A little under a year into the CMA’s intervention into the allegedly anti-competitive behaviour of Education Software Solutions Limited (“ESS”) — one of the UK’s leading providers of Management Information Systems (“MIS”) — a line has been drawn and the investigation has come to an end. The CMA launched its investigation into ESS on 26 April 2022, as it had reasonable grounds to suspect that ESS had potentially acted in violation of the Competition Act 1998 (the “Act”) through the manner in which it was supplying MIS software to schools in the UK.
The main crux of the CMA intervention was to review ESS’s moving of schools into 3-year contracts from initial contracts of 1-year, whilst giving the schools little opportunity to look for MIS services elsewhere. This involved an 8 month deep-dive analysis into the activities of ESS, with the CMA bolstering its investigation through information requests from ESS, its competitors and its customers. Crucially, it is a legal requirement for the vast majority of state schools across the UK to have an MIS in place, such as ESS’s SIMS service. As such, schools were on the backfoot, and essentially tied to 3-year MIS contracts with ESS, with very restricted abilities to move to another provider.
After months of investigation, the CMA issued, on 17 November 2022, a notice of intention to accept commitments offered by ESS. Ultimately, the CMA secured signed commitments with a new break clause from ESS on 10 January 2023, drawing a close to the CMA probe.
Overall, this appears to be a favourable outcome for eligible schools who are looking for greater flexibility in their contracting for MIS services. The new break clause is only available to eligible schools, which were those schools moved into 3-year contracts with ESS, and who truly considered to move to a different provider had they had more time to deliberate other MIS avenues. Such eligible schools will benefit from a 12-month break clause, beginning from 1 April 2023, and enabling them to break their 3-year ESS contracts on 31 March 2024.
Eligible ESS customers must file an application form to an independent adjudicator in order to try and secure benefit from this new break clause ahead of the 5pm deadline on Friday 10 February 2023. Applicants will be notified of their success in securing a break clause on 31 March 2023.
Ann Pope, Senior Director of Antitrust at the CMA, stated that: “This break clause will give eligible schools 12 months to decide whether to exit their current contract and, if they do, to switch to a new provider — longer than ESS originally offered. The commitments secured from ESS will also bolster competition in the MIS market, giving schools more choice and ESS’s rivals a further chance to compete.”
Browne Jacobson is a leading national law firm with sector-specific industry leaders in the fields of commercial, education and disputes. As a full-service law firm, we are able to assist schools, colleges and trusts alike with any and all legal issues they may encounter, whilst scanning the horizon for their next challenges or opportunities.
In order to rake in the full benefit from the outcome of the CMA’s investigation before the 10 February 2023 deadline, eligible schools should reach out to our sector-specific experts at Browne Jacobson today.
Trainee Solicitor
conor.macaireduncan@brownejacobson.com
+44 (0)330 0452254
Senior Associate
Amba.Griffin-Booth@brownejacobson.com
+44 (0)330 045 2489
Regardless of the outcome of ballots on industrial action, unless there is drastic change to funding for schools in relation to pay increases, it will be unusual to find any organisational budget that is not impacted by the current economic situation.
There’s been little evidence of interventions or financial management reviews this year and it appears the Education and Skills Funding Agency (ESFA) has re-focussed on financial delivery. It’s also telling that there were no discernible changes to the reporting of financial irregularities in the Academies Trust Handbook 2022.
The Children’s Commissioner, Rachel De Souza, has recently published a report “Beyond the labels: a SEND system which works for every child, every time”, which she intends to sit alongside the DfE’s SEND Review (2019) and SEND Green Paper (2022) and which she hopes will put children’s voices at the heart of the government’s review of SEND system.
As well as providing day-to-day support to help you focus on managing your settings, we also provide training and professional development on a range of topics to keep you and your staff up-to-date.
The Equality and Human Rights Commission (EHCR) recently issued new, non-statutory guidance regarding the wearing of natural or protective hairstyles, specifically in reference to their representation in uniform, behaviour or standalone appearance policies.
Emma Hughes, head of HR services at Browne Jacobson, explains how CST’s updated executive pay report and the linked benchmarking service from XpertHR can help trust boards make robust decisions on pay.
There’s greater opportunity than ever for parents, carers and guardians to voice any concerns they have relating to their child’s education and for their concerns to be heard and to be taken seriously. While most staff in schools and academies are conscious of their legal duties relating to complaints management, many are struggling to cope with such a significant increase in the volume of complaints they must manage.
This guidance has been prepared to support academy trusts (Trusts) who want to hold a fully virtual Annual General Meeting (AGM) or a hybrid AGM, as we know that Trusts may want to be prepared for future disruption as well as having a general interest in holding more meetings virtually. The guidance also applies to other meetings of the Members (known as General Meetings).
We’re pleased to collaborate with Lloyds Bank, who recently asked us and audit and risk specialists Crowe UK to offer guidance that academy trusts would find helpful when considering setting up a trading subsidiary.
The DfE has published new guidance and opened the application process for window two of the Trust Capacity Fund (TCaF) for 2022/2023, with a fund of £86m in trust capacity funding focused particularly on education investment areas.
The Independent Inquiry into Child Sexual Abuse was established in March 2015. We now have its report. As you would expect with such a broad scope, the report is long and makes a number of far-reaching recommendations. In this article, Dai Durbridge highlights seven of the 20 recommendations, sets out how they could impact on schools and suggests what steps to take now.
Browne Jacobson’s education team has been named as winner of the ‘Legal Advisors to Education Institutions’ category at the Education Investor Awards 2022 for a record sixth time.
Since the new Suspensions and Exclusions Statutory Guidance was published, we have received a lot of questions about the use of managed moves. For the first time, the Statutory Guidance does explain what a managed move is, but in relatively broad terms and does not cover the mechanics of how a managed move should operate.
Over 3000 young people from across the UK and Ireland took part in a virtual legal careers insight event, aimed at making the legal profession more diverse.
Holly Quirk, an associate barrister in Browne Jacobson’s Manchester office, was awarded the Legal Professional of the Year Award at this year’s Manchester Young Talent Awards.
The risk of assault against staff is, sadly, something that all schools need to consider carefully. Here one legal expert explains what they can do to protect staff and ensure they fulfil their duty of care.
An engineering company in Tyne and Wear was fined £20,000 after a worker fractured his pelvis and suffered internal injuries after falling through a petrol station forecourt canopy, whilst he was replacing the guttering.
Browne Jacobson’s education team has again been confirmed as a national powerhouse after securing five Tier 1 rankings relating to Education in the latest edition of Legal 500 and maintaining a Band 1 UK-wide ranking for Education in Chambers & Partners UK 2023.