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Welcome to our CISC Leadership briefing 2017 21 September 2017. Agenda. Welcome and introductions – Kingston Smith Legal updates – Stone King Strategy and affordability – Kingston Smith Safeguarding – Stone King Fundraising and GDPR – Kingston Smith Fundraising and Management
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Welcome to our CISC Leadership briefing 2017 21 September 2017
Agenda • Welcome and introductions – Kingston Smith • Legal updates – Stone King • Strategy and affordability – Kingston Smith • Safeguarding – Stone King • Fundraising and GDPR – Kingston Smith Fundraising and Management • Group discussion
Neil Finlayson, Head of Not-for-Profit and Education, Kingston Smith • As Head of our dedicated not for profit sector encompassing charities, schools, membership bodies and trade associations, Neil has worked with a wide range of charities for more than 25 years and is passionate about the sector. He has extensive experience of running both fundraising and grant-making charities, and has built up an unparalleled knowledge of the issues facing charities, schools and religious organisations. He has a particular interest in international charities, especially those who work to promote long-term sustainable development and he also acts for a significant number of religious and faith sector clients. • In his role as head of Kingston Smith’s Education Sector Group, Neil is involved with and advises many of the sector advisory bodies, including the Girls’ School Association and the Catholic Independent Schools Conference for which we also act as auditors. In addition, he provides technical advice to the Independent Schools’ Bursars Association. • Neil helped to establish and continues to lecture on the MSc in Charity Finance, Grant-making and Fundraising course at Cass Business School at City University, the only course of its type in the country. He was one of the founding members of the Charity Finance Group, regularly contributing to their handbook, and is a former trustee of the youth homelessness charity Centrepoint. Neil is also currently a non executive director of a medical grant making charity, which he helped set up. • In addition to his sector expertise, Neil is well-known for his supportive, patient and calm persona. He is an excellent listener who works in partnership with his clients, getting involved in advising across a wide range of business issues. He is also always willing to be a sounding board, providing his clients with ideas, adding value through innovative and constructive advice.
Anjali Kothari, Partner – Charities and Education, Kingston Smith • Anjali’s in-depth knowledge and expertise in the critical issues facing organisations within the not-for-profit sector is supported by her having spent the past 17 years’ advising to numerous charities and education institutions. Making it her mission to identify and raise potential challenges and risks at the earliest possible stage, Anjali is relied upon by her clients to advise them on all aspects of fulfilling their goals and ambitions. • A true specialist in the charity and education sectors, and counting independent schools and academies amongst her clients, Anjali has extensive commercial experience and has also advised a number of charities on tax implications and setting up external trading activities She was also historically involved with the old grant-maintained schools before they were abolished and is well versed at liaising with government bodies, including more recently for a number of charities that have assumed services from local authorities. • Anjali regularly provides training for finance directors, bursars and trustees for clients and non clients through seminars as well as regularly speaking at events including those hosted by the Girls Schools Association. She is the former President of the Haberdashers’ Aske’s School for Girls’ Old Girls Committee and is the current treasurer and executive member of the Charity Law Association, in addition to holding a number of other voluntary roles. Anjali also sits on Kingston Smith’s Executive Board.
