DfE Questions Answers (From 4 June 2013)

4th June 2013 at 11:58

Q: Is an LA maintained school permitted to use its delegated budget to give financial grants to parents to help them buy school uniform? Is the position any different for academies and free schools?

DfE answers: Yes, they can. Individual schools and academies often run their own schemes to provide assistance, particularly for supporting new intakes of children entering the school or in the event of substantial changes to the uniform.

Q: Under Section 29 of the Education Act 2002, the governing body of all maintained schools in England are required to have in place a procedure to deal with complaints relating to the school.

(1) Can parents use these procedures to make complaints about the disciplinary sanctions imposed on their child if those sanctions are less serious than formal exclusion?

(2) If a fixed term exclusion is imposed on a pupil can parents use the complaints procedure either instead of or in addition to the procedures in the statutory guidance on pupil exclusion?

(3) Would the answers be any different if the school was an academy or free school?

DfE answers: In handling complaints about exclusion decisions, the headteacher and governing body must comply with the relevant legal requirements on exclusion and have regard to the statutory guidance. These requirements apply to maintained schools and academies, other than 16-19 academies. The requirements set out the process and timescales for considering complaints about fixed period exclusions. There is no expectation that a school should also consider complaints about exclusion decisions through its own complaints process. Where a complaint relates to an exclusion but does not concern the decision itself, such as a complaint about the actions of a member of staff, then it can be raised through the school's complaints process. There is nothing to prevent a governing body from considering wider complaints as part of its consideration of an exclusion decision, so long as the legal requirements are met.

Q: If a headteacher permanently excludes a pupil but the governors pupil discipline committee does not uphold the permanent exclusion and orders the pupil's reinstatement can the headteacher, after the pupil has been reinstated, impose a lesser sanction, such a fixed term exclusion, for the same disciplinary offence that the headteacher had originally permanently excluded for? (Assuming that the pupil has committed no further disciplinary offence since being reinstated).

DfE answers: It would be for the head teacher to decide whether it would be reasonable to apply another sanction in these circumstances, taking account of the reasons why the governing body overturned the permanent exclusion decision. The headteacher is ultimately responsible for classroom behaviour at school, and has a duty to encourage good behaviour and respect for others. Headteachers are expected to comply with the school behaviour policy; however there may be occasions when they judge that a particular sanction is more appropriate than the one specifically set out in the policy. Moreover, there are times where the headteacher may choose to exercise his or her legal power even though it is not included in the school policy.

Q: Are LA maintained schools allowed to pay Overtime to teachers who are subject to School Teacher's Pay and Conditions Document (STPCD) if the school asks the teacher (and the teacher agrees) to work in excess of the 195 days a year a full time teacher must be available for work? I have mind when a teacher agrees to take pupils on a school trip during half term holiday. Overtime payments aren't mentioned in STPCD at all, neither provided for nor forbidden as far as I can see? Or should any additional payments by the school in the example I've given be dealt with under a different part of STPCD?

DfE answers: The STPCD doesn't allow for overtime payments, though the STPCD does allow for additional payments for participation in out of school hours learning activities (see para 40.1(c). So there is flexibility already within the document.

This question concerns The Education (Penalty Notices) (England) Regulations 2007, the statutory guidancedepartmental advice on them contained in `School attendance' [August 2013] and their application to a LA maintained secondary school

Q: LAs are required to issue a Code of Conduct but what should we do if our LA has never issued one?

DfE answers: In the first instance schools should formally complain to their local authority. The Department has written to those local authorities that have not published a Code of Conduct informing them that they should.

Q: If the LA has not issued a Code of Conduct does the headteacher still have the power to issue penalty Notices? Or does the failure of the LA to issue a Code of Conduct in effect prevent a headteacher from issuing Penalty Notices?

DfE answers: Technically yes, but it is unlikely to be enforced by the local authority. It is also likely to be challenged if there is no code setting out the circumstances for issuing penalty notices.

Q: Paragraph 15 (1) of the 2007 Regulations requires an LA to consult governing bodies in the LA on its Code of Conduct. Is this requirement still in force?

DfE answers: Yes.

Q: If the LA issues a Code of Conduct without consulting governing bodies what should governors do?

DfE answers: In the first instance governing bodies should formally complain to their local authority if they are not happy with the criteria set out in the code of conduct for issuing penalty notices.

