ADVISING SCHOOLS IS A MULTI-FACETED BUSINESS AND IT HELPS TO BE INVOLVED FULLY IN THE LIFE OF THE SCHOOL, TOM BLASS FINDSSince the passing of the Education Reform Act 1988, local authority schools have been increasingly responsible for the purchase of professional services.

Growing emphasis on standards, league tables and a new stress on partnerships between the private and public sectors have forced schools into becoming discriminating users of the services of private practice law firms, where once they had recourse only to local authority solicitors.In theory at least, this sea-change in the business of education should create an opportunity for lawyers.

Local schools have never been perceived as wealthy, but the average secondary school has an annual turnover of £2 million.

And as for any corporate entity, it is important that schools use all available resources to protect themselves against commercial and other risks.Many of the legal issues facing schools are the same as those faced by any other institution with a similar budget: contracting with outside suppliers, employment issues, IT compliance and financing.But schools are under unique pressures that have been brought to bear since the Education Act 1988: league tables, changes in the way that education is funded, the IT revolution, and pilot schemes such as education action zones - are all part of the framework that lawyers must keep abreast of if they are to work in the education sector.John Hall, a partner at the London office of Eversheds, is one of the country's leading experts on education law.

'I doubt whether most legal practitioners really understand the diversity of skills required to advise education bodies,' he says.

'As well as understanding the provisions of all the relevant Acts and regulatory requirements, you have to be up to date with the politics and culture of the particular sector that you're working in, whether it's a grant-maintained school, further education college or university.

Schools are also very sensitive to many other areas of law such as employment, whistleblowing, and human rights.' Although the ethos of corporate culture has become an important aspect of education, it is the necessarily humane premise underlying schools that offers them some protection from being treated in the same manner as profit-driven entities.

And that has a great effect on the practice of schools-related law.Peter Hawthorne is a partner in the litigation department of London firm Witham Weld.

He notes that education is invariably an emotional business, and that being a legal advisor to a school often involves being a counsellor to the head or to parent governors in a way that involves one fully in the life of the school.

Issues such as admissions - particularly in denominational schools - and, perhaps more acutely, exclusions, often arouse a great deal of feeling within schools and outside of them.

It is these areas that lead most often to judicial review.Increasingly, in the era of league tables, there is an emphasis on judging the 'performance' of schools.

This too, is something that often arouses controversy.

In any event, lawyers have a part to play in the process.

Mr Hall observes that: 'Our education system has lagged behind its competitors and needs to be improved.

This requires efficient management and governance, and good outside professional services.'Richard Gold, partner at London law firm Lawsons says: 'In order to advise schools you have to be able to understand what happens inside them.' Jack Rabinowitz, a partner with London law firm Teacher Stern Selby points out: 'Schools have always had governors who were lawyers, but with the freeing up of schools they have increased their role as general advisers.' Peter Hawthorne is a school governor, which gives him an important insight into the day-to-day issues pertinent to running a school.

He says: 'Sitting on the board of governors of one school can assist other schools that one advises in a professional capacity'.

Hawthorne recently studied for a diploma in schools-related education law that covered not only strictly 'legal' topics but broader issues such as handling grave family crises, religion, and interpreting admissions policy.

He says that acting for schools requires nothing if not a hands-on approach to some key issues.

He says: 'Financing, for example, is a huge problem for schools, as are issues such as whether to seek voluntary contributions from parents'.

He adds that employment law is often particularly sensitive, as schools have a mandate to ensure fairness to staff, but with educational standards as paramount.Clearly, schools will find their need for legal services increasing.

Periodically the media raises the prospect of schools being deluged by litigation, and although lawyers feel that this is an exaggerated prospect, it underlines the growing exposure of schools to the vicissitudes of the consumer culture.

The case of Phelps v London Borough of Hillingdon, which held that students could sue schools for negligence, was overturned by the Court of Appeal (see page 26).

The plaintiff has been granted leave to appeal by the House of Lords, but many maintain that the Lords will be loathe to reverse the Court of Appeal's judgment.Mr Rabinowitz - who represented the plaintiff in Phelps v The London Borough of Hillingdon - says it is feasible to expect 'a quasi-US environment where everyone is looking for a gun to hire'.

