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Only general further education colleges and sixth form colleges are within the scope of the area review process. Other independent providers can seek to opt into the process with the agreement of the local steering group.
Although the area review process is compulsory for general further education colleges and sixth form providers, colleges should use it to take advantage of the opportunities that the process may provide. The aim of the review is to "provide an opportunity for institutions and localities to restructure" so active participation should assist the college in achieving its objectives and further enhancing the student experience.
Our recommendations are to:
Ultimately, governors are solely responsible for the operation and strategy of their institution and cannot be forced to comply with the outcome of the area review process. As charity trustees, governors should consider the recommendations alongside their responsibilities to ensure that the institution achieves the best possible outcomes for its beneficiaries.
The guidance stipulates that "in considering the outcomes of reviews, it is important that college governors give careful weight to the long term stability of their institution". If governors do not implement the recommendations, they must be able to justify this decision on this basis (and evidence it through detailed minutes). In the majority of cases it will be difficult for a college to simply reject the proposals without good reason.
Since 31 March 2012 the governors of a general further education college have had the power to modify and replace the instrument and articles of government, provided that they consult with any persons who are likely to be affected by the proposed changes and that no changes are made which would result in the college ceasing to be a charity. We recommend that colleges take advice before making any such amendments.
The position for independent providers will depend on their individual constitution and structure.
You can complain about an Ofsted inspection report (and may also have grounds to challenge a report by way of Judicial Review proceedings) if you think there was a problem with:
You should raise any concerns during the inspection by speaking to the lead inspector, or if you can’t speak to the lead inspector call the Ofsted helpline and ask for a senior manager from Ofsted.
You must complain online if your concerns were not resolved during the inspection (bearing in mind that a complaint will not usually delay publication of the report).
You can complain at any time up to 10 working days after the concern was raised, or after the report has been published. An investigating officer will contact you to discuss the complaint. An investigation will take place using evidence from the report and feedback from the team that carried out your inspection. You’ll get a written response, normally within 30 working days of Ofsted receiving your complaint.
You can ask Ofsted to review your complaint again, if you’re not happy with the way it was handled. There are time limits for doing so.
Since 1 July 2015, a number of specified authorities, including FE colleges, have been required by section 26 of the Counter Terrorism and Security Act 2015 (the section 26 duty) to have 'due regard to the need to prevent people from being drawn into terrorism'. There is FE specific guidance: "Prevent Duty Guidance for further education institutions in England and Wales" (the Guidance).
The Guidance makes it clear that the section 26 duty is not intended to place 'large new burdens' on institutions and it is intended that it will be implemented in a 'proportionate and risk based way'. This is reassuring, but it also states that compliance will only be achieved properly if the duty is delivered in the ways specified. FE institutions that receive public funds will be monitored for compliance with the section 26 duty by Ofsted (or Estyn in the case of institutions in Wales) through its Common Inspection Framework (or the equivalent in Wales). Inspections are risk based and the frequency of inspection will depend on this risk.
A number of areas are highlighted in the Guidance and those that we consider will be of particular relevance to colleges are:
If you would like further information on how the Prevent Duty affects further education colleges, please read our recent article.
All colleges are required to have a published complaints procedure, ideally setting out a three stage model: informal, formal and complaint panel hearing.
Stage 1: Informal
If appropriate, the student should try to discuss his/her concerns with the person immediately involved as soon as possible and within a specified time frame of the concern arising, e.g. 20 working days. If possible, the concern should be resolved within a short time frame, e.g.10 working days.
Stage 2: Formal
If the student is unhappy with the Stage 1 response he/she should make a formal complaint. Formal complaints must be in writing and be made within a specified time period, e.g. within 20 working days of the end of the informal stage. The written complaint should identify what is being complained about, outline the facts as the student sees them, set out the steps which have been taken to resolve the issue so far, give the college permission to investigate and state what outcome is desired.
The Principal should appoint someone to carry out an investigation. Once completed all of the evidence collected during the investigation should be handed to the Principal. A written decision, stating the findings and outcomes, should be provided to the student within in a specified time frame.
Stage 3: Panel hearing
If the student remains dissatisfied with the outcome of the complaint, he/she should contact a nominated person within a specified period stating that he/she wishes to appeal and the reasons why he/she is not happy with the decision. The college should appoint an independent senior manager to head a complaint panel. The panel will meet to review the complaint and will inform the student of the date of the meeting allowing him/her to attend and be heard. A copy of all supporting documentation should be supplied to all parties and the panel members in good time prior to the hearing. The student should be informed of the outcome within a specified time frame.
In some cases a college may feel it necessary to take professional advice on the complaints handling process.
The college must have in place a transparent and clear procedure to investigate an incident which may give rise to a decision to permanently exclude a student.
The student is entitled to know the case against him/her, so when conducting an investigation it is important that the subject of the complaint is advised of the allegations in as much detail as possible and given the opportunity to respond to them. Any evidence adduced by one party should be disclosed to the other party. The investigator and decision maker should be able to clearly point to the evidence on which their determination is based.
The student should have the right to appeal to a panel of governors who have had no previous involvement in, or knowledge of, the incident leading to the exclusion decision.
A young person has the right to request a particular college to be named in their EHC plan and the local authority has a duty to consult that college about admitting the young person and naming the college in the EHC plan, unless:
Efficient education means providing each young person with a suitable, appropriate education in terms of his/her age, ability, aptitude and any special educational needs they may have. Where a local authority is considering the appropriateness of an individual institution, ‘others’ means the young people with whom the young person with an EHC plan will directly come into contact on a regular day-to-day basis.
