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The legality of cutting back school hours to cut costs?

25 July 2017

Local Government analysis: With increasing budget pressures, some schools and academies are looking to reduce opening hours. Katie Michelon, an associate in the education team at Browne Jacobson, considers the implications of this latest development and the potential for legal challenge.

Original news

PM under scrutiny over education funding policies, LNB News 14/07/201760

'Guardian, 4 July 2017: Theresa May faces a revolt from the Conservatives over education funding policies, which among others scrap free school meals for primary pupils and cut school hours in order to save £650m. A primary school in Leicestershire is among others affected.'

What is behind the decision taken by a Leicestershire primary school and others?

Further to the proposal to introduce a national funding formula, school funding has received much attention in recent months, including during the General Election campaign. Research carried out by six teaching unions has predicted that 98% of schools will be affected by real-terms funding cuts.

As a result, many school leaders have been forced to find dramatic ways of minimising running costs and reducing school opening hours is one of the measures that some schools are seriously considering.

What powers do schools have over setting school hours? Are there any legal obligations around the number of hours teaching time children have to be provided with?

In order to comply with the Education (School Day and School Year) (England) Regulations 1999, SI 1999/3181 local authority maintained schools in England must open for at least 380 sessions (190 days) during a school year.

School hours however, the head teacher of a maintained school is responsible for recommending the length of the school day to the governing body. The governing body will then consider and either agree or reject the recommendation.

The only requirements for school hours are that each school day has two sessions, divided by a break. The length of each session, break and the school day is to be determined by the governing body and they are able to revise the length of the school day as they see fit.

Academies have more control still as they are free to determine their term dates and the length of the school day and are not bound by the Regulations which require 190 days per school year. This is expressly referred to in the Department for Education's (DfE) current model funding agreement.

If a school does plan to adjust its school hours, are there any requirements around consultation, etc?

There is no statutory duty on governing bodies of maintained schools to consult parents on a decision to adjust the length of the school day. In practice however, schools should consider that proceeding without consultation could run the risk of damaging valuable home-school relations and that, in any event, it may assist both parents and the school to formally discuss and gather opinions on the proposal rather than taking the decision in isolation. Communication and notice are key.

The same principle applies to academies. Academies have more flexibility in the way the school day and year is organised, to allow less rigid educational provision and allow them to be more responsive to parents' needs. However, they should still consider the value of a genuine consultation exercise. It is an opportunity to hear, and hopefully resolve, concerns and is conducive to reasonable and fair decision-making, as is expected of all public bodies.

In taking such decisions, schools ultimately need to be mindful of their duty to act in the best interests of their pupils and academies should consider their charitable object which is to advance education.

What avenues are available to parents who wish to oppose/challenge a school's decision to change school hours? How successful are such challenges likely to be?

As mentioned above, the value of consultation is the existence of a forum to hear and hopefully address concerns and challenges before a final decision is made. Where parents remain unhappy with the proposal they may choose to complain to the school or academy via the school's complaints process.

In more extreme cases, parents could look to bring a formal legal challenge. The nature of the challenge is likely to depend on the particular circumstances but would most likely take the form of a judicial review claim which challenged the school's decision-making on grounds such as irrationality, proportionality or fairness. The success of any such claim would again depend on the relevant facts, including the process that the school followed in taking its decision and the reasons for doing so. In the event that a parent or group of parents did threaten legal action, we would strongly advise the school or academy to seek formal legal advice.

How many schools are likely to follow suit?

Running efficiently has always been important to schools and financial savviness will not be a new concept for most education institutions in the state sector. However, given the increasing pressure on school budgets, particularly in some areas, we would expect that a move away from typical school hours will be a consideration for a number of schools, especially if they see that others locally have managed to make adjustments successfully.

Clearly there needs to be a genuine financial benefit to making the changes and providing evidence of this will be an important part of the communications with stakeholders. While certain changes may result in significant savings in some settings, the impact may be less so in a school which is a different size or which is facing financial strain in different areas. School leaders who are seriously considering such amendments should ideally draw up a detailed business case, supported by a robust financial model, and include any implementation costs associated with the changes.

Could there be any wider consequences?

An obvious concern is that a significant reduction to the length of the school day, week or teaching time will mean that the standard of education being delivered at the school will slip. Where standards of performance at a school are considered unacceptably low, there is the risk of formal intervention by the local authority (for maintained schools only) or the Regional School Commissioner in accordance with the Education and Inspections Act 2006 (maintained schools) and the funding agreement (academies). On the flip side of course, schools may argue that the funding cuts are so severe that not making alterations to the length of the school day threatens the safety of staff and pupils and the ability to deliver quality education.

This also links in with Ofsted inspection. To what extent will Ofsted recognise the sacrifices schools may have to make to balance their budget? Ofsted's grade descriptors for leadership and management in 'outstanding' schools refer to a broad and balanced curriculum that inspires pupils to learn a 'range of subjects and courses that helps them acquire knowledge, understanding and skills in all aspects of their education, including the humanities and linguistic, mathematical, scientific, technical, social, physical and artistic learning'. A reduced curriculum may invite scrutiny of a school's curriculum provision and is likely to influence inspection judgments.

Schools may also need to consider the impact on their ability to provide extended services, including wraparound care. Government guidance on parents' rights to request wraparound care states that schools 'should not refuse a request without reasonable justification'. As schools can charge for extended services and wraparound care, a cost-benefit analysis of cutting these services would be necessary, in addition to running an equality impact assessment.

Finally, there is of course the question around how far the goodwill of the teaching profession will stretch in such a financial climate. Schools are communities and many of them rely, informally, on their staff making contributions of time and resources way above the job description. The willingness and ability of staff to do that as pressure increases on their role is called into question.

Are you aware of any other proposals currently being considered by schools in order to save money?

Schools are coming up with various ways of making their funding go further. We have seen regular news stories about schools seeking financial contributions from parents and budget concerns are certainly affecting recruitment decisions, in terms of which new staff are appointed (experience is expensive), or indeed whether to replace some staff at all. We know of schools which are considering or are already undertaking a staff restructure exercise to seek to operate as efficiently as possible and there are also measures such as hiring out school facilities, including for events like weddings. Some academies are considering utilising their flexibility to organise the school day and year by increasing the length of the school day by ten minutes per day and then increasing the amount of holiday between terms, for example by taking a seven-week summer period.

Katie Michelon advises schools and academies on a wide range of education law issues. She provides advice on areas such as safeguarding, exclusions, admissions, governance and special educational needs. She also specialises in school intervention work, delivering strategic advice to schools and academies that may be vulnerable to formal intervention measures from their local authority or the Secretary of State.

Katie has advised over 150 schools in relation to academy conversion under the Academies Act 2010 and now focuses largely on group and specialist projects, working with a number of multi-academy trusts on their expansion, including academy merger and re-brokerage projects. Katie also regularly delivers training to governing bodies and senior management teams on matters such as safeguarding, exclusions and governance.

This article was first published on Lexis®PSL Local Government on 19 July 2017. Click for a free trial of Lexis®PSL.

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