are not only items with the school logo or branding, but are any item that contains a distinctive characteristic that makes it unique to the school (i.e. coloured trim, specific design, or a specific fabric). This is a key aspect of the guidance and schools should ensure this section is read in full and understood.

  • Schools should ensure that second hand uniform is available, and information regarding these arrangements should be clearly published on the school’s website and within the uniform policy.

  • Schools should also take into account all items of uniform or clothing parents will need to provide while their child is at the school. This includes items in their PE kit.

  • Complaints regarding uniform should be handled internally in accordance with the school’s complaints policy.

The purpose of uniform policies

Whilst it is for the governing body to decide a school’s policy on uniform, the DfE strongly encourage schools to have a uniform to promote a sense of ethos in the school; to provide a sense of belonging and identity; and to set an appropriate tone for education.

A uniform creates a common identity among pupils and acts as a social leveller. A uniform can also reduce bullying and peer pressure by insisting all pupils are dressed similarly. That being said, if a uniform policy requires uniform that is too expensive so much so that a distinction can be made between those that can afford it and those that can’t, this will negate the benefits associated with a uniform, and may result in bullying, reduced attendance and lack of participation from certain pupils.

Equality considerations

Uniform should be affordable, practical, and must comply with the obligations under the Equality Act 2010.

Schools should aim for uniform policies to be as inclusive as possible and should be considerate in their application of the policy so that all pupils are able to wear the uniform.

The non-statutory guidance “School uniform: guidance for schools” which should be read in conjunction with the statutory guidance sets out specific guidance on drafting a uniform policy that does not fall foul of the Equality Act 2010, specifically in relation to the requirements of dress associated with some religions and beliefs.

It does clarify that schools are able to have different uniform requirements for girls and boys, but it is clear that it must not indirectly discriminate between genders, for example, by the requirements for girls’ uniform being more expensive than boys’ uniform.

Schools should consider taking legal advice if there are certain requirements for uniform or dress which may be problematic.

Schools should also engage with pupils and parents when developing their uniform requirements to ensure that it is suitable for the community. A school must be willing to be flexible and allow for some individual variations when necessary to avoid discrimination and should recognise that a uniform policy and what is acceptable and appropriate may change over time.

What do schools need to do?

In light of this guidance, schools must undertake a review of its existing uniform policy to determine what changes (if any) are required. Regular reviews of the policy should be carried out to ensure it is still fit for purpose, however, schools must avoid making frequent changes to specification to minimise the financial impact on parents.

If a school needs to make changes to existing uniform requirements, it must work with its existing suppliers to agree on a sensible transition period. Where a competitive process needs to be carried out for a supplier, the contract should be in place by December 2022 so the provision of uniform in Summer 2023 is not interrupted.

Schools must be compliant with much of the guidance by September 2022, and fully compliant by Summer 2023 unless one of the limited exceptions in the guidance applies.

With this in mind, schools must take the following steps before parents begin purchasing school uniform in Summer 2022:

  1. Review the existing uniform policy to identify whether any changes are required, taking professional advice if in doubt

  2. Make necessary changes to uniform specification, including removing any unnecessary branded items, keeping in mind how the changes might impact different groups of pupils disproportionately

  3. Ensure that the policy clearly states:
    • whether an item is optional or required;
    • if it will be required all year round, or just for particular times of the year;
    • if it needs to be obtained from a specific supplier; and
    • whether or not a generic item in place of a branded item will be acceptable

  4. Publish the updated uniform policy on the school website and make it available for parents and prospective parents

  5. Ensure arrangements for purchasing second hand uniform (whether in school or via an established scheme) are introduced and signposted

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Esther is an experienced and trusted advisor to the firm’s education clients and supports them in dealing with a range of sensitive and complex employment and education related issues.

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What does the OfS consultation on its new strategy tell us about regulation in the years ahead?

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OfS consultation

The OfS has published a consultation on its new strategy for the period 2022 – 2025, which closes at noon on 6 January 2022.  The new strategy highlights a range of specific issues which institutions will need to be ready to address over that period.  

It’s all about the base(line)

The consultation confirms that the OFS sees its regulatory expectations (defined as both the conditions of registrations and “softer” tools such as statements of expectations) as the minimum performance that students and taxpayers are entitled to see. 

Therefore, its focus is on, and will remain on, providers who fail to meet these baseline expectations. Up until now that has principally meant focussing on the baseline as part of the registration process, where the judgments were made at provider level, but now the focus will shift to the ongoing compliance of registered providers. This could result in quite granular enforcement; for example, the strategy anticipates that individual courses that do not meet the quality and standards baselines will be “improved or closed”. This extends significantly the number of providers who are potentially “in scope” for action of this type and raises questions about how such action could affect the rights of students already on or recruited to the courses in question. More generally, institutions themselves will need to ensure that their processes for identifying and addressing instances of non-compliance at course or department level are robust and speedy. 