Q: Once a LA issues its Code of Conduct do headteachers automatically then have the power to issue Penalty Notices (in accordance with the Code) without any further approval by governing bodies? ie, does the governing body of each school in the LA need to give its agreement for the issue of Penalty Notices in their school?

DfE answers: Yes, head teachers can automatically issue penalty notices without further consultation with the governing body. Head teachers are empowered to issue penalty notices and to authorise their deputy and assistant heads to do the same. Head teachers and deputy and assistant heads do not need approval by governing bodies when issuing penalty notice but they must comply with the local code of conduct issued by their LA.

Q: Our LA is proposing to include in its Code of Conduct a requirement that the headteacher cannot issue any Penalty Notice without first consulting with the LA school attendance officer. Does the DfE consider this is an appropriate measure? On the face of it this limits the power given to headteachers under paragraph 10 (1) of the 2007 Regulations.

DfE answers: The Department believes this is an unnecessary bureaucratic layer that is not needed. Once the conditions for issuing a penalty notice are met, the decision to issue then resides with the head teacher.

Q: Under the previous performance management regulations, The Education (School Teacher Performance Management) (England) Regulations 2006, governors were required to appoint a panel of either 2 or 3 governors to act as reviewer of the headteacher on behalf of the governing body.

DfE answers: Those regulations were replaced form 1st September 2012 by The Education (School Teachers' Appraisal) (England) Regulations 2012. The 2012 Regulations make no stipulation about how many governors should be involved in the appraisal.

Q: Can DfE advise if there are now any rules about the number of governors who must be involved in the headteacher's performance review, for example:

(1) Could the governing body delegate the review to a single governor?

(2) Could governors decide that the whole governing body will be the review panel?

DfE answers: The Education (School Teachers' Appraisal) (England) Regulations 2012 give schools and local authorities more freedom to design appraisal policies that suit their own individual circumstances, including in relation to the number of governors who must be involved in the appraisal of the headteacher.

Q: Can DfE clarify whether a governing body of an LA maintained school that is its own admissions authority (eg, a VA school) is now permitted to delegate admissions decisions to an individual governor.

DfE answers: The School Governance (Procedures) (England) Regulations 2003, para 17 (3) said "The governing body may not delegate to an individual any power of the governing body to determine whether any child should be admitted to the school" and so permitted delegation of admissions decisions to a committee of the governing body but not to an individual governor. The February 2012 School Admissions Code para 2.7 also said: "Where the school is its own admission authority the whole governing body, or an admissions committee established by the governing body, must make such decisions". The SAC doesn't cite any specific law or Regulation as the basis for that.

Q: Since 1st September 2013 the powers of the governing body to delegate are in The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 and the 2003 Regulations have been revoked. There is no equivalent in the 2013 Regulations to para 17 (3) of the 2003 Regulations, so the 2013 Regulations themselves no longer prohibit admissions decisions being delegated to an individual governor.

The School Admissions Code has not been changed however. Does paragraph 2.7 of the Code still apply or was it based on the now revoked School Governance (Procedures) (England) Regulations 2003, para 17 (3) and so no longer applicable?

(1) Can governing bodies now (from 1st September 2013) delegate individual admissions decisions to an individual governor?

(2) If not, what is the legal basis of the prohibition on them doing this?

DfE answers:The restriction on the delegation to an individual of the board's duties in relation to admissions is no longer contained within the regulations. This is because the School Admissions Code(1) already contains this restriction, requiring admissions decisions to be taken by the governing body (or a committee appointed by the governing body for that purpose).

(1) www.education.gov.ukschoolsleadershipgovernancea0056865school-governance-regulations

Q: Are pupils leaving a school and going off roll at the Year 11 legally required to tell the school what they are doing afterwards?

DfE answers: A young person leaving school at the end of year 11 is not under a legal obligation to tell the school what post-16 choices they have made but schools may well ask them for this information. Responsibility for promoting the effective participation in education or training of all 16 and 17 year olds, and identifying those not participating, lies with local authorities. They establish the intended destinations of young people nearing the end of Year 11 and track offers made to young people of places in post 16 education and training. Once a young person has left Year 11, local authorities are required to track a young person's participation so that those not participating can be identified and supported to find a suitable place.

Q: Do the governing body or headteacher have a legal obligation to make sure pupils leaving at the end of Year 11 are continuing in education and training?