Dan Fletcher, Deputy Director, Kingston Smith Fundraising and Management • Dan has a broad background in fundraising and voluntary income generation from individuals, companies, grant-making trusts and statutory bodies. From 2011-14 he ran his own fundraising and management consultancy, Delta Fundraising, where he worked with national charities such as NCVO, The King’s Fund, Circulation Foundation and Royal Artillery Centre for Professional Development, and more regional ones including Rennie Grove Hospice Care, Hertfordshire MS Therapy Centre, and Viewpoint-Herts. • Prior to this Dan’s career focused on health charities, but he is experienced in helping not-for-profits from other sectors go through change as they improve their fundraising capacity. He started out as a food scientist for Nestlé, building on his BSc(Hons) in Molecular Biology and Biochemistry, but moved into the charity world in a communications role for an international Christian development charity. Dan then moved to what is now the Epilepsy Society, growing their individual fundraising programme, including legacy marketing and membership schemes. Since 2000 he has been the most senior fundraiser and often the first person to hold that post at two hospices, an NHS charity, a national homelessness charity and a health think tank. • These roles have qualified Dan to help charities by rapidly assessing their needs and proposing both short and long-term solutions. Over the years, he has used his broad experience to hold voluntary roles with the Institute of Fundraising, including Chair of the Corporate Fundraising group; Treasurer of the Hospitals Fundraising group; and Secretary of the London Region. He also previously acted as Vice Chair of Remember a Charity. Currently, he sits of the Institute’s Learning and Development Committee, is Treasurer for its Cultural Sector Network and is a trustee for Rethink Mental Illness. He holds a Diploma in Fundraising from the Institute.
Stephen Ravenscroft, Partner, Stone King • Stephen heads our Independent Schools practice. Having trained with Nabarro Nathanson, Stephen qualified in 1997 and has specialised in charity and education law since. He joined Stone King in 2006 as a partner. His work for schools spans the independent and state funded sectors, having been involved with academies since the very start of the programme. • Over the last few years, Stephen’s work has increasingly involved advising independent schools on a wide range of matters. His work in particular draws upon his charity background, with a focus on governance, charity trading and Charity Commission regulation and compliance, as well as advice in connection with the disposal, acquisition and merger of schools. • Stephen recently lead on the merger of three independent schools, liaising with the Charity Commission to obtain necessary approvals, and providing governance and strategic advice in relation to issues such as the management of conflicts of interest. Stephen has also advised on a number of school international projects. • Stephen is governor of two independent schools which have recently merged. • "His gentle persona is a great benefit when meetings are volatile and his steely determination is a real asset." - Chambers UK Guide, 2017
Helen Tucker, Partner, Stone King • Helen is a partner in our Independent Schools Team. Prior to joining Stone King, Helen was Head of the Education Sector Team at Ashfords solicitors, and Head of Legal for The Girls’ Day School Trust. Helen also recently completed her tenure as Chair of Governors at a school in Bristol. Prior to moving into education law, Helen was a Senior Litigation Associate at Herbert Smith. • Helen advises independent schools on issues including strategic review papers for trustees, complex child protection cases, educational negligence claims, mergers and acquisitions, reputation management and data protection including responding to the IICSA. Helen is currently leading the project in relation to the disposal of an independent school from a group of schools, and has recently advised in relation to the merger of 3 independent schools. • “We have recently started engaging the services of Helen Tucker for specialist advice and have been hugely impressed with the clarity and depth of the advice received.” - David Chambers, Bursar, Blundell’s School HMC • “Helen Tucker’s team …is noted for its ‘very high-quality service, well-pitched advice and quick response times'. Tucker is ‘extremely thorough', and has ‘a real practical understanding of how schools function.” – The Legal 500
Harriet Broughton, Associate, Stone King • Harriet is an experienced employment lawyer, working primarily within the independent schools team. • Her recent work has included advising and supporting the governing body through a discrimination grievance brought against the Head Teacher, defending a school in employment tribunal proceedings for unfair dismissal and disability discrimination, and advising schools in relation to consultants including visiting music teachers and sports coaches. • Harriet also regularly advises in relation to school sales and mergers, and in particular the application of TUPE and ancillary issues like pensions and communications. Harriet has also advised on post-merger employment law issues, such as in relation to the future provision of catering services further to the merger of three independent schools. • Prior to joining Stone King in January 2017 she worked in regional firms in Bristol, predominantly advising SMEs in the Business Sector giving her experience of the employment law elements of commercial mergers, acquisitions and transactions. • Harriet is a member of the Employment Lawyers Association and is ranked in Chambers UK Guide 2017 as an “Associate to watch”.