On the plus side, providers operating above the baseline are told they can expect to see a reduction in bureaucracy and regulatory burden. How this welcome assurance will be operationalised by the OfS remains to be seen, given the increasingly granular nature of its proposed enforcement.  Performance beyond the baseline will be encouraged through influence and incentives, including use of the OfS funding powers, rather than regulatory activity.  

Even more welcome is the OFS’s commitment to looking at a regulatory “sandbox” approach to support innovation, as we called for in this September 2021 blog OfS consultation: Regulating quality and standards – how far is too far? - (shma.co.uk), although this is likely to be small in scale.  

Quality matters

The new strategy identifies two focus areas, the first of which is quality and standards. We are still awaiting the outcome of the consultation into the suite of new registration conditions dealing with this area. The new strategy tells us that these will be robustly enforced, and will be underpinned with a new registration condition on student outcomes, and by the implementation of the next iteration of TEF.  

Free speech, inevitably, gets a mention, and the intention is that the OfS will respond to individual cases and take enforcement action where providers have failed to take positive steps to secure free speech, including where this has resulted in the inhibition of minority, unpopular and controversial opinions. 

Action will be taken under the OfS’s existing powers and will increase once the new powers under the Higher Education (Freedom of Speech) Bill comes into force. This does rather raise the question of why, if the problem is as severe as it is stated to be, the OfS has not yet used any of its existing powers.  

Equality of opportunity

In addition to a continued focus on access and participation, the OfS intends to stimulate more flexible and innovative provision so that prospective students have a diverse range of opportunities throughout their lives. The new strategy recognises that the regulatory approach may have to adapt to fit the new lifelong loan entitlement, whenever details of that are finally published.  

The OfS intends to consider further what action would be effective in regulating the way providers deal with cases of harassment and sexual misconduct. This will include qualitative and quantitative research on the scale of the problem, an analysis of what providers are doing in response to the OfS statement of expectations in this area and the development of an approach that will drive culture change, through the sharing of best practice and targeted enforcement activity. (It is a pity that a similar approach is not being proposed to deal with the perceived free speech issues on university campuses.) 

Further work will be done on the consumer protection and student protection registration conditions as well as the effectiveness of management and governance.  

What’s the carrot?

The carrot dangled in front of providers is the promise of risk-based regulation and an expectation that by the end of the strategic period, the OfS will have varied regulatory requirements for individual providers based on risk. However, rather disappointingly, this appears to involve increasing requirements on high risk providers, rather than reducing them for lower risk ones.  

Conclusion

The proposed new strategy is more evolution than revolution, but institutions should nonetheless brace themselves for a more intrusive approach to regulation in areas such as access, quality and standards, and consumer/student protection, as well as a greater focus on enforcement. It will be more important than ever for institutions to have clear processes and accountabilities for discharging regulatory requirements and for identifying and addressing potential breaches as quickly as possible.  

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Smita leads the team that works to shape the universities and colleges of the future by providing strategic advice and sector-specific insight across all their legal needs.

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Working with higher and further education institutions, independent providers, academies, and schools, our full-service team can advise on any legal issue that an education institution may have. This includes regulatory and policy work, employment issues,  student matters, governance and constitutional questions, partnerships and collaboration, disputes, large-scale capital projects, and estates master planning.

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ICO consults on new way forward for international data transfers

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International Data Transfers

The ICO’s consultation process on international data transfers is currently underway, as part of the UK’s first post-Brexit step to legitimise international transfers of personal data out of the UK.  

The consultation is important for education institutions and particularly relevant to any university or college that transfers personal data outside the UK, EEA or those countries which the UK has confirmed provide adequate protection for personal data.  

Scope of the ICO consultation

The ICO’s consultation is split into the following three sections: 

  1. International Data Transfer Agreement (“IDTA”) 

    The IDTA is the ICO’s draft document which UK education institutions will need to implement when transferring personal data outside of the UK (available here). 

    The IDTA, which will replace the current set of Standard Contractual Clauses (“SCCs”) for transfers of personal data from the UK, consolidates the full range of SCCs that may be required into one document. The IDTA caters for controller-processor, controller-controller and processor-processor; but notably it does not provide for processor-controller scenarios in the same manner as the new EU SCCs. The IDTA includes four parts: 

    • template tables to be populated for each relevant transfer, capturing specific information about the parties, for example the names of the parties, the details of the personal data transferred and any security requirements; 
    • optional extra protection clauses, such as additional technical security protections, organisational protections or contractual protections; 
    • optional commercial clauses agreed between the parties, provided that these do not contradict the IDTA; and 
    • a set of mandatory clauses, which must be adopted in their entirety except only to remove sections that the parties explicitly agree to omit, adapt cross-referencing and add more parties to the IDTA. 
  2. A UK Addendum

    The ICO has produced a UK addendum for inclusion to the European Commission’s standard contractual clauses (available here). The UK Addendum can be used as an alternative to the IDTA and substitutes references to the EU GDPR with UK GDPR and addresses issues such as governing law and choice of forum and jurisdiction for disputesThis will be invaluable for institutions that are routinely making data transfers to international campuses or partnersthe UK Addendum allows you to use just one set of SCCs (the EC SCCs along with the UK Addendum) to cover both transfers, avoiding the need to use both the EC SCCs and the UK IDTAthereby simplifying the contractual process. The inclusion of the UK Addendum undoubtedly shows the ICO’s willingness to integrate with global privacy positions. 