DfE answers: Under RPA legislation, a governing body or head teacher does not have a legal duty to ensure pupils leaving at the end of Year 11 continue in education and training. The duty to participate is on the young person, whilst responsibility for supporting them to participate lies with local authorities. However, schools do have a duty to provide relevant information about pupils to local authority support services to enable them to meet their responsibilities. Schools also have a duty to secure access to independent and impartial careers guidance for their pupils in years 8-13 in order to support them make well informed and realistic decisions about the range of education and training options available to them.

Q: Can any sanctions or financial penalties be imposed on us if a pupil who leaves us at the end of Year 11 does not go into education or training?

DfE answers: The duty is on young people to participate and local authorities and education and training providers should support them to do so. Providers of education or training for 16 and 17 year olds are under two duties in relation to RPA. They must promote good attendance of 16 and 17 year olds and inform local authority support services if a young person (aged 16 or 17) has dropped out of learning. This is so the young person can be contacted swiftly and offered support to help them re-engage. Sanctions such as withholding funding will not be placed on providers purely on the basis of a year 11 leaver not going into education or training - provided that they have complied with these two duties.

Information on what former pupils do after the end of year 11 is available through the Key Stage 4 Destination Measure. The Measure shows the percentage of pupils continuing their education in school sixth form, sixth form college, further education college or through an apprenticeship. It also shows the percentage going into employment, and those who were not in education, employment or training (NEET). The data enables parents and young people to make informed judgements about the performance of schools in their area.

Q: If we discover by chance that an ex-pupil who should be in education or training isn't do we have a legal obligation to disclose it? Do we have to advise the DfE for example?

DfE answers: RPA legislation requires education and training providers to inform their local authority if a young person has "dropped out" of education and training. Informing local authority support services if you are aware of an ex-pupil who is not in education or training means they can be offered support to find a suitable place.

Q: Do the legal penalties that apply to parents who do not send children in Year 11 and below to school - Penalty Notices, Magistrates Court prosecution for non-attendance - now apply to parents who don't secure participation in education or training by their post-16 children?

DfE answers: The Government has raised the participation age so that all young people in England are now required to continue in education or training but this is not the same as increasing the compulsory school age so the same legal penalties will not apply. Young people have a choice about how they continue in education or training post-16, which could be through: full-time study in a school, college or with a training provider; full-time work or volunteering combined with part-time education or training or an Apprenticeship (www.apprenticeships.org.uk).

Q: Can 16-18 year olds themselves be prosecuted for not taking part in education or training?

DfE answers: The law has changed, but there will be no action taken against any young people who don't participate. We want to encourage young people to participate because of the benefits it will bring - this is the reason why the vast majority of 16 and 17 year-olds already choose to continue in education or training. By changing the law, we have made sure that all young people have the opportunity to access the learning option that's right for them and improve their long-term prospects. However, local authorities are responsible for identifying and supporting 16-17 year olds in their area who are not participating and will be working to ensure that young people are enrolled on a suitable education or training place.

Q: For LA maintained schools current DfE guidance recommends that "the governing body delegates functions relating to staff appointments outside of the leadership group and all dismissals to the head teacher, unless it thinks this would be inappropriate" [DfE guidance on The School Staffing (England) Regulations 2009, "Guidance on managing staff employment in schools", paragraph 2.10.]

The Draft Deregulation Bill proposes (in Schedule 14 paragraphs 4 and 5) that governing bodies will no longer have to have regard to this guidance document and that the guidance document will be removed.

(1) Does this mean that after the Draft Deregulation Bill comes into force the DfE will no longer make any recommendation or give any guidance on whether governing bodies should delegate staffing functions to the headteacher?

(2) Does the DfE have a view on whether it would be good practice for governing bodies to delegate any staffing functions to the headteacher after the Draft Deregulation Bill comes into force?

(3) Does the DfE intend to make any significant changes to The School Staffing (England) Regulations 2009?

DfE answers: Any revisions to the School Staffing Regulations and guidance will involve considering any changes regarding the delegation of staffing functions by the governing body to head teachers.

It is proposed that a detailed review of the School Staffing Regulations will take place during autumn 2013 with the intention that consolidated School Staffing Regulations will come into force in September 2014. The aim of that review will be to simplify the requirements within the regulations in respect of governing bodies' roles and responsibilities in the appointment, suspension and dismissal of staff; and to remove unnecessary prescription - allowing governing bodies more autonomy to manage their processes and procedures.