The local authority must consider the comments of the college carefully before deciding to name it in an EHC plan, sending the college a copy of the draft plan. The college has 15 days to respond to the consultation. Once the college is named in the EHC plan, it must admit the young person. Colleges have to be named in EHC plans by the end of the March before the September in which the young person starts.
Further education colleges are subject to discrimination legislation and the Equality Act 2010 has specific provisions relating to the FE sector. Disability discrimination claims against colleges are common.
If a student is disabled as defined by the Equality Act 2010, the college has an obligation to put in place reasonable adjustments. Many students are disabled and if the college is aware of this, or should have been, it is obliged to put in place measures to address the student's disability.
If a student believes they have been discriminated against due to a failure to make an adjustment they can bring a claim in the County Court within six months of the last act of discrimination.
To successfully defend a claim, the college would have to prove that, on the balance of probabilities, it did not act unlawfully. If its explanation is inadequate or unsatisfactory, the court must find that the act was unlawful.
The parties can settle a claim or potential claim before it is decided by the courts. An agreement of this nature can include any terms the parties agree to and can cover compensation, future actions by the defendant, costs and other lawful matters.
If a college is planning to make 20 or more staff redundant in a 90 day period it will need to carry out collective consultation with trade unions at an early stage and before any final decisions are reached.
However, where many redundancies are planned, the college will need to identify redundancy selection pools, determine the selection criteria, carry out a fair selection process, conduct individual consultation with those involved, consider alternative employment and provide employees with the right to appeal any decision. Employees with over two years' service have the right to a statutory redundancy payment. It is important that the redundancy process and decisions are fair in order to avoid claims of unfair dismissal.
With the need to make difficult decisions in terms of pay, redundancies and changes to terms and conditions, colleges are increasing concerned that this will give rise to an increase in industrial action. We saw this happen in February in relation to the Unison-led strike over pay-freezes and in response to queries we received from clients, we put together answers to these strike-related FAQs.
In summary, if strike action is proposed at your college, the first step is to identify if it is official, as industrial action is only legal for unions if they comply with complex balloting and notice provisions.
Next, you will need to ascertain what form the action will take, how long it will last and who is likely to be affected to allow you to make suitable contingency arrangements. It is sensible to keep a dialogue going with the trade unions with a view to negotiating a resolution and avoiding the disruption that prolonged industrial action can cause. However, if action does appear likely you will need a suitable plan of action. This may involve making arrangements to cover or cancel classes or in some cases making the difficult decision to close the college.
To gauge the level of support for the strike, you can ask employees if they are planning to take part. However, you must ensure that they are not subject to any detriment if they do intend to strike as this could give rise to a claim.
All industrial disputes have to end and experience has shown us that the best results for employers are normally achieved by firm but fair management, which is careful not to increase the temperature of any dispute.
College mergers involve the transfer of staff under TUPE, so careful planning, providing information to and consulting with trade unions will be key. If a restructuring or any redundancies are planned post the merger this needs to be factored into the planning and appropriate consultation will need to take place.
Such developments usually have significant implications for employees and it is important that the HR and employment risks are anticipated and managed. If you require further information on the employment and HR aspects of collaborations and mergers, please read our article.
Collaboration between colleges and shared services arrangements are becoming increasingly common within the sector, particularly in relation to support services such as HR, finance and IT.
If a new entity is established to provide the shared services to a number of different colleges or if the services will be offered from just one college, a TUPE transfer is likely to apply to those employees currently assigned to the services. Colleges will be required to inform and consult trade unions about the implications of the transfer. This will include discussion around the risk of redundancies and any other measures that could impact upon the affected employees.
A right to work check must be done by an employer before it employs a potential employee by checking his/her original documents (from either List A or List B of acceptable documents) details of which can be found at Annex A.
This check should be done in the potential employee's presence and you must make and retain a clear copy of those documents and make a record of the date of the check.
If the college is sponsoring a student from outside the UK and EEA then it has to hold a Tier 4 Sponsor Licence.
Not all students from outside the UK and EEA need to be sponsored under Tier 4 as they may have their own immigration category, such as a spouse of a British citizen, a dependent of a Points Based System person, his/her parent(s) could be in the UK under Tier 1 (Entrepreneur or Investor) or Tier 2 (skilled worker with a job offer). It is important for the college to know if the student needs to be sponsored under Tier 4 and it should therefore check a potential student's immigration status before he/she starts at college.
There will be no immediate change for EEA nationals living in the UK following Brexit, exercising a Treaty Right as in this case by working or studying, until the UK leaves the EU. However, although an EEA national exercising a Treaty Right in the UK by working at the college or studying there, automatically obtains the right to be in the UK it may be good for him/her to obtain confirmation of his/her right to be in the UK. If he/she has been exercising a Treaty Right in the UK, he/she is a 'Qualified Person' and can obtain confirmation of this by applying to the Home Office.
If an individual has been in the UK and has exercised a Treaty Right in the UK for five years, which includes working or studying, he/she has automatically acquired the right of permanent residence. He/she can apply to the Home Office for confirmation of this by applying for a Biometric Residence Permit and submitting appropriate documents. If he/she has been studying in the UK he/she also has to show that he/she has comprehensive sickness insurance.
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