  3. Risk Assessment Guidance

    The ICO’s guidance on international data transfers has been produced in response to Schrems II, in order to assist organisations with carrying out a transfer risk assessment. The guidance includes a practical and user-friendly draft TRA tool (available here). It is designed to be used alongside the IDTA to evaluate risks associated with personal data transfers to third countries, with clear examples of the criteria to take into account, decision trees, risk factors, and mitigations that institutions can apply when undertaking a risk assessment.  

    The draft risk assessment tool takes into account three steps to evaluate the risk: 

    • appraise the transfer itself (e.g. consider the purpose of the transfer, types of personal data and categories of data subjects); 
    • assess if the IDTA is likely to be enforceable in the destination country; and 
    • consider whether there is appropriate protection for the data from third-party access.  

What does this mean for education institutions?

The new IDTA and risk assessment guidance is welcome news for UK-based institutions, particularly those that have international campuses or partners and act as both controllers and processors. The consultation provides some certainty on the approach to data transfers from the UK post-Brexit and supports planning around refreshing the SCCs. 

For the time being, the trans risk assessment and IDTA are in draft form pending completion of the consultation; following which proposals will be laid before parliament 

Institutions should continue to review international data flows, transfers under the existing SCCs and current practices and consider the changes that may be required. 

For further information on this consultation and the impact it could have for institutions, contact Isabelle Hugh-Jones or another member of the education team. 

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Isabelle has recently qualified as a solicitor in the Commercial and IP team and advises clients on a wide variety of commercial matters including commercial contracts, intellectual property, IT and data protection.

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With a long-standing involvement in and commitment to the education law sector, our team have extensive experience across all legal issues that affect education institutions. guiding and supporting our clients through challenges and opportunities.

Working with higher and further education institutions, independent providers, academies, and schools, our full-service team can advise on any legal issue that an education institution may have.

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What are the options for the consolidation of special purpose vehicles (SPV’s) for a university?

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Special Purpose Vehicles and consolidation

When it comes to corporate restructuring and insolvency, there are various options for universities wanting to consolidate.

Many universities will have incorporated separate companies to carry out certain operations, such as the provision of catering supplies or nursery services, with many operating profitably and providing a service to students, staff, and the local community.

Similar special purpose vehicles (SPVs) may also have been set up to deal with a particular piece of research work or to work alongside external bodies in a joint venture arrangement.

Some of these SPVs may be lying dormant after a research project or specific initiative has fulfilled its objective or come to a close. Keeping these companies on the books can increase administration costs for accounts and compliance teams unnecessarily, or the SPV could be sitting on valuable cash or assets that could be reinvested into new projects.

Taking the time to tidy up the corporate structure of a university can have many benefits and there are three options;

  • strike the company off from Companies House
  • a members’ voluntary liquidation
  • creditors’ voluntary liquidation.

Strike off

If a company has been inactive for at a period of least three months and satisfies certain other criteria, it can simply be removed from the register of companies and dissolved by a simple application accompanied by a small fee payable directly to Companies House.

This procedure is quick and inexpensive but may not be the right option, particularly if the company in question has outstanding liabilities to third party creditors.

Any application to strike off must be given to all creditors of the company and will also be advertised in the London Gazette. As a result, any creditor could object to the striking off process.

If the company has valuable assets, striking off is not advisable either as any assets will vest in the Crown bona vacantia following the dissolution. Striking off will not, therefore, benefit shareholders where assets remain within the company or creditors if the company has significant liabilities.

If the company has a combination of both assets and liabilities, the more appropriate route is likely to be a formal insolvency process led by an insolvency practitioner as liquidator.

There are two alternative routes for a voluntary liquidation process. Both are initiated by the directors of the company (as opposed to compulsory liquidation, which is commenced with a winding up petition).

Members’ voluntary liquidation (MVL)

A members’ voluntary liquidation (MVL) is a “solvent liquidation”. It can only take place if the directors of the company are able to swear a statutory declaration of solvency whereby they must confirm that all liabilities of the company (including employee claims, debts to suppliers, HMRC, or joint venture partners), together with interest if applicable, will be paid off within 12 months of the declaration of solvency.

An MVL may help simplify corporate structures or have the advantage of allowing a tax efficient distribution of assets as part of a reorganisation process. Once any creditors’ claims have been settled, any surplus in terms of assets can be distributed by the liquidator to the university or individual shareholders and at the end of the liquidation process, the company will be dissolved.