Current guidance will remain until the Deregulation Bill becomes law and is enacted. In the time between now and then we'll have consulted on better and more targeted advice alongside revised the School Staffing Regulations.

Q: What will the responsibility of governors in LA maintained schools be for behaviour under Schedule 14 of the Draft Deregulation Bill in the light of the statement in the Explanatory Notes that when it comes into force governors "will have no influence over [the] content [of the school's behaviour policy]"?

"Have no influence" is a very broad phrase and appears to mean that governors cannot even be consulted by the headteacher on the behaviour policy (as the act of consulting surely presumes that that the headteacher would be "influenced" by the response?), nor express any opinion to the headteacher on the policy or what constitutes acceptable standards of behaviour, nor give the headteacher any direction on behaviour principles.

DfE answers: We will be consulting on the Deregulation Bill. We'd like to hear as many views as possible on this Bill when we launch the consultation.

Q: The regulations say that a LA-maintained school must provide certain information about a teacher's capability if asked by another LA-maintained school or an academy.

However, it seems that academies aren't covered directly by the regulations so although they are entitled to receive this information from an LA-maintained school they are under no obligation to provide such information if an LA school asks for it. Is that correct?

DfE answers: The update to the funding agreement December 2012 included a clause on teacher capability. This clause requires academy trusts to provide information about any formal consideration of a teacher's capability in the previous two years, if requested to do so by a school or further education establishment at which the teacher has applied for a job.

This obligation is only placed on academies that opened from April 2013 where they used the December 2012 model. It does not apply to existing academies with a funding agreement predating the December 2012 update.

Q: Can you please explain a quandary for me with reference to the new School Governance (Roles, Procedures and Allowances) (England) Regulations 2013?

The previous regulations stated that a clerk must give at least seven clear days notification of a meeting and supply with that notification, the agenda, the minutes from the previous meeting and any associated papers.

The new regulations of 1st September 2013 state:-

Part 4
Convening meetings of the governing body


(4) Subject to paragraph (5), the clerk of the governing body must give written notice of the meeting and a copy of the agenda for the meeting at least seven clear days in advance to -

The requirement to supply minutes and papers within seven clear days has disappeared. Why is that? Does it mean that clerks and chairs will be allowed to dump minutes and papers on the table at the next meeting without any notice whatsoever and be expected to read and approve matters of very important documents in an unacceptably short time frame. And an agenda can be ruthlessly altered on the evening of the meeting.

Could you please clarify exactly what the legislation now is for the timing of minutes and papers for meetings even though the Dfe Governors Handbook of May 2013 States:-

`Clerks should provide written notice for meetings at least seven clear days in advance, together with a copy of the agenda and any reports and papers to be considered at the meeting'.

The word should is of course optional and chairs and clerks will be able to take no notice of it. Therefore what is there to stop clerks and chairs from presentation of just in time minutes and papers?

DfE answers: The original procedures regulations included a requirement that the agenda and papers for meetings of the governing body or its committees be issued at least 7 clear days in advance of the meeting. This ensured that governors received papers in good time for their meetings.

When we consulted on changes to those regulations it was planned to drop the provision in relation to issuing papers 7 days in advance, since there is no equivalent requirement for academies. Responses to the consultation were clear that this provision needed to be retained for meetings of both the full governing body and its committees as it provided an important safeguard against chairs of governors and heads trying to press through last minute measures.

The Explanatory Memorandum we have published alongside the new regulations says we have accepted consultees' concerns and that we have reinstated the 7 day rule for both agendas and papers. However, unfortunately a drafting error has meant that the published regulations only require the agenda (and not the papers) to be circulated 7 days in advance.

A number of our partners including NGA and NCOGS have brought the situation to our attention and we will be laying an amendment to re-instate the provision, hopefully by the end of September.

Q: Governing Body quorum.

Under The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 paragraph 14 (1) "The quorum for a meeting of the governing body and for any vote on any matter at such a meeting, is one half (rounded up to a whole number) of the membership of the governing body".

What is the situation if a governor who is at the meeting has to withdraw temporarily, for a specific item because they have a pecuniary interest in the item under discussion? Do they still count towards the quorum?

