Education by Right? Breach of the Duty to Provide ‘Sufficient’ Schools
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02834.x |
| Published date | 01 July 1990 |
| Date | 01 July 1990 |
| Author | Neville S. Harris |
Education Right? Breach
of
the Duty
‘Sufficient’ Schools to Provide
Neville
S.
Harris”
Is
there a legal right to education in England and Wales? At
a
time of increasing emphasis
on consumer rights in the education system, expressed in recent legislation,’ this most
basic and fundamental of questions has been largely overlooked
-
at least until the recent
case of
R
v
Inner London Education Authority ex parte Ali and Murshid2
focused
attention upon it.
The
Ali
case is the latest in a series over the past
20
or
so
years concerned not
so
much
with the right to education as such, but rather with the extent of local education authorities’
(LEAs’) duty to provide ‘sufficient schools’ under section
8
of the Education Act 1944
(the 1944 Act) and the scope for judicial intervention in respect of an alleged breach.
The broad context to the case is the difficulties faced by LEAs in maintaining an education
service in the face of substantial teacher shortages. Throughout the country there have,
over the past few years, been repeated incidences of children sent home from school because
of
the shortage of teachers
-
especially, but by no means exclusively, in the South-East
of
England, and in inner London in parti~ular.~ The government has instituted various
measures to aid the recruitment and retention of teachers. The licensed teacher scheme
aims to recruit mature (over
26
year old) persons into tea~hing.~ Moreover, various
features of the new arrangements for teachers’ pay and conditions being brought into effect
in stages from
1
April 1990 onwards are designed to aid recruitment. There will,
inter
alia,
be an additional 14,400 incentive allowances5 available for allocation, a local
*School of Law, Social
Work
and Social Policy, Liverpool Polytechnic.
The Education Reform Act
1988
has instituted various reforms, such as local management of schools
(‘LMS’), which are designed to make the education system ‘more responsive to
. .
.
clients,’ which include
‘parents’ and ‘pupils’ (DES Circular
7/88
Education Reform Act: Local Management
of
Schools,
para
9).
It has given parents a right to ballot
on
whether a school should opt out of local authority control and
become grant-maintained, has provided for a new local complaints machinery in respect of the school
curriculum and, via regulations, given parents and older pupils access to individual school records. It
builds
on
the Education Act
1980,
which provided for parent governors and gave rights of appeal over
school admissions; regulations
(SI
1981
No
630)
provided for publication of information about schools
which parents could read before choosing a school. The Education Act
1981
sought to involve parents
in decisions relating to pupils with special educational needs, and gave appeal rights. The Education
(No
2)
Act
1986
increased parental representation
on
governing bodies, gave appeal rights in respect of a decision
not to reinstate a pupil permanently excluded, and provided for an annual parents’ meeting and report
from govenors to parents.
(1990)
The Times,
21
February and
The Guardian,
8
March
1990
(DC).
In
1989,
Greater London as a whole had three times, and inner London four times, the national average
of unfilled teacher vacancies:
liiird Report of the Interim Advisory Committee
on
Teachers’ Pay and
Conditions,
Cm
973,
January
1990,
para
3.16
and Appendix C, Tables
16
and
19.
The licensed teacher scheme came into operation
on
1
September
1989.
It is intended to provide a more
direct route into teaching for mature persons with appropriate experience and qualifications, but has been
criticised by teacher unions for compromising professional standards, by allowing unqualified persons
into classrooms to teach. It also enables certain teachers trained overseas to gain qualified teacher status
after as little as one term’s service. The scheme is contained in Schedule
4
to the Education (Teachers)
Regulations
SI
1989
No
1319.
See further
N.
Harris,
The Law Relating to Schools
(Fourmat,
1990)
There are five rates of incentive allowance, A-E, which can be allocated by a school’s governing body
to teachers
on
the ‘standard national scale.’ These allowances run from
f925
(A) to
f5,088
(E).
In
addition
to reflecting the responsibility attached to a particular teacher’s role within a school, they are said to
have a broader purpose, in enabling teachers with special skills or outstanding teaching ability to be
appropriately rewarded. They may also be used to attract those with specialisms which are in short supply,
currently mathematics and modem languages, or where the post is difficult to
fill.
There are, however,
pp
66-69.
525
The Modern Law Review
53:4
July
1990 0026-7961
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