Directors must exercise caution when swearing a declaration of solvency as making a false declaration can lead to criminal proceedings against the director(s).

Creditors’ voluntary liquidation (CVL)

If the directors are aware the company is not able to pay its liabilities from the realisation of its available assets, it is effectively insolvent and the process to place the company into creditors’ voluntary liquidation should be followed.

This is a procedure where the company’s creditors have an active involvement, including the choice of the liquidator and participation in decisions regarding the liquidator’s remuneration and strategy.

How can we help?

We are able to advise you on the most appropriate route in any restructuring exercise and can provide you with the relevant legal advice covering real estate, corporate and taxation issues that frequently arise.

We work regularly with the leading insolvency practitioners with expertise in the sector and can assist you in making the right choice of the most suitable liquidator, dovetailing with them to ensure any corporate reorganisation is ultimately successful.

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The value of universities to the economy

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Universities and the economy

From real estate to recruitment and further education, universities have a long history of providing value to regional economies. However, with Covid-19 presenting new challenges, universities must adapt and evolve their operations to ensure they maintain their value.

A key part of the economy

Universities remain massive drivers for their immediate regional economies, with the impact that they have going well beyond education. For example, student housing facilities offer a considerable boost to the real estate market, potentially bringing more property and construction-related jobs to the area.

Students also help to support the local retail and leisure sector, which largely relies on them to fill recruitment gaps in roles such as waiting and bar work. In turn, this has a domino effect on attracting new businesses to the region.

The impact of the pandemic

Although universities will continue to play key roles in the regions they’re based in, they will face some immediate challenges following the Covid-19 pandemic.

One of the effects of the pandemic has been greater consideration by 18- and 21-year-olds around what they choose to do with their lives. There’s been an increased demand for masters’ degrees, for example. As well as this, students receiving teacher assessed grades at A Level has meant plenty of students attending their first-choice institution, which brings its own pressures on universities.

Beyond the immediate 2021/22 intake, universities will also be facing the issue of increasing numbers of applicants, particularly from countries such as China, which is expected to outstrip the EU in a matter of years. This could potentially result in the number of spaces needing to be increased to combat overcapacity.

On a more qualitative level, the pandemic has raised a number of questions around the daily operation of higher education institutions and the overall student experience. Universities are acutely conscious of the disruption students have had to endure over the last 18 months. They know that the support students receive, and the quality of the experience is key.

What needs to change

As we begin to move towards a new normal, universities will be required to evolve their operations.

Universities are grappling with the conundrum of addressing a more blended learning experience, which combines online lectures and face to face tutorials, against many students saying that they’d prefer to continue with in-person learning. This is a tricky problem to navigate. What it does emphasise, is the need to ensure that estates and teaching accommodation is as flexible as possible.

We are facing a paradigm shift in how the UK uses its real estate. Universities remain a key sector for the UK economy and they have an important role to play in building the future. Despite challenges, investment and development is still a focus for many universities. Although teaching methods and operations are changing and adapting to the latest challenges, the sector remains a good place in which to do business.

Get in touch with our  real estate or education teams to find out how they can help.

 

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Clive has been advising universities and colleges on the management and development of their campuses for 30 years.

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OfS Consultation: Regulating quality and standards – how far is too far?

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OfS consultation

The current OfS consultation on quality and standards ends on 27 September 2021 and is a good example of how, irrespective of any bureaucracy-busting regulatory bonfires that may be going on in other sectors, higher education is seeing regulation expand further and farther into its core activities than it has ever done.  

In fairness to the OfS, the consultation contains reassuring statements about its intention to regulate in a risk-based way, but if recent history has taught anything it is that once a regulatory framework is established, it can influence and intervene in circumstances and ways that could not necessarily be predicted.  

Few would seek to argue (and this blog most certainly does not) that demonstrably high quality and standards in higher education are unimportant, or that regulatory oversight does not have a vital role in ensuring there is public confidence in this area.

Much of the substance of the new conditions of registration is uncontentious: of course programmes of study should be robust and challenging, rigorously assessed, well-resourced and of value.  There are, however, three areas that cause concern: 

  • Who makes the judgments? 
  • What might be the impact be on innovation? 
  • Are there other potential unintended consequences? 

Who makes the judgments?

The new conditions include matters of expert academic judgment. For example, the accompanying guidance indicates that one of the circumstances in which the OfS might intervene is where “The subject matter of a course is not representative of current thinking and practices. For example, course content, including topics and reading lists, that is not informed by research and scholarship, or does not reflect professional developments, such as the adoption of the latest professional or industry standards, would be likely to be of concern.” 

In reaching its decisions on matters such as this, the OfS says that it expects to “draw on expert academic judgment”. Elsewhere it says that it “may” ask the designated quality body or another appropriate body to investigate concerns or may do so itself. These are hardly robust guarantees. “Drawing on” expertise does not mean following it.

