Taking the blame

The 14-19 diplomas, which will mean more students studying in different locations, bring with them a new set of issues, such as who has the final say in discipline matters, warns Richard Bird.

School and college leaders know that if a pupil is sent off to a work experience placement, the institution will share the responsibility if something goes wrong. The company office where a pupil is bullied or harassed will be liable; so will the firm where a pupil gets caught in a machine because the firm has not done a health and safety induction or exercised proper supervision; but so will the education provider. Duty of care for students does not end when they go on to someone else's premises.

So what about the new development: meeting the legal duty to fulfil a pupil's entitlement at Key Stage 4, if necessary by sending the young person to another institution? This becomes especially complex with roll-out of the 14-19 diplomas.

Child protection

The home institution needs to be confident that the receiving institution has applied the proper checks to ensure that unsuitable people do not come into contact with pupils. In the immediate future this will particularly affect 16-plus institutions because the requirement to apply enhanced checks to all staff who deal with young people under the age of 18 is sufficiently new for there to be potential for confusion.

There is also an issue in terms of codes of conduct for relationships with students which may need updating.

The home institution may be liable if it fails to raise the issue appropriately with other institutions involved. And it is not only the protection of young people that needs to be sorted out. For instance, whose responsibility is it to discipline pupils? The home and receiving institutions may have different policies and legal positions.

The tendency can be to follow the principle of change in British industry: Plan, do, put it right. Unfortunately, putting it right where legal responsibilities are concerned can become very expensive.

Within 14-19 consortia, there should be some means of ensuring that all institutions are following guidance on the protection of young people, such as a written assurance or protocol that guidance will be followed. The next thing might be an agreement jointly to police health and safety.

All this will look like additional bureaucracy until something goes wrong. Then it will look like prudence.

Whose discipline?

The discipline issue is more complex. For instance, one school which had sent a slightly more challenging pupil to the local FE college on a course under the increased flexibility programme was surprised to find him back after three weeks.

It turned out that the college operated an industrial model of discipline: one verbal warning; two written warnings; and out. The young man was more familiar with a more elastic school system and was out of his placement before he knew it.

In an ideal world, the students concerned would be no trouble; but laws are made for an imperfect world. A pupil who is attending another institution regularly for a course is presumably there under section 29(3) of the 2002 Education Act, which empowers governing bodies to direct a pupil to be educated at a place other than the school at which s/he is registered.

The school is therefore still responsible for the pupil but also has the power, under the Education and Inspections Act 2006, to regulate his/her conduct, since the pupil is still, by virtue of the 2002 Act, under its lawful control.

It is doubtful whether the receiving institution has that lawful control and the right to impose sanctions. The situation with a receiving FE institution is even more murky.

Automatic sanctions

It might be possible to have an agreement in which home institutions will automatically impose a sanction on one of its students but it will want to be satisfied that a proper investigation has been conducted and the facts are proved. It may be too simple to take a student off a course. How will the school then meet its obligation to offer an entitlement?

While it may be tempting to imitate an ostrich and hope for the best, by far the better course of action is to make sure that the consortium coordinator addresses these issues and their legal implications (with the aid of the consortium's legal adviser) at the same time as organising the timetable and the minibuses.

The law requires you to anticipate problems that can be foreseen. Taking these steps shows you have foreseen the problem and taken reasonable steps to deal with it.