Schools Group Bulletin

Transcription

1 Page 1 Schools Group Bulletin David Smellie November 2009 The Vetting and Barring Scheme As you will know from our electronic briefing on 14 October 2009, further changes under the Scheme were introduced on 12 October A more detailed note on the Scheme and the timetable for its implementation can be found on our website here. Education (Independent Educational Provision in England) (Unsuitable Persons) Regulations 2009 These regulations, connected with the new Vetting and Barring Scheme, also came into force on 12 October They give the Secretary of State power to remove a school from the register of independent schools if a person who is unsuitable for work with children is either the proprietor of an independent school or else is regularly carrying out work in which he or she has the opportunity to have contact with children or vulnerable adults. The regulations define unsuitability for work with children by reference to a number of legal orders and directions. Broadly speaking, a person will be unsuitable for work with children if they are named on one of the barred lists or have been disqualified or prohibited from teaching, managing schools or working with children. You can read the regulations and the accompanying explanatory note online here. Education (Independent Educational Provision in England) (Inspection Fees) Regulations 2009 These Regulations, which came into force on 1 September 2009, amended the fee regime for independent school inspections. The fees have not been increased. They introduce an annual inspection fee, to replace the option introduced in 2008 of paying in instalments a single fee covering a number of years. As before, the fee level will depend primarily on school size. Time of payment will no longer be linked to the date of inspection; rather, schools will be invoiced by the Chief Inspector. The Regulations also create a new fee for a first follow-up inspection to check that reported shortcomings have been dealt with. The fee for this inspection will be two thirds of the annual fee. The fee for any necessary further follow-up inspection will be 1.5 times the annual fee. Schools which made inspection payments under the previous regime will have those payments credited to them under the new scheme. The Regulations and an explanatory note can be found here. Ellis and another -v- Merchant Taylors School This case, heard in the Court of Appeal, was brought by the parents of a child who had been expelled from the school The headmaster s decision to expel the child had been confirmed by a review panel whose members included the headmaster of another independent school. The child s parents claimed that the review panel was biased, because the headmaster of Merchant Taylors school knew the other headmaster on the review panel. The Court of Appeal dismissed the appeal, saying that the relationship between the school s headmaster and the headmaster on the review panel could not cause a fair-minded observer to think that there was any real possibility of bias. The number of independent school headmasters is relatively small, so the two were likely to encounter one another on a professional basis. Although the two headmasters also attended the same church, there was no evidence that they socialised together.

2 Page 2 Ideally, there should be no connection between a person who makes an expulsion decision and anyone with a duty to review that decision independently. However, this decision confirms that the Courts prefer a common sense approach in determining whether any connection taints the reviewer s impartiality. X Endowed Primary School Governors -v- Special Educational Needs and Disability Tribunal This was a case of a child with ADHD who was excluded from a school after hurting a teacher. The child s parents appealed and the Tribunal found that he had been discriminated against. The school appealed, arguing that the reason for the expulsion was violent behaviour, which is not protected under disability discrimination law. It followed from this that the expulsion could not be within the scope of discrimination law; since the Tribunal s decision was based on the expulsion, that decision was flawed. The Tribunal put forward two arguments: 1. although stand-alone violence is not protected, violence which is a symptom of an underlying disability is. Since the child s violence in this case was symptomatic of his ADHD, it was protected by discrimination law; 2. even if the violence was not protected, the Tribunal s decision was not based solely on the expulsion. The Court held that it is irrelevant whether violence is stand alone or symptomatic of an underlying disability it is not protected. However, the Tribunal s decision was not based solely on the expulsion. In the Court s view, the school had failed to make reasonable adjustments to accommodate the child s disability, so it had breached discrimination law. Dianne Willmore -v- Knowsley Metropolitan Borough Council In the 1970s, Mrs Willmore was a pupil at a secondary school under the Council s control. In 2007, she was diagnosed with mesothelioma. Following diagnosis, she discovered that asbestos was prevalent in her old school building. She sued the Council, alleging that, while at school, she had been exposed to asbestos dust from damaged ceiling tiles. For instance, when works were being carried out in the school, damaged ceiling tiles were stored in the toilets. Also, pupils at the school sometimes removed ceiling tiles to store their belongings in the ceiling cavity. The Council accepted that it should have known that anything more than minimal exposure to asbestos would be dangerous, but argued that Mrs Willmore needed to show that her exposure to asbestos materially contributed to the risk of her contracting mesothelioma. The Court found that it was more likely than not that the ceiling tiles contained asbestos and that Mrs Willmore s exposure did materially contribute to the risk of her contracting mesothelioma. The Council was liable, and was ordered to pay 240,000 compensation. Some old school buildings may contain asbestos. This case indicates how important it is for schools to ensure that, if asbestos-containing materials are damaged or moved, they are replaced. Also noteworthy is the Court s view that the school would have known that pupils were removing ceiling tiles and so should have taken steps to replace the tiles with a safe material. Langley Park School for Girls -v- Bromley London Borough Council Langley Park School for Girls ( the Girls School ) successfully challenged the Council s decision to grant planning permission to Langley Park School for Boys ( the Boys School ) to build a new school. The Girls School and Boys School occupied neighbouring sites, both of which were on land designated as Metropolitan Open Land ( MOL ). In Greater London MOL serves the same purpose as Green Belt and is protected in a similar fashion. The essence of the policy on MOL is that permission will not be given for inappropriate development unless justified by very special circumstances. The policy also states that the openness and visual amenity of the MOL should not be injured by any proposed development which could be visually detrimental by reason of its scale, siting, materials or design.

