Legal representation

Some recent situations have suggested to ASCL that it would be a good idea to get clarification from the DfES on the rights of maintained schools to legal representation from their local authority.

The following statement represents the DfES position: "Monies for the provision of legal services have been delegated to schools since 'fair funding' started in 1999, along with similar items like personnel services, payroll and administration. Schools may choose whether to buy back legal services from the local authority through service level agreements (which most schools do), or purchase them elsewhere (which some schools do)

"Local authorities generally provide legal advice to schools by enabling them to access their own legal services departments. Lawyers employed by local authorities can, and regularly do, give legal advice to schools.

"There might be occasions where a local authority lawyer called upon to give advice to a school considers that the advice would conflict with the interests of the local authority. If this is the case, the school should be advised that there is a need to seek independent advice elsewhere. Where the school has bought back the local authority service, but is unable to obtain advice from local authority lawyers due to conflict of interest, the local authority should provide legal advice through another source. Possible alternative sources might be a private firm of solicitors or the legal services department of another local authority.

"All schools have the option of not buying back from the local authority and using the sum delegated to them to purchase advice from private firms of solicitors or to take out legal insurance."

In view of the great cost of enforcing legal rights (£50,000 may be considered to be a conservative estimate in some circumstances), it is sensible either to buy back legal advice from the LA or to arrange comprehensive legal insurance. It is also important to consult a legal adviser before acting.

In cases involving the institution, rather than an individual member, ASCL can only give general advice, not advice on particular cases.