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Next edition of FIS

The next issue of Funding for Independent Schools will be mailed out to bursars and heads in April 2010. It will contain the latest strategic and financial news for heads, bursars and governors. More details to follow.

Contact Andrew Maiden on 01926 339661 for more information.

Legal update in association with

New rules on music licensing will affect charitable schools

Organisations wishing to play music in public generally need a licence. There are presently exemptions available to charities, but the government has recently been consulting on plans to abolish those exemptions. In November 2009, the Government issued its response to this consultation process and proposed (i) to repealing the current exemptions for charities and (ii) to simplify the system under which charities apply for licences. This will affect a range of bodies including charitable schools.

What is the current position?
If you play or broadcast music in public you generally require a licence from PRS for Music (PRS) and also a licence from Phonographic Performance Limited (PPL). For these purposes, "in public" typically encompasses the playing of music in school concerts, classrooms, dance classes, aerobics classes and gyms. The licence fees paid to PRS and PPL are ultimately distributed to music creators: PRS collects fees for composers and songwriters, and PPL collects fees for performers and record companies.

Presently, charities are exempted from the requirement to obtain a PPL licence, but this exemption does not apply to PRS. The current legislation is criticised for being overly complex, notably with the charity exemption applying to one society and not the other.

What are the proposed changes?
Changes, set to be introduced in April 2010, will abolish the PPL exemption in favour of a simplified licensing system jointly coordinated by PPL and PRS. This system will provide for a single point of contact, and a single payment to apply in respect of charities. Further details, including prices, are due to be agreed between the societies and the sector before the PPL exemption is abolished.

What does this mean for charitable schools?
According to the government's response document, the joint licensing scheme should remedy difficulties with the two societies' licensing systems, and reduce the administrative burden for all involved. The simplified licensing scheme should, in theory, make the abolition of the exemption more palatable for the charitable sector by providing for a single payment in exchange for a single licence. However, the true impact on the sector will only become clear once the revised pricing structure is announced.

For further information contact Doug Locke on 0117 3145602.

Changes to Vetting and Barring Scheme - "Drawing the Line"

In September, Sir Roger Singleton, the Government's Chief Adviser on the Safety of Children and Chair of the Independent Safeguarding Authority (ISA) was asked by the Secretary of State, Ed Balls to check whether the Government had "drawn the line in the right place" in relation to the requirement to register under the Vetting and Barring Scheme (VBS). On 14 December 2009, Sir Roger published a report entitled "Drawing the Line". The report made 10 recommendations. Ed Balls issued an immediate statement confirming that all the recommendations have been accepted by the Government. It is important to note that while some of Sir Roger's recommendations can be implemented through revised guidance, others involve amendments to the legislation. The timescale for these is as yet unknown.

The recommendations are that:
1. Private arrangements made between parents and friends for the care of their children will not be affected by the VBS. Contrary to press reports this does not change the position as set out in the Act.
2. Where organisations such as schools, clubs or groups make the decisions on who should work with children then the requirement to register will apply, subject to the test of "frequent or intensive contact". Schools should already check and risk assess volunteers who undertake regular activities with children at the school's request.
3. The frequent contact test will be met if the work with children takes place once a week or more. The intensive contact test will be met if the work takes place on four days in one month or more or overnight.
4. Individuals who go into different schools or similar settings to work with different groups of children will not be to be required to register unless their contact with the same children is frequent or intensive. This addresses the issue raised by children's authors which prompted Sir Roger's review. However, it is still not altogether clear what is meant by "the same children" or "different groups".
5. The minimum age for registration with the scheme is currently 16. It is recommended that this should be reviewed for young people who engage in regulated activity as part of their continuing education. This should confirm that student volunteers working in the community under arrangements made by schools should not require registration.
6. Overseas visitors bringing their own groups of children to the UK, eg to international camps or the Olympics will have a three month exemption from the requirement to register.
7. Exchange visits lasting less than 28 days, where overseas parents accept the responsibility for the selection of the host family, will be regarded as private arrangements and will not require registration. Schools need to review their current arrangements with care to ensure that the element of selection by the overseas parents is clear.
8. The Government will consider the position of some self-employed health care practitioners who are currently exempt from the requirement to register with the scheme.
9. The Government will review the continuing need for the concept of "controlled activity".
10. The Government will review the statutory requirements and guidance in relation to the continuing need for CRB checks and will be launching a public consultation on this issue shortly.

Sir Roger's final comment was that there is "an urgent need for the Government to renew its efforts to communicate the details and safeguarding benefits of the scheme." Some of these recommendations raise further questions and it is to be hoped that updated guidance will be issued without delay.

Child protection policy

All independent schools must now have published their child protection (or safeguarding) policy on their website.

It is important to ensure that this is your full policy, rather than a summary version. Where no website exists, the policy must be sent to parents on request.

If you would like assistance in drafting and implementing a safeguarding/child protection policy suitable for your website, or assistance with any other policies, please contact Rosie Tura.

For further information contact: Rosemary Tura Tel: 0117 314 5233 Email: rtura@vwl.co.uk

Immigration update

Tier 4 - Students - Confirmation of Acceptance of Studies

On 5 October 2009, the online sponsorship management system (SMS) for Tier 4 will go live (as it currently is for Tier 2). Via the SMS, schools will be able to sponsor potential non-EEA students online with an electronic Confirmation of Acceptance of Studies' (CAS) rather than by Visa Letter.