Under paragraph 16 (b) a governor with a pecuniary interest "if present at a meeting of the school at which the matter is the subject of consideration, must disclose his or her interest, withdraw from the meeting and not vote on the matter in question", although this only relates to the item in question. But if they've withdrawn from the meeting and are just sitting in the corridor outside waiting to be called back in do they still form part of the quorum for the purposes of paragraph 14 (1)?

The question only has practical significance if the meeting is only just quorate before anyone has to withdraw and the effect of one governor withdrawing under paragraph 16 (b) would be that the number of governors left in the room was less than one half. If the governor who has temporarily withdrawn is still considered present for calculating the quorum then no problem, a decision can be made. But if not the meeting has then become inquorate and no decision can be made.

What is DfE's opinion?

DfE answers: In our opinion, a governor who has withdrawn from a meeting because of a pecuniary interest should not count towards the quorum for the purpose of the matter on which they declared their interest.

Q: In Lord Nash's speech to NGA on 6th July he said:

"Which is why I think governors should think really hard about appointing a chair for, say, no more than 2 terms of office."

Can you clarify how many years Lord Nash meant by "2 terms of office"? In LA maintained schools a governors term of office, as a governor, is usually 4 years, so did Lord Nash mean a Chair shouldn't serve more than 8 years? Or was he referring to the period for which Chairs are normally elected? Governing Bodies have freedom to decide a Chair's term of office as but commonly there are annual elections so two terms of office as Chair would typically be 2 years.

8 years maximum as Chair is a sensible suggestion, but 2 years would be far too short.

DfE answers: The point Lord Nash was making was that a chair shouldn't serve as chair at the same school for too long a period of time - so where the term of office for the chair is four years, then more than two terms would be too long. We accept that where the term of office for the chair is annual, then the reference to no more than two terms office of office doesn't apply.

Q: I understand that the disapplication of the National Curriculum will not apply for core subjects in Y5 and Y6 during the forthcoming academic year.

Could you please clarify the arrangements for the Year 6 cohort during the academic year 2014-15? Will the new National Curriculum become statutory for this year, despite the end-of-year assessments still being based on the existing framework?

DfE answers: All maintained schools will be required to teach the new national curriculum for all subjects and at all key stages from September 2014, with two exceptions. The new national curriculum for year 2 and year 6 English, mathematics and science will become compulsory from September 2015, to reflect the fact that key stage 2 tests in summer 2015 will be based on the existing national curriculum. Key stage 4 English, mathematics and science will be taught to year 10 from September 2015 and year 11 from September 2016, to ensure coherence with the reformed GCSE qualifications in these subjects.

To support this transition, we confirmed on 3 May 2013 our decision to disapply the majority of the current national curriculum from September 2013 to give schools freedom and flexibility as they prepare to teach the new national curriculum. Maintained schools will still be required to teach the national curriculum subjects, but will have more flexibility over what they teach. The regulations required to bring this change were laid in June 2013 and will come into force from 1 September 2013. The full document is here.

Q: I work in a secondary Academy, and would like to know if we are able to stop using National Curriculum levels for our KS3 teacher assessments in the coming academic year so that we can replace them with another assessment system.

DfE answers: Following consultation, the current National Curriculum programmes of study for Key Stage 3 will be disapplied in 201314. Schools will no longer be required to assess and report to parents against the current system of levels and level descriptions. Further information can be found here.

As your school is an academy, you don't need to follow the national curriculum or the associated levels, but you are still bound by statutory assessment requirements which refer back to the national curriculum - so if your pupils are going to take GCSE they must have studied what it will cover.

Q: Please can DfE clarify the requirements for DBS checks (Enhanced Criminal Record Certificates) for academy trustees and governors.

The Education (Independent School Standards) (England) Regulations 2010 Part 4, paragraph (6) (b) say that members of the "proprietor" must have a DBS check.We understand that "proprietor" is the academy trust so it appears the Regulations don't require a DBS check for governors who are not also trustees.However, the Single Academy Model Funding Agreement paragraph 16 says that DBS checks must be done for `individual Governors', which seems to be wider than the Regulations.

The Single Academy Model Articles of Association, in the section dealing with governor disqualification, sets out what happens if a governor has a criminal conviction (paragraph 78) or if the DBS check "discloses information which would in the opinion of either the chairman or the Principal confirm[the governor's]unsuitability to work with children" (paragraph 79). It's not fully clear what process is envisaged but it seems to say that anything disclosed on a DBS check must be reviewed by both chairman and Principal. If they both agree the information makes the governor unsuitable to work with children the governor is disqualified, if both are happy with the information he's not disqualified (unless the disqualification is mandatory anyway under paragraph 78), but if they cannot agree they can refer to the Secretary of State for a determination. Presumably the chairman and Principal can call the governor concerned to a meeting first to investigate the circumstances if they feel that is appropriate.