John Hall says that at present the Eversh eds education law department mainly handles work for further education colleges and universities.

However, he adds: 'I would imagine our schools-related work growing significantly.

Nowadays there is just so much law involved'.

But the fact that schools are a special kind of client - and that education so often attracts controversy - is perhaps off-putting for some firms.

So far, while education law is a growing area of practice, it is not a growth industry.

Practitioners are few and far between, and their services are marketed by word of mouth, not glossy brochures or mailshots.

This may yet change.

Although the grant-maintained system is being reined in, schools will soon be given greater autonomy with regard to the purchase of professional services than ever before.OVER THE LAST FEW YEARS UNIVERSITIES HAVE EXPERIENCED A SHARP INCREASE IN LITIFATION, REPORTS ALISON CLARKUniversities are more than just educational institutions these days.

They are also major players in the business world, offering rich pickings to lawyers.

Julian Gizzi, a partner in the education department of London law firm Beachcroft Stanleys, says: 'Universities have significant commercial needs, just like any other organisation.

The hallmark of acting for a university is being able to provide a commercial service in what is essentially a business market'.

This market has, in turn, seen a significant shift in the expectations of its consumers, reflected in an increasing number of claims by students against universities in the last five to ten years.There is no simple explanation for the rise, although greater awareness among students of their rights as a result of one or two high profile cases, and the introduction of tuition fees two years ago have had an impact.

Whatever the cause, John Hall, the chairman of the National Education Group of Eversheds, insists: 'The universities are taking the matter seriously and are carrying out a thorough-going review of their internal procedures'.This review has so far involved the committee of vice chancellors, which has looked at new forms of dispute resolution and drawn up guidelines for good practice in universities.

The idea underpinning the exercise is to establish a benchmark against which to judge existing procedures, although Helen Cole, an associate with London law firm John Ford, is dubious about how effective any of the changes will be.

She argues that there is not necessarily anything wrong with the current procedures.

'Most are robust enough,' Ms Cole says.

'The problem is that the hierarchy tends to ignore them.'But Mr Hall of Eversheds, which represents more than 240 further education colleges, accepts the need for an overhaul of some internal procedures, because otherwise there is a danger of an upsurge in litigation.

He insists that the floodgates have not yet opened, but is concerned that the education sector will be undermined by needless litigation, which might have been avoided had the right complaints mechanisms been in place.

He also says the visitor system - an outside body which operates like an ombudsman in the 'old' universities, those which were established pre-1992 - will have to be reviewed.

It is thought that the system might not satisfy the requirements of the Human Rights Act 1998 - scheduled to come into force next year - for an independent adjudicator.Others are more critical still.

Jack Rabinowicz, a partner with London law firm Teacher Stern Selby, wants to see the introduction of a completely new complaints procedure which takes the best from the old system and discards the wo rst.

He is supportive of the visitor system in that it allows some external assessment, but is critical of the fact that the visitor's decision is final.

On the other hand, the 'new' universities do not have a visitor system, leaving students with one option - that of pursuing a complaint of judicial review in the High Court, once the internal procedures have been exhausted.This option also has its limitations, as Clive Romain, a partner with London law firm Bindman & Partners, explains: 'First of all, there are only a small number of cases which can go to judicial review, such as where there has been a clear breach of the law by the university or a failure to comply with its own regulations or a breach of natural justice'.

Secondly, the courts are reluctant to get involved.

The end result is that if, for instance, a student is unhappy with the grade given, he or she cannot challenge the decision in court because judges say it is not their job to mark exam papers.Ironically, some of the steps taken by universities to make their procedures more transparent have had the opposite effect.

One example is the idea of the student charter, which was introduced by the previous government as part of its Charter Mark campaign to make institutions more responsive to their consumers.

Mr Hall concedes: 'The change fuelled a climate of consumer expectation and encouraged more students to seek some form of judicial remedy.' However, he points out that only a few cases have been successful so far.Whether the charter documents encourage or discourage litigation in the long run remains to be seen, but Mr Gizzi reports enormous interest in them among universities.

He is hopeful that they will not lead to a rash of litigation, saying: '[Charters] should help the university to be clear about what it is bound to deliver and the student what he or she is entitled to receive'.