Legal Updates Stephen Ravenscroft, Helen Tucker and Harriet Broughton 21 September 2017
Key Contacts Stephen Ravenscroft – Partner 0207 324 1732 / 07971272008 shr@stoneking.co.uk Helen Tucker – Partner 01225 326 723 / 07773 948325 HelenTucker@stoneking.co.uk Harriet Broughton – Associate 0207 324 15556 HarrietBroughton@stoneking.co.uk
Legal Updates - overview • Public Benefit • Debt Recovery Pre-Action Protocol • Tips from Case Work • GDPR • Employment law update
Public Benefit • Green paper • Charity Commission Guidance • House of Commons Briefing Paper (19 September 2017) • Current status
Debt Recovery Pre-Action Protocol • 1 October 2017 –new Pre-Action Protocol for Debt Claims • Civil Procedure Rules which are intended to ensure cases are dealt with “justly and at proportionate cost” • Heavier burden on parties to a dispute to resolve issue before a court claim is issued • Non-compliant party could be penalised
Debt Recovery Pre-Action Protocol Procedure: • Letter before claim • Written agreement (the parent contract) • Information sheet • Reply form • Financial Statement • Statement of account for the debt • 30 days for response • Disclosure • Consider Alternative Dispute Resolution • “Take stock” – 30 day pause
Parent contract termination • On what grounds does the contract allow the school to terminate? • Express clause? • Unreasonable conduct by parents? • Required withdrawal vs exclusion • Implied term of trust and confidence • Requirement for review?
Example clause The Head may in his or her discretion require you to remove your child from the School if the Head considers that your behaviour or conduct (or the behaviour or conduct of one of you) is unreasonable, and/or adversely affects (or is likely to adversely affect) your child’s or other children’s progress at the School, or the wellbeing of School staff; and/or brings (or is likely to bring) the School into disrepute; and/or is not in accordance with your obligations under this contract…
Tips from Case Work Subject Access Requests • Checking appropriate consents • Agreeing the scope • Hardcopy documents and the relevant filing system • Intelligible form • Time limit / fee / consents • Third Party Data and exemptions • Presenting the response
GDPR • Compliance by May 2018 • New Data Protection Act • Steps to take now: • Document data held, where it is from and how it is shared • Review privacy notices • Check procedures for individuals’ rights • Subject access requests • Lawful basis for processing • Review consents • Review procedures for data breaches • Privacy impact assessments
Employment law update • Risk management from Employment Tribunal changes • Suspension of staff • Religious discrimination in the workplace.
Employment Tribunal Fees • R (on the application of Unison) v Lord Chancellor [2017] UKSC 51 • Supreme Court decision declaring fee regime unlawful – it effectively prevented access to justice and should be quashed • All ET and EAT fees paid since 2013 to be reimbursed • Decision likely to lead to an increase in claims
Suspension Agoreyo v London Borough of Lambeth • Teacher suspended following three incidents of using force with a child. • The employee resigned immediately, and subsequently brought a breach of contract claim (constructive dismissal). She had only been employed for 5 weeks. The court found in her favour. • In practice, where faced with a serious conduct issue, whether or not it’s safeguarding related: • Don’t assume suspension; • Give the employee as much information as possible; • Undertake an assessment as to the appropriate next steps should be, and suspension should only be used when all other options have been exhausted; and • If deciding to suspend, make sure the above two points are recorded in the suspension letter.
Monitoring of personal communications • Barbulescu v Romania [GC] no. 61496/08, ECHR 2017 • Article 8: everyone has a right to respect for his private and family life, his home and his correspondence. • Employer had policy that said the internet should not be used for anything but work and that they would monitor work. • Employer reviewed content of work and personal yahoo messenger accounts, and subsequently dismissed employee. • Court found that employee has reasonable expectation of privacy and employer should not have read contents of the communications because the employee had not been told this would happen. • Key points: • Should have clear policy about monitoring, including content of correspondence; • Any monitoring should balance the employee’s right to privacy and any legitimate reasons for monitoring either communications or their content. • Wherever possible limit monitoring to what is absolutely necessary.