Paras 78 and 79 of the Articles only refer to governors not trustees. It's not clear whether similar requirements and procedures apply to academy trustees.

Paragraph 78 of the Articles says that a governor is automatically disqualified when he has been convicted of any criminal offenceexcept an offence for which the maximum penalty is a fine or less (special provision for a Charities Act offence). For more serious offences disqualification is automatic except for offences "that have been spent under the Rehabilitation of Offenders Act 1974 as amended". This is puzzling as we understood that all positions and roles in a school, including governortrustee roles, are exempt under the 1974 Act and convictions are never spent.

Paragraph 78 is therefore an objective test - does the governor have a specified conviction or not - whereas paragraph 79 is a subjectivetest regarding DBS information other than disqualifying convictions - in the opinion of the chairman and Principal is the person unsuitable to work with children?

Ourspecific questions are:

Q: Do The Education (Independent School Standards) (England) Regulations 2010 Part 4, paragraph (6) (b) and the Single Academy Model Funding Agreement paragraph 16 taken together mean that a DBS check must be obtained for: (a) all members of an academy trust, and (b) all governors who are not trustees, and (c) (in a MAT) all members of local governing bodiesadvisory bodies?

DfE answers: In the case of a maintained school converting to an Academy (where the governing body of the maintained school applies for the Academy to be registered as an independent school) if the Chair of Governors of the Academy Trust (or any of the Governors) hashave already had a CRB check carried out by the local authority there is no requirement for a further check to be undertaken on that person through the Department. Where required, the CRB check of the Chair of GovernorsDirectors of an Academy Trust (being either a proposed or registered independent school) should be carried out before appointment or as soon as practicable thereafter. In exceptional circumstances the Secretary of State may require a CRB check to be undertaken through the Department on Governors of the Academy.

The independent school standards regulations say that the chair or any person who is a member of the body corporate which is the proprietor of an independent school (so the directors of the Academy) must be checked.

Here's the link to the relevant document: http:www.education.gov.ukschoolsleadershiptypesofschoolsacademiesprub00205169supporting-documentscriminalrecordsbureauchecks

Here are the definitions of which roles and which establishments are covered by the laws as `working with children': http:www.legislation.gov.ukukpga200043partIIcrossheadingeffect-of-disqualification-from-working-with-children

Here's the employers guide to the DBS: https:www.gov.ukgovernmentuploadssystemuploadsattachment_datafile207376Employer_guide_v3.2_17.06.13.pdf

Q: Are all academy trustee, governor, and local governing bodyadvisory body positions exempt under the Rehabilitation of Offenders Act 1974 so that convictions are never `spent' and must be disclosed however long ago they occurred?

DfE answers: The disclosure of a criminal record, or other information, will not bar a person from becoming a proprietor of an independent school unless the Secretary of State considers that the conviction renders them unsuitable. In making this decision the Secretary of State will consider the nature of the offence, how long ago the offence was committed, the person's age when the offence was committed and other factors which may be relevant.

Q: Is the disqualification in paragraph 78 of the Articlesfor offences with a maximum penalty greater than a fine automatic, ie the chairmanand Principal haveno discretion not to disqualify even if they think the person is suitable to work with children?

DfE answers: If it is a spent conviction under the Rehabilitation of Offenders Act, then they can be governors. Important to note: A spent conviction is a conviction which, under the terms of Rehabilitation of Offenders Act 1974, can be effectively ignored after a specified amount of time. The amount of time for rehabilitation depends on the sentence imposed, not on the offence.

An organisation must not engage someone in regulated activity whom it knows has been barred by the DBS. if an organisation that works with children or vulnerable adults dismisses a member of staff or a volunteer because they have harmed a child or vulnerable adult, or it would have done so if they had not left, it must refer this information to the DBS. A person who is barred by the DBS from working with children or vulnerable adults will be breaking the law if they work or volunteer, or try to work or volunteer with those groups.