For example, Thames Valley University (TVU) has had a student charter since 1994, which sets out the levels of service TVU aims to provide for its students and the expectations which the university has of them.

The charter is, in effect, a contract between the two parties, setting out the terms by which both are bound.

And therein lies another irony, given that breach of contract is typical of the complaints often pursued by students.Other claims involve disputes regarding grading, allegations of plagiarism, problems with grants, and allegations of discrimination on the basis of race, sex or disability.But that is not all.

Afzal Chowdhury, an associate solicitor with London law firm Gills, pursued a claim on behalf of several Westminster University students last year who complained of a lack of central heating and hot water in their halls of residence.

'They came to us and we threatened proceedings against the university for breach of tenancy,' he says.

'The university settled out of court.'Against this backdrop, it is hardly surprising that the Education Law Association (ELAS), set up in 1992, has reported an increase in membership.

Its treasurer, Richard Gold explains: 'There was a perceived need for an organisation that treated education law as a specialist area'.

It now has a mixed bag of more than 300 members, including lawyers, advice workers, voluntary organisations, educational psychologists and trade union members.

The ELAS expects this number to increase as more specialists become interested in an area of law which is clearly ripe for expansion.For additional information, contact Anthony Woodard at the ELAS; tel: 01293 822923.VERONICA COWAN LOOKS AT THE ROLE OF EDUCATION LAW SPECIALISTS WHEN CRIMINAL CHARGES AFFECT THE SCHOOLS THEY ADVISEIf the infamous schoolmaster, Wackford Squeers, in Charles Dickens's Nicholas Nickleby, was around today his pupils would probably accuse him of assault and the police would be paying a visit to his school, Dotheboys Hall.Caning has been abolished in both state and independent schools, but allegations of assault can arise in other contexts.

For example, a teacher who intervenes in a fight between two pupils and manhandles the protagonists in the process, may end up being accused of assault.

There is also an increasing number of cases where sexual abuse is alleged.

Fraud may also feature, with allegations of embezzlement of school funds.

A spokeswoman at the Department for Education and Employment said it does not have figures on the numbers of teachers facing prosecution for alleged criminal misconduct.

The department maintains and publishes a list of people banned from working with children - List 99 - held by local education authorities and associations representing independent schools.

Anyone convicted of a sex offence is put on that list.Whether or not specialist education law solicitors become involved in a matter involving criminal allegations - rather than referring it to criminal practitioners - depends on the nature of the crime.A distinction must be drawn between an accusation against the school as a body and one against a teacher in a personal capacity.

If prosecution is of a teacher for a school-related incident, the teacher can turn to the union for help, or may be eligible for legal aid.

The National Union of Teachers has specialist education lawyers, but a spokeswoman said it might still refer cases to outside solicitors.

It depended on several factors, including the nature and complexity of the case and the length of time it was likely to run.

There were no hard and fast rules on whether to use education or criminal lawyers, but any referral might be to a firm specialising in criminal law, because education law input is already present in-house.Education law specialist at London firm Teacher Stern Selby, Jack Rabinowicz, said outside solicitors might also become involved if the union's lawyers were representing more than one teacher at a school, and there was a risk of a conflict of interest.

Some education specialist firms also have criminal law specialists.

Others, such as Teacher Stern Selby, have informal referral relationships with firms specialising in criminal law.

Education lawyers may also be called as expert witnesses in criminal cases.Pupils are also the target of criminal charges, for example, carrying an offensive weapon at school, possessing drugs or assaulting another pupil or teacher.

Schools can become directly involved in prosecutions in limited circumstances, under the Education Act 1996.

These include prosecuting parents for breach of school attendance orders and failure to co-operate in a special needs assessment.

In such cases, education law specialists often act for parents.For example, if a state school is prosecuted under the Health and Safety at Work Act 1974, the local authority's solicitors are likely to be involved.

Practice varies throughout the country, but Julia Russell, principal solicitor at West Sussex County Council, says it was not cost-effective to involve outside solicitors.

If the local authority had to brief counsel in such a case she said it would most likely be a specialist in education or local authority law, rather than a criminal lawyer.A potential market in the state sector may be opening up for solicitors as a result of the School Standards and Framework Act 1998.