Additionally, experts don’t always agree especially in academic matters: this is in part why the courts have always declined to adjudicate matters of pure academic judgment. And (except in relation to standards, where it is statutorily obliged to do so)  the OfS does not commit to utilising existing, well-established expertise and processes in assessing quality in higher education through the designated quality body, but only that it ‘might’.  So, overall, there is a lack of clarity both as to who makes the judgments and how those judgments are arrived at. 

It is no answer to this to say that the OfS will only act in clear cut cases, as the current quality and standards conditions would surely equally enable it to act in such cases (if not, it calls into question how it has decided to accept or reject applications for registration to date.).

The new conditions therefore inevitably broaden and deepen the potential for regulatory intervention in questions that have until now been the preserve of academic debate and deliberation. 

What might be the impact on innovation?

One of the driving forces behind the Higher Education and Research Act was the belief that the regulation of higher education should not make it unnecessarily difficult for new and innovative providers and provision to enter the market. The new quality conditions will apply to all higher education, including new providers, new provision, micro-credentials and partnership delivery, whether in the UK or transnational. 

It will be important that the requirements are applied proportionately, to prevent a situation where providers are deterred from innovation because of concern that all of the requirements cannot immediately be met. An example might be a course that is taught with extensive practitioner input to align with the needs of a particular industry. Could this be said to have an over-reliance on visiting staff, which is given as an example of non-compliance? If the OfS was willing to engage with providers to discuss whether such new delivery was likely to comply, that would be one thing. But it is very fond of the mantra that it is for providers to decide how to comply with the regulatory framework, not for it to tell them how to. This may lead some providers to decide that innovation is simply too risky. 

A possible solution is for the OfS to consider the “sandbox” approach adopted by other regulators to support innovation. This includes temporarily offering bespoke support and advice, comfort around regulatory enforcement and relaxation of certain regulatory requirements to allow new products and services to be trialled. 

Are there other unintended consequences of the new approach?

As stated above, the new conditions involve matters of academic judgment, and may in due course involve matters of contested academic judgment. Say an institution disagrees with the OfS about whether a course, for example, provides sufficient educational challenge or is assessed “reliably”.  Will the courts relent in their long-standing unwillingness to adjudicate on pure academic judgment and make a ruling? If so, will that open up challenges to academic judgment in other areas, such claims and complaints by students to their marks and degree classifications? 

Given that the culture wars show no sign of ending, it is worth remembering this section of the then Education Secretary’s statement of priorities to the OfS in February 2021: “All students deserve the opportunity to receive a rigourous and high-quality education. While providers are rightly free to determine the content of their courses, university administrators and heads of faculty should not, whether for ideological reasons or to conform to the perceived desires of students, pressure or force teaching staff to drop authors or text that add rigour and stretch to a course. The OfS should robustly challenge providers that have implemented such policies and clearly support individual academics whose academic freedom has been diminished.” 

It does not take psychic abilities to foresee articles bemoaning that “woke” students and academics have forced institutions to  adopt more authors of colour on  reading lists, or to revisit the prevailing analysis of Empire, and presenting the changes as reducing rigour and stretch. Is there therefore a risk that the quality and standards conditions become yet another proxy war for a wider ideological struggle? 

Finally, some of the proposed amendments to the Higher Education (Freedom of Speech) Bill propose extending the definition of academic freedom to include the freedom to decide what to teach and how, without institutional interference.  If adopted, it is difficult to see how the OfS could reconcile its new proposed approach to quality and standards with the proposed new duty to protect the academic freedom of staff.  

In conclusion

The quality and standards of UK higher education clearly matter and are regarded as amongst the best in the world. Any further regulation in this area needs to ensure that institutions remain free to drive high quality and innovation, through the expertise of their talented staff and the longstanding processes for internal and external quality assurance that underpin the UK’s global reputation in this area. The new conditions need to be implemented in a way that avoids the risk of throwing the baby out with the bathwater and creating a host of unintended consequences.  

For further information please contact Smita Jamdar, head of education.  

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Smita leads the team that works to shape the universities and colleges of the future by providing strategic advice and sector specific insight across all their legal needs.

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Heavyweight education lawyer receives second doctorate

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Smita Jamdar receives doctorate

Education legal expert Smita Jamdar has received an honorary doctorate from the University of Lincoln, as Doctor of Laws, in recognition of her work in shaping universities for the future and insight across all legal needs.

Based in Birmingham, Smita is partner and head of education and full service law firm Shakespeare Martineau and is considered as a leading figure in higher education. The accolade is her second doctorate having received one in 2018 from Warwick University.

Smita said: "I am honoured and privileged to receive an honorary doctorate from the University of Lincoln. Through my participation in the University's 21st Century Lab project I saw first-hand the insight and innovation that pervades the University's work, and, with my Civic University Commissioner hat on, I am so impressed by its commitment to its communities and region. I am very proud to be associated with an institution that makes such a positive difference through its work."

Joined by students of law, Smita attended a graduation ceremony at the Lincoln Cathedral.

