28th November 1997 at 00:00
Joan Sallis answers your questions.

Q Please clarify a point about local authority rights in the appointment of a head in a county school. Following such an appointment in our school, the LEA is threatening to ask the Secretary of State to intervene by ruling (under Section 496 of the 1996 Education Act, I believe) that the governors have behaved unreasonably in the exercise of their powers and therefore should have those powers withdrawn. Yet officers have given no solid reasons for disagreeing with the governors' majority view either now or during the process itself. As far as I can gather they are not saying that the candidate is unsuitable but that it was not the best choice.

A I think your local authority is on the wrong track, whatever the rights and wrongs of the appointment. The 1996 Act did not introduce hitherto unknown means of bringing governors under control but was simply a consolidation of all previous legislation. The section you refer to was in fact a restatement of the old Section 68 of the 1944 Act, a catch-all appeal procedure whereby anyone could claim that a statutory body had behaved unreasonably in the exercise of its powers. In fact appeals under that section have only been upheld in a very small number of cases since 1944, and case-law indicates that the Secretary of State would intervene in local matters only if the actions taken were so outrageous that no reasonable person could countenance them.

Appeal under this section is most unlikely to be appropriate in the light of the much more recent provisions introduced in 1988, and repeated in Schedule 14 to the 1996 Act and Section 117 of that Act. (The former covers the appointment of a head and the latter the suspension of a governing body's powers.) The Schedule makes it clear that, while the director of education or hisher representative may advise the governors, it is the governors' responsibility to choose, and indeed the Schedule says "the LEA shall appoint the person recommended or accepted for appointment by the governing body".

Section 117 deals with the suspension of a governing body's powers under the scheme of delegation, which can only be on the grounds that they "have been guilty of a substantial or persistent failure to comply with" its requirements or "are not managing the sum put at their disposal in a satisfactory manner". I think that these two quotations taken together indicate that your local authority does not have a hope of the outcome it wants.

I should add that there is a procedure for the authority as employer to operate a formal last check on the chosen candidate before contracts are signed, but this is to establish that he or she has the qualifications claimed for the post and that there is no medical or police history which need concern the employer. There is no suggestion in your letter that any of these considerations lies behind the authority's stance, and therefore the governors' decision is not under threat. The sad thing is that the very whisper of such a confrontation can destabilise a school in a time of transition.

Finally, the recent White Paper, Excellence in Schools, and the Framework document amplifying it make it clear that the Government has no intention of removing governors' responsibility for appointing headteachers.

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