Robert Boyd, a partner at Bristol law firm Veale Wasbrough, explains: 'Local authorities currently hold back a percentage of the school's budget for services such as legal advice, so the school generally has no budget of its own for such advice.

However, from April 2000, local authorities will have to release the whole budget, which means the schools can go to the market for legal advice if they wish'.

However, he predicts that it will not be a particularly large pot of money, given the other demands on the budget.Mr Boyd is the author of a book on independent schools, and his firm advises more than 500 such schools.

He points out that state schools are strictly regulated and subject to public law remedies, whereas private schools are self-regulatory and not generally subject to the education legislation.

They can set their own policies and procedures and the relationship is based on the contractual relationship between the school and parents, and the duty of care to pupils in tort.

The school might turn to its solicitors for advice on how to handle allegations against teachers or pupils.

In less serious cases of misconduct, the matter might be resolved internally, although in more serious cases, the police and social services may be involved.

State schools do not have this choice and must now follow the guidance issued by the Department for Education and Employment.Edward Brown of Leeds law firm Ford & Warren says: 'Most education lawyers will give a full service, but in some areas it will not include certain aspects of crime,' he says.

'For example, with drugs, they will turn to us, but if there is violence it may be more appropriate for the pupil to be separately represented by a criminal lawyer.' This is to avoid conflicts of interest, because the parents might seek to blame the school, which would then need legal advice on how to handle the matter.

Where the school was charged under statute, such as the Health and Safety at Work Act, education lawyers would probably handle that themselves.Grant-maintained schools are the responsibility of the Secretary of State for Education and might have different funding arrangements to other state schools.

Some lawyers who act for independent schools also advise them.

There is also a body called the Grant Maintained Schools Centre in High Wycombe, which has a legal advice line.

If it is unable to help the school, it will call on solicitors.EDUCATION LAW: RECENT DEVELOPMENTS, BY JACK RABINOWICZEducation continues to be an area of high political and legal activity.

Since the general election there have been four major pieces of legislation, with more likely to follow.

The Human Rights Act 1988 will probably also affect education, especially in the light of Osman (Osman v United Kingdom ECHR The Times 5 November 1988).

Lawyers' interest in education law issues is apparent from the existence of two specialist law reports covering this area - published separately by Jordans and Sweet and Maxwell.

The Education Law Association now has more than 400 members.

For membership details; contact Anthony Woodard, The Education Law Association, 29 South Drive, Ferring, Worthing, West Sussex BN12 5QU.The main areas of contention during the last year have been in relation to negligence and exclusions from schools.

Perhaps the most significant recent decision is Phelps v London Borough of Hillingdon [1999] 1 All ER 421 Court of Appeal, where the Court of Appeal reversed the decision of the trial judge ([199 8] ELR 38 Garland J) who had awarded compensation to a former pupil who was dyslexic and whose problems had not been recognised in school by the educational psychologist.

The decision of the lower court in Phelps had relied upon a House of Lords judgement, X v Bedfordshire [1995] 2 AC 633, which on hearing applications to strike out such claims for showing no cause of action,had allowed these cases to proceed to trial.

In the X v Bedfordshire judgement, Lord Browne-Wilkinson, who gave the leading speech, said that: 'In my judgment a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs.

The education of the pupil is the very purpose for which the child goes to school.' ([1995] 2 AC 633 at page 763).However, in Phelps the Court of Appeal determined that X v Bedfordshire was in effect wrongly decided, on the basis that the evidence presented at trial in Phelps controverted the assumption made by the House of Lords X v Bedfordshire that educational psychologists have a duty of care to individual pupils (see at page 437-438).

The Court of Appeal in Phelps also dismissed the idea, which had been accepted by the Court of Appeal in an earlier judgment on the Bedfordshire case (E v Dorset CC [1994] 2 WLR 853 CA), that damages would result in an appropriate case and that it would be possible to establish the link between any breach of duty (if it existed at all) and any loss.

A petition for leave to appeal Phelps has been lodged in the House of Lords and a decision is awaited.The Court of Appeal's decision in Phelps would affect not only claims arising out of the non-diagnosis of dyslexia or the failure to provide appropriate support for such pupils.

