GOLDline case studies

Q: I am the Chair of a maintained primary school.  The school has been dealing with a large number of Freedom of Information Act (FOIA) and Subject Access Requests.  Can NGA advise:

• a)  If there is a time limit to respond to a FOIA request?
• b)  If there is a time limit to respond to a Subject Access Request (SAR)?
• c)  What is the next step if a SAR is disputed, but the school is satisfied that the request has been met in full?
• d)  If the school can get any practical, administrative help in handling FOIA/SAR requests?

A:  NGA advice to each of the questions raised is as follows:

a) Yes, the school is under a statutory obligation to respond to FOIA requests within 20 working days (See Section 13.10, Clause 46 of the Department for Education’s  Governance Handbook)

b) Yes, the school is under a statutory obligation to respond to SAR’s within 40 calendar days (See Section 13.9, Clause 40 of the Department for Education’s Governance Handbook)

c) Under the Freedom of Information Act, there is no obligation to provide a complaints process.  However, it is good practice and most public authorities choose to do so.  You should therefore deal with any complaint through the school’s complaints procedure.

The Information Commissioner’s Office (ICO) has a general duty to investigate complaints from members of the public who believe that an authority has failed to respond correctly to a request for information and the ICO would expect the complainant to have gone through your internal complaints procedures before approaching the ICO.

d) The ICO offers a free data protection consultancy service, with a view to giving practical advice and recommendations on how to improve data protection practice, and information on this service can be found on the ICO Website.

NGA is not aware of any specialist providers to actually undertake some of the actual work associated with FOIA and SAR requests, but this may be something that you want to approach your Local Authority about, either in terms of any assistance it may be able to offer or for local recommendations of support.

Q: I am the Clerk of a maintained primary school.  The term of office for the school’s current Chair of Governors expires in May and he will not be renewing his term of office.  He is also a parent governor and so the school will need to undertake a parent governor election and a chair’s election.  The Governing Body has no vacancies, but it wants to appoint a new Chair in September and in the meantime allow the existing Chair to remain as a governor and as Chair until the end of the academic year, allowing time for a proper handover to the new Chair.  The current Chair is happy with this arrangement but can it legitimately be done?

A:  NGA advice to the question raised is as follows:

The Regulations do not allow for there to be more governors than specified on the Instrument of Government and consequently, it is not possible for your existing Chair of Governors to retain this position beyond his term of office.

The constitution of governing bodies is detailed in The School Governance (Constitution) (England) Regulations 2012.  Regulation 13 sets out the requirements for all maintained schools as follows:

13.—(1) The governing body of every maintained school must be constituted in accordance with this regulation.

(2) The total membership of the governing body of a maintained school must be no fewer than seven governors.

(3) The governing body of a maintained school must include the following—

(a) at least two parent governors;

(b) the head teacher unless the head teacher resigns the office of governor in accordance with regulation 19;

(c) one staff governor; and

(d) one local authority governor.

(4) The governing body may in addition appoint such number of co-opted governors as they consider necessary provided that the requirements in regulation 14 are met in respect of governing bodies of foundation and voluntary schools.

(5) The total number of co-opted governors who are also eligible to be elected as staff governors under Schedule 2, when counted with the staff governor and the head teacher, must not exceed one third of the total membership of the governing body.

Regulation 15 stipulates the actions Governing Bodies need to take to ensure that there are not more governors than allowed for by the Instrument.

However, the Governing Body’s desire to retain your existing Chair’s expertise and to ensure a smooth handover does seem sensible.  The Governing Body can, at its discretion, invite any individual to attend a meeting and indeed contribute to discussions- as set out in Regulation 12 of the School Governance (Roles, Procedures and Allowances) (England)  Regulations 2013:

Right of persons to attend meetings of the governing body

12.—(1) Subject to regulations 12(2), 16 and 17 and to Schedule 1, the following persons are entitled to attend any meeting of the governing body—

(a) a governor;

(b) the head teacher of the school, whether or not that person is a governor;

(c) the clerk to the governing body;

(d) an associate member; and

(e) such other persons as the governing body may determine.

Consequently, if the Governing Body determines the current Chair as a “such other person” then this would enable him to attend Governing Body meetings, although he would not be eligible to vote at such meetings.

Given that you will need to undertake both Parent Governor and Chair’s elections, I would add that the aforementioned School Governance (Constitution) (England) Regulations 2012 detail in Schedule 1 the process for the appointment of parent governors and  The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013 outlines the requirements for the election of the chair (Regulation 7).  

Q: The Trust Board is considering allowing the Clerk to use her smartphone to record Board meetings to assist in the production of minutes.

I am the Company Secretary and Business Manager and would be grateful for advice on any legal or good practice considerations the Board should take into account.

A:  NGA advice to the question raised is as follows:

This should be a matter for the Board to decide and in doing so it will need to take into account the provisions of the Data Protection Act 1998.

Recordings of voice or image are classified as personal data and are subject to the provisions of the Data Protection Act 1998. The act requires that all data is processed in line with Data Protection Principles which can be found via the following link:

https://ico.org.uk/for-organisations/guide-to-data-protection/

With regard to the First Principle, in practice, it means that you must:

• have legitimate grounds for collecting and using the personal data;
• not use the data in ways that have unjustified adverse effects on the individuals concerned;
• be transparent about how you intend to use the data, and give individuals appropriate privacy notices when collecting their personal data;
• handle people’s personal data only in ways they would reasonably expect; and
• make sure you do not do anything unlawful with the data.