Vice Chancellor Professor Mary Stuart, said: "I have had the pleasure of working with Smita, and know how much she is a recognised leader in our higher education world and the higher education policy field where she has helped to innovate and develop to deliver the best outcomes for students and other stakeholders.

“Graduation is the highlight of the academic year and it will be an honour to welcome our distinguished guests, who have all made outstanding contributions to society and their respective fields.”

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The Higher Education (Freedom of Speech) Bill

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This post examines the Higher Education (Freedom of Speech) Bill. It explains what the Bill is and the implications for universities, drawing on expert comments from Smita Jamdar who provided evidence at the panel in September 2021.

What is the Higher Education (Freedom of Speech) Bill?

The Higher Education (Freedom of Speech) Bill is a proposed Act of the Parliament of the United Kingdom. The historic Bill will bring new measures that will require universities and, for the first time, student unions to promote and protect freedom of speech for students, academics and visiting speakers.

As a result, academic institutes may face sanctions, including fines, if they are found to have unlawfully stifled educational freedom of speech. According to universities minister Michelle Donelan, the Higher Education Bill is designed to 'tackle the growing chilling effect on campuses which is silencing and censoring students, academics and visiting speakers'.

Our thoughts on the Higher Education (Freedom of Speech) Bill

The Higher Education (Freedom of Speech) Bill was discussed at the Public Bill Committee this week, with Smita Jamdar – partner and head of education at Shakespeare Martineau – providing evidence to the panel.  

Commenting on the Bill, Smita said: “Over the years I have advised on a number of cases relating to free speech and in every case without fail the university has wanted to support the right to lawful free speech. There has either been a) a concern that the speech in question was not lawful; and/or b) a complaint by staff or students that the university had a duty to consider and then act accordingly.  

“The characterisation of universities one sees as not being interested in promoting free speech or giving in too readily to attempts to suppress lawful free speech is not one I recognise from my experience. But there are undoubtedly competing interests to balance and difficult judgments to make. 

“I don’t see anything in the Bill that will change that position for universities. 

“The Office for Students (OfS) is to be given the power to enforce the duty in two ways. Firstly as a new condition of registration, the breach of which can be enforced through substantial fines, suspension from the register or deregistration. Secondly, through a new free speech complaints scheme under which it can recommend remedies for breach.  

“My concern with both is that the duty applies to freedom of speech that is within the law. If there is a dispute whether speech is or isn’t ‘within the law’ how can a body like the OfS judge that? That is and should be a matter for the courts. Interestingly, in the US, when the Trump administration proposed withholding funding from institutions that did not protect the constitutional right to free speech, it ultimately concluded that there would need to be a court decision that the constitutional right had been infringed before a regulatory or funding body could impose a penalty. That I think should be the case here. Cases that aren’t about the lawfulness of the contested speech could be dealt with by the OfS.  

“The duties of the new Director of Freedom of Speech and Academic Freedom are such that he or she will need to have very specific skills, expertise and be able to demonstrate impartiality to command respect from all sides. At the moment it will be an appointment of the secretary of state. There should be more safeguards around the appointment process.  

“The current provisions relating to the statutory tort are potentially problematic. There is no harm threshold and so claims could be brought on the basis of trivial and inconsequential alleged breaches. It seems as if anyone can bring a claim irrespective of whether they are directly affected by the alleged breach, which could make universities and students unions a target for lobbying groups and groups wishing to pursue particular agendas rather than genuine free speech issues.  

“Currently there is nothing in the Higher Education Bill that will prevent claimants issuing a complaint directly to the courts, with no requirement to exhaust internal complaints processes. I would recommend that this is amended as it could rapidly become time consuming and expensive and inevitably divert resources and leadership focus from other university activities such as teaching, learning and research. The impact on students unions could be particularly profound and given their sometimes precarious financial situations could make them extremely risk averse and paradoxically reduce the opportunities for speakers and events.  

“The Bill defines free speech as the freedom to express views without ‘adverse consequences’, and this is both practically and philosophically absurd to try to enforce by legislation. We cannot legislate human nature, so while universities can facilitate free speech, they cannot and should not police people’s reactions to it, except to the extent that those reactions breach expected standards of conduct.  

“The university could therefore, facilitate someone’s right to speak who could then complain that they had faced people being rude to them, shunning them, publicly criticising them or writing open letters demanding that they are excluded from some opportunity or benefit. Protest, robust criticism, calls to cancel contracts or terminate appointments will, and indeed must be allowed to, continue, as these are the exercise of the rights to freedom of speech and expression of those engaging in them. Harassment and threatened or actual violence are not, and that is where universities can and already do intervene. 

“I think all they can do is ensure they facilitate the right to speak and to act where anything is done that constitutes a breach of its disciplinary codes. They cannot be responsible for as abstract a concept as ‘adverse consequences’.” 

Smita has been advising universities for more than 25 years, acting for more than 50 institutions across the UK.  

