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4 Jun 2015

Alternative Dispute Resolution

Following publication of the Alternative Dispute Resolution (ADR) Directive and the Online Dispute Resolution (ODR) Regulation in July 2013, the government is in the process of transposing the requirements into national law.

BIS and DfE have been in touch with ISC to discuss how the new requirements will affect schools. As the requirements apply to contracts for services, fee paying schools will fall within their scope. Broadly this means:

  • From 9 July 2015, once the school’s complaints procedure has been exhausted, parents must be notified (in writing) that the school cannot settle the complaint and signpost them towards a certified ADR provider stating whether or not the school intends to use ADR in that particular instance.
  • From 9 January 2016, schools that sell services online must signpost to a European Online Dispute Resolution platform.

Use of ADR by schools and parents is voluntary; however schools must provide information to parents even if they do not intend to use ADR. ADR decisions will be binding on the school where this is agreed between the ADR provider and the school. Ombudsman Services have publicly stated that they will offer ADR across all sectors not covered by statutory schemes.

ISC is working with DfE and BIS to produce an FAQ document for schools on the impact of the new requirements. Schools with specific queries should send these to legal@isc.co.uk.

Consumer Credit

Recent changes to consumer credit legislation mean that greater flexibility will be afforded to schools wishing to rely upon the ‘instalment exemption’ with regard to the deferred payment of termly fees (and, by so relying on the exemption, avoid the need for FCA authorisation for such deferred payment arrangements). Up until 17 March 2015, one of the requirements for the exemption was that the deferred amount was paid in no more than four instalments. Since 18 March, the limit to four instalments has been increased to twelve. Farrer & Co has produced a note on the changes.

The duty to have regard

In a recent case involving the London Oratory School and the Schools Adjudicator, the High Court found that the duty ‘to have regard’ to guidance requires that guidance is taken into account, and for there to be ‘clear’ reasons for any departure from it. The clear reasons must 'objectively be proper reasons, or legitimate reasons' but they do not need to be ‘compelling’ given that this "introduces a subjective ingredient which is stronger even than ‘good’ or ‘cogent’, and again places the bar far higher than is appropriate in this context”.

View the full judgment here.

Statutory guidance

In March the Department for Education published revised versions of Keeping Children Safe in Education and Working Together to Safeguard Children. They have also published some advice documents on What to do if you’re worried a child is being abused, Safeguarding practitioners: information sharing advice and Data protection for schools considering cloud software services.

Veale Wasbrough Vizards (VWV) has produced a note setting out the main changes and points of interest.

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