Between 5 October 2009 and February 2010 there will be a voluntary trial period in which schools can continue to use the current Visa Letter as an alternative to, or in conjunction with, the CAS for prospective students applying from within the UK. Schools will still need to use Visa Letters to sponsor prospective students applying from overseas. From February 2010 schools will no longer be able to use a Visa Letter and will need to instead issue a CAS for all non-EEA prospective students.

Note that if a school uses a CAS, the sponsorship reporting obligations will apply in full in relation to that sponsored student, but where the school uses a Visa Letter, the sponsorship reporting obligations will remain optional, as they currently are.

A CAS is a virtual document (a unique reference number) that schools will be able to issue online via the SMS to potential students from outside of the EEA in order to sponsor them. The SMS also allows schools to carry out the administrative functions necessary to comply with their sponsor obligations and duties, and communicate information to the UKBA.

Other than this change the Points-Based System will operate in the same way as before. Schools will need to be registered with the UKBA as Tier 4 Sponsors and then sponsor the potential non-EEA student online with a CAS. The student will then need to use their CAS to apply for a Visa - however, having a CAS issued to them by a school will not guarantee that they will be successful in their Visa application.

Other changes from 7 August 2009:

On 7 August, the UKBA announced that they will be making a number of changes to the new Points-Based System. The change which will be of most interest to schools is that the UKBA will now "endeavour to contact [applicants] to correct minor omissions or errors in their applications", where appropriate and practicable. Many schools have experienced frustration with the new system when the UKBA has rejected applications made for insignificant and minor errors, often stalling the process quite significantly. Hopefully this more common sense approach will mean the new system runs more smoothly for schools.

Other changes from October 2009:

When students, sponsored prior to 5 October, wish to change schools, this can be done by notifying the UKBA by email. Under the new immigration rules, which came into force on 5 October, students sponsored after 5 October will be more closely linked to their sponsoring school and a fresh application will need to be made if the student wishes to change schools. The UKBA will be issuing new guidance to incorporate these changes in due course.

For further information contact: Claire Wilkins Tel: 0117 314 5274 Email: cwilkins@vwl.co.uk

Employment update

Workers can reclaim holidays lost to sickness.

In Francisco Vicente Pereda v Madrid Movilidad SA, the European Court of Justice (ECJ) added a further twist to the already complicated position regarding holidays and sickness.

The ECJ held that where workers' pre-planned annual leave coincides with a period of sickness absence, on their request, they are entitled to reclaim that period of leave under the European Working Time Directive (Directive) and take it at a later date. The ECJ further held that where a worker is prevented from taking leave in the current leave year, they are entitled to carry this forward to the next.

This judgement follows on from the case of HM Revenue and Customs v Stringer & Others, on which we reported in the July issue of Schools Law Brief. In Stringer, it was held that a worker accrues the statutory minimum holiday entitlement whilst on sick leave.

Currently, as the UK version of the Directive, the Working Time Regulations does not fully implement the Directive in this regard, the ruling in Pereda will affect public sector employers only. Maintained schools will therefore be directly affected. Whilst the law is not absolutely clear, it is likely that academies and FE colleges will also be affected. Until Parliament amends the Working Time Regulations to reflect this ruling, the decision will not impact independent schools.

Where schools are affected, this will undoubtedly be a worrying development, potentially opening the door for abuse by re-classifying periods of annual leave as sickness absence, possibly on the word of the worker alone.

Schools should therefore require staff to report all sicknesses during holidays. Medical certificates evidencing that the worker would have been unable to work if they had not been on holiday should also be sought. The School can offer to pay for a certificate in the event of a doctor resisting giving a medical certificate for a short period.

For further information contact: Karl Deakin Tel: 0117 314 5443 Email: kdeakin@vwl.co.uk

The right to legal representation at disciplinary hearings - a basic human right?

The case of Kulkarni v Milton Keynes Hospital Trust [2009] EWCA Civ 789 involved a trainee doctor who appealed the decision of the NHS, his employer, to refuse his request for legal representation at a disciplinary hearing.

The Court of Appeal found that separate to any contractual right, he had an entitlement to legal representation under Article 6 of the European Convention on Human Rights.

Article 6 provides every person with the right to a fair hearing. Previous European case law held that Article 6 applies where a person is subject to a decision which affects their "civil rights and obligations" and this includes an individuals ability to practice their profession. Article 6 applied to the doctor, as he would have been barred from working in all NHS hospitals impacting on his future working life.

In a separate case, which we reported earlier in the year, a teacher was entitled to legal representation where a School's disciplinary procedure meant he would be reported to the Secretary of State (now to the ISA) and potentially be prohibited from working with children.

In conclusion, employees do not have an implied basic human right to legal representation at disciplinary hearings and schools do not need to amend their disciplinary procedures. In the vast majority of cases, employees are still only entitled to be accompanied by a colleague or trade union representative.

However, should an employee seek legal representation, the school should carefully consider the seriousness of any charge and whether it may have severe consequences on their ability to carry out their chosen profession. If in doubt, advice should be sought on whether legal representation is necessary.