Religious Discrimination • Gareddu v London Underground Ltd UKEAT/0086/16 • Refusal to grant 5 weeks consecutive annual leave to attend religious festival was not discriminatory, as belief was not genuinely held, and no religious requirement to attend festivals • Achbita and another v G4S Secure Solutions (C-157/15) • Employer had a policy of banning all visible religious, political or philosophical symbols. The ECJ decided this was not direct discrimination as it affected all religions equally. • Would likely amount to indirect discrimination – national court must determine whether appropriate and necessary. They added that a policy of neutrality in customer facing roles must be regarded as a legitimate aim. • Bougnaoui and another v Micropole SA (Case C-188/15) • Employee dismissed because a customer objected to her wearing a headscarf. The ECJ found that this was direct discrimination. • The court found that the customer’s objection to headscarf cannot be genuine and determining occupational requirement.
Strategy and Affordability Anjali Kothari Partner – Education & Charities Kingston Smith
Background • What are the current issues facing the sector today ? • Regulation • Increasing Costs • Brexit and uncertainty • Or my favourite • Affordability and pupil numbers
Daily Telegraph 2015 Carried out by stockbrokers Killik & Co and the Centre for Economics and Business Research • Cost of private education nearing £1 million, study finds Professional families risk being "priced out" of private schooling, as school fees are at their least affordable in five decades, a new study has found. • A-level league tables: tables released today by the Department for Education reveal A-level and equivalent results for examinations taken in summer 2012. The cost for middle-class parents hoping to send their children to private school is set to near £1 million, as fees are the least affordable in recent memory Photo: Charles Robertson/Alamy The research took a hypothetical family with two or more children attending private schools and found that the cost for children starting school in 2013 and 2015 would run to £890,000 “if current trends persist”. This represents an increase from £831,000 calculated a year earlier
Affordability of private education • Studies • Baines Cutler survey 2017 • ISC Report • Various reports issued by Legal firms and investment firms • All of them with the same message – fees are becoming unaffordable. • What has happened to the middle ground – where are the lawyers, accountants and doctors?
Additional Pressures – For Schools • Increased competition • Academies - Traditional market being lost to up and coming academies. • New Schools – investment from abroad. Commercial schools not charities. Cheaper? • Group schools – shared costs advantages • External Factors • Increased cost pressures • TPS • Regulation/Tax • Government Policy • Bad Press – 1 bad story taints all schools
Additional Pressures for Parents • Financial – salary growth, tax planning limited, reliance on family money now limited • Asset rich and cash poor – difficult releasing the equity • Brexit – uncertainty is fuelling parents to re think private education • Ethical decisions on sending 1 child to private school? • Is the combination of academy education plus tutors more palatable?
Workshop • 2 Areas where we have seen significant impact • Detailed financial modelling • Strategy reviews
Strategy • How many you have a strategy document? • When was it last updated? • Who has it been communicated to? • List out your first 3 strategic priorities ?
7 S’s • The point of the model is to show you the interconnections of all the key areas of a school. At the heart of the diagram is shared values. • In order for a school to function effectively and efficiently there has to be alignment between all these areas. • In our experience Schools tend to touch on all these areas, however we find that some of these are tackled in isolation, there is a lack of alignment or connectivity between each one or the process if undertaken is simply forgotten and is not revisited.