3 Page 3 Before submitting the planning application, the Boys School undertook a feasibility study to consider where the new school would be best located. Fatally, the feasibility study did not assess the impact on the openness and visual amenity of the MOL. The Boys School submitted a planning application which was a hybrid of two of the options put forward in the study. The analysis of the Court of Appeal The Council s Chief Planner wrote a report on the application, to assist the planning committee that was considering the application. The Court of Appeal branded that report as woefully inadequate and quashed the grant of planning permission by the Council. Members of the planning committee had granted planning permission on the basis that the school was an inappropriate development in MOL, but that the very special circumstances (namely the educational benefits for children and young people in the Borough) justified inappropriate development. The Girls School objected strongly to the proposed planning application, contending that option 1 in the feasibility study would result in less harm to the openness and visual amenity of the MOL. The Court of Appeal criticised the Chief Planner s report for failing to offer a firm view on the extent to which the openness and visual amenity of the MOL would be injured by the proposed school. The report commented only that this issue should be carefully considered in terms of its impact on the openness of MOL. The Court considered that the planning committee did not have sufficient information in the report to be able to reach an informed conclusion on which proposal would cause the least harm to the MOL. The fact that the Girls School objected to the proposed development highlighted the need to consider whether the harm to the openness and visual amenity of the MOL could be reduced by locating the school elsewhere. The planning committee was advised not to consider alternative locations, on the grounds that the application should be considered on its own merits and the application did not mention alternative locations. This advice was incorrect. The report was also criticised for focusing on minimising disruption to the school during the construction of the new building. The Court s view was that, in determining a planning application, the Council must acting as a local planning authority, not a local educational authority. The local planning authority s priority was to ensure that injury to the openness and visual amenity of the MOL was minimised. Summary This case illustrates the importance of considering development your school s area and objecting where appropriate. For schools thinking about development, it is essential to obtain sound development advice and scrutinise reports thoroughly. In this case, the feasibility study was heavily criticised by the Court. Schools should also make their planning applications judge proof by avoiding common errors such as failing to consider matters appropriate to the planning application (in this case the relative impact of the different locations on the MOL). How can schools control their grounds? Any owner of a large area of land will be keen to ensure that neighbours and others do not gain unauthorised rights and interests over it. This could be a particular problem for schools, with large areas of land located away from the school buildings which are difficult to monitor. Once third party rights in land have been acquired, they can cause serious difficulties in developing the property or controlling the way in which the land is used. This article considers some of the ways in which schools can protect their land, but the most effective solution will depend on the circumstances and you should seek professional advice before taking action. Private Rights of Way by Prescription An owner of neighbouring land can acquire a permanent right of way by prescription, after 20 years continuous use. The primary requirement is that the use must arise as of right, which means it must be without force, secrecy or permission. To prevent this from happening, schools can use notices stating that there is no right of way, or close school gates to discourage entry, either at all times (if circumstances allow) or perhaps for a day or a week in each year. Fences or barriers might also work, putting neighbours off entering the land or obliging them to use force to access it. However,