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Personal data can now flow freely from the EU to the UK

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How the change in personal data flow impacts education institutions

In June of this year, the EU adopted two adequacy decisions confirming that personal data can now flow freely from the EU to the UK.

These decisions are hugely important for education institutions and will no doubt come as a relief to many who will have been taking measures such as putting in place standard contractual clauses as the end of the post-Brexit extension loomed.

 

What were the adequacy decisions?

The adequacy decisions from the European Commission, which have been a long time coming, confirm that the UK is considered to have laws equivalent to those that safeguard personal data inside the European Union as well as those countries in the European Economic Area.

Since Brexit there has been a bridging mechanism that gave the European Commission another six months (until 30 June 2021) to put in place a decision, so it really did come at the eleventh hour!

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This stimulating and highly practical discussion will look at what institutions need to consider when managing change in an Education sector environment.

How will they affect education institutions?

These decisions will help education institutions that have campuses which span the UK and the EU, particularly if this is achieved by collaborations with other institutions. There will be less GDPR paperwork to fill in, as student data (and other personal data) will be able to pass freely, as it did when the UK was a member of the EU.

In a note of caution however, the European Parliament, the Member States and the European Data Protection Board expressed concerns about the possibility of future divergence from EU standards in the UK's privacy framework. In order to provide strong safeguards against dilution of privacy rights, which are considered fundamental to EU citizens, these adequacy decisions contain a 'sunset' clause. For the first time this limits the duration of adequacy to four years (previous decisions have been perpetual).

As such, and while we can all breathe a sigh of relief for a moment, education institutions will need to be mindful of the sunset clause and the potential for the UK to be without any adequacy decision in four years' time.

Consideration should be given to relationships and contracts that will go beyond this period. This is imperative to ensure that continued compliance with relevant data protection legislation and contractual provisions is possible at that time if no subsequent adequacy decision is granted.

For expert advice and support on GDPR and other commercial law, please contact our commercial team.

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Joanna works exclusively for higher and further education clients and has over 20 years’ experience of advising on a wide variety of student-related issues including policies and procedures, discipline, complaints and appeals, equality and immigration.

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Guides & Advice

Managing change: what the education sector needs to consider

The education sector is constantly evolving, with changes in student demand and teaching methods particularly relevant as we emerge from the COVID pandemic, so having an effective change management process in place is crucial. But what does an education institution, be it school, college or university, need to consider when managing change?

Redundancy and consultation

Occasionally, a redundancy situation may arise, due to reasons such as workplace closure or the need to reduce a workforce because of financial pressure.

If this is the case, an employer is legally obliged to consult its employees beforehand, either individually or collectively or both, subject to the number of employees affected. Details of the type of consultation required may also be listed in the union recognition agreement, which names the union(s) that have the right to represent and negotiate on behalf of employees in that workplace.

Drafting a business case

In the event of a potential redundancy situation arising, an employer will need to provide a business case, which will play an important role in the consultation process with the trade unions. It is a highly useful document that sets out the situation and redundancy proposal and should be drafted as early as possible.

When drafting a business case, it is important to include the following:

  • Explanation of the potential redundancy situation
  • Numbers and descriptions of the employees affected
  • Alternative employment opportunities
  • Impact on other employees
  • Proposed method of selection

Common pitfalls of the document are not including enough information about the situation and what has been done to avoid it, as well as naming employees and treating the redundancy as a foregone conclusion.

Changing terms and conditions

Another element of change to consider is changes to the terms and conditions of employment.

If an employer wishes to make changes to an employee’s contract, they should first consider the contractual position and whether the changes are permitted. In the event a job description or contract is broadly drafted, then an employer may be able to implement change without changing the contract.

Alternatively, the employer may need to seek employee consent, usually via discussions with the trade unions. Failure to reach an agreement could result in the following options:

  • Changes being imposed unilaterally (which is often legally risky)
  • Terminating contracts and re-engaging on new terms

Termination and re-engagement also has the potential to result in the need for union consultation, depending on the union recognition agreement and/or the number of employees affected.

With a highly unionized environment, extra consideration should always be taken when implementing HR change within the education sector. In these uncertain times, it is vital that educational institutions plan HR change carefully to avoid further problems down the line.

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Sexual misconduct and the use of NDAs. Are you ready for the new academic year?

A recent tweet from Michelle Donelan MP, the Minister of State for Universities, has resulted in further communication with HE institutions this month regarding the issue of sexual misconduct and harassment within the HE sector.

"Victims of sexual harassment must be protected and supported. I had written to all higher education providers making clear that the use of NDAs in sexual harassment cases is wholly inappropriate & hiding workplace harassment or withholding details of complaints is unacceptable."

The letter, although reasonably wide ranging, serves as a reminder of the attention the Government is giving to the use of Non-Disclosure Agreements (NDAs) in particular. This renewed focus is viewed partly as being in response to the continuing allegations that have been raised on the Everyone’s Invited website, a website dedicated to highlighting instances of sexual abuse and misconduct across schools, colleges and HE institutions.