The 7 S’s Shared values Staff • This means the numbers and types of personnel within the organisation. Are there any open positions that needs to be filled? How many employees are not being utilised. • The norms that guide behaviour within the organisation Systems • Systems pertain to procedures, processes and routines that characterise how the work should be done: financial systems; recruiting, promotion and performance appraisal systems and information systems. What procedures, processes and routines does the organisation use to keep on track. Skills • This represents the distinctive capabilities of the personnel or of the organisation as a whole. How to monitor the skills sets of employees and what kind of training do they require to improve their performance? Style Structure • Cultural style of the organisation and how key managers behave in achieving the organisational goals. Do managers show effective leadership and are they able to motivate employees to work better? • Structure means the way in which the organisational units relate to each other. What is the span of management and what are the lines of communication?
Contact details • Anjali Kothari • Partner – Education and Charities • Kingston Smith • Tel. 020 7566 3656 • akothari@ks.co.uk
Safeguarding Helen Tucker and Harriet Broughton 21 September 2017
Key Contacts Helen Tucker – Partner 01225 326 723 / 07773 948325 HelenTucker@stoneking.co.uk Harriet Broughton – Associate 0207 324 15556 HarrietBroughton@stoneking.co.uk
Safeguarding “Protecting children from maltreatment; preventing impairment of children’s health or development; ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and taking action to enable all children to have the best life chances.” Working together to safeguard children (2015)
Key principles • Effective whole school policies and procedures + follow and monitor impact • Child-centred approach; child’s needs are paramount • Aware of wider context of safeguarding • Appropriate information sharing between professionals and local agencies essential • When to speak to the LADO • Review outcomes and follow up with Social Care if not improved • Note taking – clear objective contemporaneous notes of decisions taken / advice received, recorded on a confidential record to show safeguarding procedures are being appropriately followed.
Allegations against staff • Behaved in a way that has harmed a child, or may have harmed a child; • Possibly committed a criminal offence against or related to a child; or • Behaved towards a child or children in a way that indicates he or she would pose a risk of harm to children.
Allegations against staff • Duty of care to their employees • Provide effective support for anyone facing an allegation and provide a named contact if suspended; • Allegation of abuse should be dealt with quickly, in a fair and consistent way that provides protection for the child and supports the person who is the subject of the allegation.
Allegations against staff • Head Teacher and Designated Officer – are criteria met? • Confirm next steps with LADO (inform police? Inform parents?) • With guidance from LADO (and police if relevant) speak to member of staff • Confidentiality: information shared only on a “need to know” basis. • Consider suspension - risk assess; suspension should be a last resort. • With approval of the LADO and the police, the school should undertake its own investigation, to determine any appropriate disciplinary action. • The school should follow its normal disciplinary process and procedure. • If the employee resigns prior to the conclusion of the disciplinary process, then the school must continue with the process and reach a conclusion. • Settlement Agreements should not normally be used.
Reporting Obligations • Disclosure and Barring Service • NCTL • Charity Commission • Insurers? • Member organisations • Parent community??? (caution!)
IICSA • Policies and Procedures • Retention of documents • Insurance position
Steps on receipt of a letter from the Inquiry • Identify key contact at the school and team who will manage the response • Identify any others who need to be informed and who may need to undertake a search • Acknowledge request, clarify any uncertainties • Set out search parameters, consider what steps can reasonably be taken • Comply with your reporting obligations • Report to insurers • Deal with any data protection and confidentiality concerns • PR and communications planning
Scenarios A Chair of Governors needs advice. The IT technician has reported that as part of routine maintenance of a senior member of staff’s work phone, he has found that he has been accessing pornographic sites. What steps should the school take? What issues or questions arise?
Scenarios A head asks for advice on a disclosure made by a Muslim pupil. She has told a teacher that she is going to Saudi Arabia with her family at the weekend and is excited because she will see her prophets and get married. She makes various other disclosures about an unsettled home life, and issues with her sibling. What issues arise and what steps can be taken?
Scenarios A school is informed by a parent whose daughter left the sixth form the previous year that her daughter is in a relationship with her former teacher who still teaches at the school. She thinks that the relationship started when her daughter was still a pupil at the school, and that the teacher may have been grooming her. What steps should the school take? What if the child was younger?