Implications of the ASCL Act

The Apprenticeships, Skills, Children and Learning Act, which passed into law in November, impinges on a myriad of areas - funding changes post-16, local authority powers to direct 16-19 admissions, the duty to cooperate with Children's Trusts, to name a few.

However, for schools in England, on a day-to-day basis the main headaches may be the power to search and the new complaints procedures.

The search powers are a classic case of a power that is no power. Although heads can authorise a search for certain objects, by force if necessary, there are so many conditions imposed that the use of these powers becomes highly dubious.

These include that the searcher and the witness are of the same gender if practicable, the pupil is present, there is 'reasonable' suspicion that the offending article or articles are present, and only 'reasonable force' is used.

Prudent legal advice is if there is any resistance to call the police. This may mean a youngster gets a police record which is not particularly desirable. However the regrettable fact is that the right of teachers to use force is something that LADOs, police and magistrates have been generally ignorant of, and hostile to.

A school might use the forcible search powers if life is threatened, if the police are unable or unwilling to respond or the potential perpetrator is small enough to be over-powered without injury to anyone, but otherwise the legal advice would be that teachers should not get involved.

That this will be criticised and that some teachers will ignore it, feeling a higher professional duty, does not invalidate the advice.

While the search powers are unhelpful, the greatest and most damaging pressure for schools is likely to come from the new right for parents to complain to the ombudsman at any time, including after a child has left the school; on any matter (not merely administrative); with protection from proceedings for defamation; and without the person or school complained of having an automatic right to legal representation.

It is only fair to say that we do not yet know what filtering processes the ombudsman will operate within his wide discretion. At least the complainant will generally have had to use the school's processes first.

For schools to fully protect themselves, any discussion with a parent that may turn into a complaint will need to be recorded and followed up with a letter making clear what the school understands as the concern and the school's position on it.

This may turn more niggles into formal complaints and make schools less human; but that is implicit in the legislation. It also will be time-consuming, but less so than a reference to the ombudsman.

For a more detailed list of implications of the ASCL Act, see guidance paper 60 at www.ascl.org.uk

By Richard Bird, ASCL legal specialist