4 Page 4 be careful to ensure that these signs and fences are maintained and are effective ideally for at least a year because if people continue to use a pathway across your land, the 20-year period may continue to run. Oddly, giving express permission will actually stop a right of way arising because it will not be as of right. Getting a neighbour to sign a one-page licence letter will stop the right becoming permanent and allow it to be revoked at any time. It also allows a landowner to impose conditions on the use of the land, such as the times and methods of use. In some circumstances, putting up a sign giving temporary permission may in itself be sufficient, but it is safer to get the neighbour to acknowledge their licence. Public Rights of Way by Deemed Dedication The public in general can acquire a right of way over land, allowing it to be dedicated as a highway, again if they have used it as of right for an uninterrupted period of (usually) 20 years. A landowner can defeat this dedication if they prove that they had no intention of allowing such public use. The landowner can successfully interrupt the 20-year period by actively turning people away from the property, putting up signs stating that there is no public right of way and placing obstacles or barriers to entry. Such signs and barriers should be permanent and maintained rather than temporary, and should not offer an alternative route. However, the only foolproof way of preventing a public right of way arising is by contacting the local Council using a statutory procedure under the Highways Act The landowner provides a statement to the Council, enclosing a map to identify any existing paths on the land. This is then followed up with a statutory declaration that no paths or highways are intended. An additional statutory declaration in the same form must be lodged every ten years for this to be effective. Cumbersome as this may be, it is the only fail-safe method of preventing a public highway. Town and Village Green Rights In certain circumstances, local inhabitants may apply to the local authority to designate the school s land as a town or village green, if a significant number of the locals have used an area of land for sports and pastimes for at least 20 years. Again, the use needs to arise as of right. After a successful application by a member of the public to register the land as a town or village green, it is an offence to interrupt the recreational use of the land by building on it. Again, keep out signs and fences may be effective in preventing recreational use, although care should be taken to maintain them. Alternatively, using signs to give temporary permission may also be successful here. However, a more effective method is likely to be for schools to make active use of their land, for example for school sports or allotments, since locals may feel less aggrieved by their lack of access to the land. Adverse Possession A person who is not the legal owner of a piece of land can become the legal owner by possessing the land for a specified period of time. This often arises in boundary disputes or when tenants have overstayed their welcome. A person must prove that they are in actual possession of the land and that they have had the intention to possess it for the required period. For unregistered land, the period is 12 years; for registered land it is 10 years. It is more difficult for a squatter to succeed in an adverse possession claim if the land is registered. As a result of this, the most effective way to prevent a claim is to register the land. The Land Registry will give notice to the registered proprietor if an application for title is made based on adverse possession. In most circumstances, this allows the landowner 65 working days in which to veto the application. Short of registration, giving a person written permission will also defeat any claim and allow the landowner to retain control over the way in which the land is used. Permission can be given temporarily, after which the landowner can propose to charge for occupation of the land. If the squatter enters into negotiation about the level of the charge, they might even be acknowledging the ownership of the landowner, which in itself can defeat adverse possession. Vigilance and Action All this points to the importance of schools knowing and managing their land. Regular surveys and inspections (keeping records as appropriate) will help to identify changes in the use of the land or the positions of fences, or occupants overstaying their welcome.

5 Page 5 If some form of unauthorised use is discovered, schools should take advice and action. Ignoring the issue can often help others establish their legal rights to the land. Once this has happened, it is more likely that complex negotiations or costly procedures, possibly even court action, will be needed. For further information please speak to David Smellie (dcs@farrer.co.uk) or your usual contact at the firm on This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.