What is an NDA and how are NDAs used?

An NDA is a contract through which parties agree not to disclose information covered by the agreement, and were a controversial topic during the #Metoo movement, where NDAs were criticised as essentially being used to silence victims of sexual misconduct and harassment. An NDA can be a stand alone contract, or more commonly NDA clauses can be included in wider agreements, often covering settlements of threatened or actual litigation, for example settlement agreements terminating the employment of employees.

What does the government intend to do?

In response to this criticism, which included coverage about the use of NDAs by HE institutions, the government consulted about the misuse of confidentiality provisions in 2019, and announced it would legislate so that:

  • disclosures could still be made to the police, health professionals and lawyers;
  • the limitations of non-disclosure provisions were clearly identified in settlement agreements and employment contracts;
  • independent legal advice received by individuals signing workplace non-disclosure agreements was enhanced; and finally
  • the government also intends introduce enforcement measures for workplace non-disclosure agreements that do not comply with legal requirements.

The draft legislation is yet to be brought forward, and the minister highlighted in her letter that she was seeking to “explore options for going further in this area, to ensure that HE providers have robust mechanisms for reporting incidents of harassment”.

What should HR institutions be doing?

HE institutions must continue to be vigilant in tackling sexual misconduct and harassment, updating their systems, policies and procedures that deal with these issues ideally before the beginning of the next academic year – just eight short weeks away.  Confidentiality provisions will remain a feature of most settlement agreements for exiting employees but the parameters of these post employment restrictions should be carefully considered on a case by case basis (particularly where the restriction relates to any allegations of sexual misconduct).

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If you would like further information or advice please contact Tom Long, head of further education, or another member of our specialist education team.

Our education team is ranked as a Top Tier Firm in the Legal 500 2021 edition.

Our updated guide to recovery and resilience covers everything you need to navigate your way out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND.

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Our Latest Thoughts

All the latest views and insights on current topics.

New legislation

Skills and Post-16 Education Bill introduced to Parliament

The long awaited Skills and Post-16 Education Bill was introduced to Parliament on 18 May, putting in legislative form the proposals brought forward by the government in the skills for jobs white paper published in January of this year.

The Bill includes a number of important changes to the further education (FE) sector, and will involve greater powers being allocated to the Secretary of State for Education.

What are the key changes?

In the government’s own words, the key changes are:

  • Embedding employers in the heart of the skills system, by making it a legal requirement that employers and colleges collaborate to develop skills plans so that the training on offer meets the need of local areas, and so people no longer have to leave their home-towns to find great jobs;
  • Supporting the transformation of the current student loans system which will give every adult access to a flexible loan for higher-level education and training at university or college, useable at any point in their lives; and
  • Introducing new powers to intervene when colleges are failing to deliver good outcomes for the communities they serve, and to direct structural change where needed to ensure colleges improve.
How the Bill seeks to achieve the key changes

The Bill, if enacted, will require the development of local skills improvement plans and places an obligation on college governing bodies to regularly review provision in relation to local skills need.

At this stage there is a lack of information in the Bill about how the “lifelong loan entitlement”, trumpeted in the white paper, and intended to make student loan finance available for an equivalent of four years’ study throughout life across post-compulsory further and higher education, will work. The government has promised more information on this as the Bill progresses through Parliament.

The structural changes referred to will potentially include forced mergers, which if actually used, will demonstrate a far greater willingness on the part of the government to intervene in the sector.

A number of sector leaders have cautiously welcomed the plans, albeit with some degree of alarm raised by what many see as a centralisation of powers in the hands of the Department for Education and with the Secretary of State.

Renewed importance of the further education sector

At the very least, the plans and the surrounding messaging from the government, are a further illustration of the renewed importance being placed on the FE sector post Brexit.

This is surely a welcome sign, and the Chief Executive of the Association of Colleges, David Hughes, has said that: “[The] legislation is confirmation that colleges will be central to the country’s economic recovery. For too long the snobbery towards further education has meant it’s been neglected and the Skills and Post 16 Education Bill is a chance to put that right.”

The changes also represent a pivot away from a focus on the higher education (HE) sector, with the government being at pains to emphasise the importance of FE in helping the country to recover from the economic impact of Covid-19, as well as speaking to the government’s much talked about “levelling up” agenda.

We’re here to help

We will continue to analyse the Bill, and monitor for details yet to emerge, as it progresses through Parliament.

If you would like further information or advice please contact Tom Long, head of further education, or another member of our specialist education team.

Our education team is ranked as a Top Tier Firm in the Legal 500 2021 edition. 

Our updated guide to recovery and resilience covers everything you need to navigate your way out of lockdown, unlock your potential and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.   

From inspirational SHMA Talks to informative webinars, we also have lots of educational and entertaining content for life and business. Visit SHMA® ON DEMAND

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