The case would also affect possible claims by, for example, autistic pupils whose condition was not recognised or pupils at so called 'failing schools' who might have achieved more.As a consequence of this decision, the Legal Aid Board has put a moratorium on additional work in respect of these cases.

In one case, the defendants sought to strike out the proceedings in the light of the judgment in the Court of Appeal.

The judge refused the application pending the decision by the House of Lords (Jarvis v Hampshire CC (unreported) 2/99).

As mentioned, the introduction into UK Law of the European Convention of Human Rights could mean in any event that the decision by the Court of Appeal in Phelps cannot stand for subsequent cases and might widen claims to allow for breach of statutory duty.

In X (above), the House of Lords rejected claims for compensation arising out of breach of duties under the Education Acts.

In Osman (above), the ECHR held that the police were not immune from such a claim.The same court dealt with Anderton v Clwyd County Council [1999] ELR 1 CA.

This was another educational negligence case involving a dyslexic child.

The issue here was whether pre-action discovery was possible in this type of litigation which would mean that these actions would be similar to personal injuries claims.

This would also clarify whether the limitation period applicable was three years - as for personal injuries - or six years.

The court held that the 'injury' suffered (if any) was not akin to a 'personal injury' (see 34(1) Supreme Courts Act 1981 and RSC Order 24(7)).

If this decision stands - and Anderton may also be going to the House of Lords - then the appropriate time period may be six years.There have been a number of significant decisions in connection with special educational needs during the past twelve mo nths.

In Burridge v London Borough of Harrow [1998] ELR 351 CA, the Court of Appeal held that a parent's right of preference for a maintained school for their special educational needs (SEN) child were equivalent to the provisions for non-SEN pupils (see s.411 Education Act 1996).

A parent was entitled to choose an out-of-borough school for a child unless such a school would be an inefficient use of resources.The court also held that the test for resources was the same for both ordinary and SEN admissions.

The courts have now developed the concept of 'over-provision' in SEN, that is to say that even though the LEA's suggested arrangements are inadequate, the parents' alternative option is too much and therefore unnecessary (see Richardson v Solihull MBC [1998] ELR 319).

Curiously, in these circumstances the tribunal need not tell the parties that it is unhappy with either proposal and suggest an adjournment; it can reject the appeal albeit with suggestions as to possible ways forward.

The powers of the tribunal to strike out inappropriate appeals have been clarified (White v Aldridge [1999] ELR 58); and the relevance of section 9 of the Education Act 1996 which provides the general principle of applying parental wishes to education decisions has been considered as a possible 'tie-breaker' where the prospective arrangements are equal in both suitability and cost (Catchpole v Buckinghamshire CC [1998] ELR 463 Laws, J and the Court of Appeal (unreported) 10 March 1999).In exclusions, the courts have intervened by way of judicial review (ie, a public law remedy) in the case of an assisted school placement where the independent school sought to exclude the pupil for academic under-performance (R v Cobham School ex parte S [1998] ELR 389).

In two separate cases the courts gave helpful guidance for schools in exclusion cases.

In one case the issue related as to the methodology of determining the culprit with the judge referring to the 'over-riding principle' that the pupil must be given a fair opportunity to exculpate himself (R v Roman Catholic Schools ex parte S [1998] ELR 304).

This seems to import quasi-criminal considerations into the exclusion process if the process is to be considered fair (R v Governors of Bacon's City Technology College ex parte W [1998] ELR 488).Similarly, the courts criticised another school for not providing sufficient reasons for the decision to exclude, for not providing adequate information to the parents to enable them to present their case and questioned whether excluding one pupil where many pupils were involved in the incident was 'proportionate' or fair.Reforms to the current arrangements for exclusions are envisaged in order to simplify the process.

These recent decisions which emphasise the importance of fairness could become increasingly important.

Exclusions are becoming more frequent despite attempts to dissuade schools with one hand, but watering down the guidance protections on the other (Circular 10/94 talks of permanent exclusion as the final sanction.

The government proposes to replace this circular with a less rigid (for schools) arrangements).

The courts however seem to regard the protections afforded as similar to those available to defendants in criminal prosecutions.

The Human Rights Act should further support such protection and the Act's implementation is likely to be the most interesting development during the next year.