Q: The criteria for a disqualifying offence is the maximum sentence for the offence, not thepenalty the governor actually received. Can the DfE point us to any easily accessible official source for finding out the maximum sentence for an offence to avoid us having to incur lawyers fees to find out?

DfE answers: Parliament lays down the maximum sentence for every offence, leaving it to the judge to decide the precise sentence within an appropriate range. There is a very complicated legislative framework to which a judge must have regard, with guidance to be found across a number of statutes, including Criminal Justice Act 1991, Powers of Criminal Courts (Sentencing) Act 2000, Sexual Offences Act 2003, Criminal Justice Act 2003, and Criminal Justice Immigration Act 2008, the Coroners and Justice Act 2009. There is a new Bill currently before Parliament which will make detailed changes to the framework.

This may help with the sentencing and rehabilitation aspect: https:www.gov.ukgovernmentuploadssystemuploadsattachment_datafile148542rehabilitation-offenders.pdf.pdf

Q: Do paragraphs 78 and 79 of the Articles apply to trustees and to local advisory board members as well as governors?

DfE answers: It is only if trustees or local advisory board members have close and unsupervised contact with children that they would fall within the scope of regulated activity and be eligible to obtain an enhanced DBS and barred list check.

Q: Various regulations regarding independent schools - which includes academies - refer to the obligations and responsibilities of the `proprietor' of the academy. Who is, legally, the `proprietor' ofan academy? Is it the academy trust?

In which legislation is there a statutory definition of the `proprietor' of an academy?

DfE answers: Yes, aproprietor of an academy is commonly referred to as an Academy Trust. A proprietor is set out in the meaning of section 579 (general interpretation) of the Education Act 1996, who has entered into academy arrangements within the meaning of section 1 (academy arrangements) of the Academies Act 2010

Q: I'm a governor at a Local Authority VA school so the governing body is responsible for the conduct of Parent Governor elections. We are reviewing our procedures.

Both The School Governance (Constitution) (England) Regulations 2007 and The School Governance (Constitution) (England) Regulations 2012 say the governing bodyhas to "secure that every person who is known to them to be a parent of a registered pupil at the school is ..informed that he is entitled to stand as a candidate and vote in the election".

Can DfE advise:

(1) Does this mean that each parent has a separate vote, ie where there are two parents in the family with parental responsibility the family has two votes but if it is a single parent family and the schoolknows of only one parent with parental responsibility then the family gets only one vote?

(2) Does it make any difference how many children of that family are pupils in the school? ie, is it only one vote per parent however many of your children are in the school?

DfE answers: `Parent' is defined for the purposes of the constitution regulations as `any individual who has or has had parental responsibility for, or who cares or has cared for, a child or young person under the age of 18'. It includes a person who the child lives with and who looks after the child, irrespective of what their relationship is with the child. Therefore, each parent with parental responsibility is entitled to vote. Each parent must receive only one ballot paper, irrespective of the number of children at the school.

Q: We are a LA maintained Foundation non-faith secondary school. We are told that teachers have the right to withdraw from taking part in `collective worship' assemblies and from teaching Religious Education (unless specifically appointed to teach RE) but we cannot find where the law is for that assertion. Can DfE advise, for a non-faith school, where is the law that says

(1) A teacher has the right to withdraw from assemblies which include acts of collective worship and cannot be directed by the headteacher to attend?

(2) A teacher cannot be directed by the headteacher to teach religious education (unless appointed specifically to teach RE)?

DfE answers: No, a teacher cannot be taken on for a role that does not include teaching RE and then be required to teach it. A teacher cannot be penalised for not attending collective worship. The relevant legislation is in section 59 of the School Standards and Framework Act 1998. It says - "59 Staff at community, secular foundation or voluntary, or special school

(1) This section applies to -

(a) a community school or a community or foundation special school, or

(b) a foundation or voluntary school which does not have a religious character.

(2) No person shall be disqualified by reason of his religious opinions, or of his attending or omitting to attend religious worship -

(a) from being a teacher at the school, or

(b) from being employed [or engaged] for the purposes of the school otherwise than as a teacher.

(3) No teacher at the school shall be required to give religious education.

(4) No teacher at the school shall receive any less remuneration or be deprived of' or disqualified for, any promotion or other advantage -

(a) by reason of the fact that he does or does not give religious education, or

(b) by reason of his religious opinions or of his attending or omitting to attend religious worship."

Read previous Qamp;As here


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