Board and Committee meetings require conditions for a free and frank exchange of views and ideas, and may involve discussion which is confidential, person and/or business sensitive.  The Board may want to consider if recording meetings would inhibit the free exchange of views and whether there would be an increase to the risk of loss of confidentiality and additional risks associated with the collection of data on a personal device, bearing in mind that even if the recording is made on a personal device, the Governing Body remains the data controller and therefore responsible for any breaches of the act.  The following document produced by the Information Commissioners Office gives some guidance on the usage of own devices:

Click here

The Board might want to consider drafting a short policy on the Usage of Recording Devices at Meetings to ensure that the position it takes is clear and communicated to all.

Q:  I am the Clerk to Trustees of an academy.  Can you clarify the rules regarding consultation when converting to an academy sponsor?

A:  NGA advice to the question raised is as follows:

The Department of Education Guidance on the sponsorship of an academy is guidance and not statutory guidance, and Section 2 states:

“Academy trusts  

If you’re an Academy trust, or are in the process of setting up an academy trust, we recommend that you inform parents and the local community that you intend to become an academy sponsor.  You should consider their views before applying.”

A link to this guidance is given below:

https://www.gov.uk/guidance/sponsor-an-academy

Whilst the above guidance provides no information on consultation periods and timeframes, the Department for Education has produced further advice in its “Making significant changes to an open academy” publication.  This advice states that “ The consultation process on a significant change should run for a minimum of four weeks, although where there are any changes requiring a change to admission arrangements there must be a six week consultation……”.  This document can be found via the following link:

Click Here

The guidance on sponsoring an academy suggests that the first step of the process is to contact your Regional School’s Commissioner, and as such a consultation timeframe may be something you raise with him/her, but it would seem reasonable to follow the guidance detailed in the “Making significant changes….” publication.    Similarly, the RSC will be able to give guidance on the letter to stakeholders, but as a general guide the consultation should be clear about what the proposal is and to demonstrate:

• How the proposal benefits the Trust
• How the proposal benefits students
• What changes there will/may be to governance
• What changes there will/may be to existing academies within the Trust
• If there will be any changes to admissions/school uniforms/names/logos etc
• What are the impacts of funding?

A FAQ type document might be useful to try and address the questions you would anticipate from your various stakeholders.

Q:  Can you clarify the requirements on free schools for SEN reporting?

A: NGA advice to the question raised is as follows:

Thank you for contacting the NGA, and apologies for the delay in getting a response to you. The Department for Education have produced the SEND Code of practice which details what must be included in the SEN information report. Paragraph 6.79 gives a list of what must be included in such a report:

The governing bodies of maintained schools and maintained nursery schools and the proprietors of academy schools must publish information on their websites about the implementation of the governing body’s or the proprietor’s policy for pupils with SEN. The information published should be updated annually and any changes to the information occurring during the year should be updated as soon as possible. The information required is set out in the Special Educational Needs and Disability Regulations 2014 and must include information about:

evaluating the effectiveness of the provision made for children and young people with SEN… 

The Special Educational Needs and Disability Regulations 2014, offer some further details in Schedule 1 which, states that the SEN Information Report must contain:

3. Information about the school's policies for making provision for pupils with special educational needs whether or not pupils have EHC Plans, including—

(a) how the school evaluates the effectiveness of its provision for such pupils;

(b) the school's arrangements for assessing and reviewing the progress of pupils with special educational needs;

Therefore we would advise that ‘how’ would include not just the mechanics of what you do, but how you know it is accurate – which leads to evaluating effectiveness. 

Q:  Does NGA have a model policy for a religious dress code that would apply to pupils and staff?

A:  NGA advice to the question raised is as follows:

NGA does not have a model policy on this matter. It is not common practice for schools to have a standalone policy on religious dress code, but more commonly the issue is incorporated into other school policies; the school uniform policy for pupils, and the staff code of conduct for school staff.

The ACAS website gives an overview of things that organisations may consider when determining a staff dress code. On the subject of religious dress, it says:

“Some employers may wish to cover issues around religious dress within their policies, however, employers are advised to tread cautiously in this area as they should allow groups or individual employees to wear articles of clothing etc. that manifest their religious faith. Employers will need to justify the reasons for banning such items and should ensure they are not indirectly discriminating against these employees. Any restriction should be connected to a real business or safety requirement.”

The Department for Education (DfE) has produced advice for schools on the Equality Act 2010 which covers school uniform on page 15 (paras 2:15-2:18) and School Uniform Advice

Equality Act 2010: Advice for Schools

DfE School Uniform Advice

The Equality and Human Rights Commission has also provided guidance which you may find useful – both address the issues of religious dress in schools for pupils or staff:

Technical Guidance for Schools

Religion or Belief in the Workplace – pages 4-10 are particularly relevant.

Religion or belief in the workplace encourages employers to have a procedure for considering requests relating to religious dress. It advises that employers should consider individual cases as follows:

To reach a fully considered, balanced, and reasonable conclusion, an employer should consider, amongst other factors:

• The cost, disruption and wider impact on business or work if the request is accommodated
• Whether there are health and safety implications for the proposed change
• The disadvantage to the affected employee if the request is refused
• The impact of any change on other employees, including on those who have a different religion or belief, or no religion or belief
• The impact of any change on customers or service users, and
• Whether work policies and practices to ensure uniformity and consistency are justifiable.

In summary, you are able to set out a policy on religious dress in the school for both staff and pupils, but in order to comply with the Equalities Act 2010, you must ensure that the policy is applied broadly and does not discriminate against individuals. You must also ensure that it is flexible and allows for requests to be made in exceptional circumstances.