School leaders and governors aren’t expected to know the answer to every question, and we know there’s plenty of questions on your mind. That’s why, through a subscription to TheSchoolBus, you have access to our question and answer service, where our dedicated research team are on hand to answer any questions you have.

Our research team conduct extensive research to find you the answer you need – we’ll read through any relevant guidance or legislation, liaise with our sector specialists and contact other organisations, such as the DfE, ICO and HSE, to make sure we have all the necessary information to answer your questions.

To showcase the wonderful work our research editors do, we decided to give away the answer to our most popular question of the week!

 

Tuesday 11 December

Q: We don’t currently have consent from parents to publish pupils’ names in our Christmas production programme. Please could you advise on the GDPR rules in relation to this?

We can confirm that, if a pupil is identifiable, e.g. you are printing their full names or including photographs, you would need to identify a lawful basis for printing the names in a Christmas production programme. [1]

Consent is one of the lawful bases; however, it may not be the most appropriate – read our article on the lawful basis here.

The ICO advised that legitimate interests may be appropriate for this type of processing; however, this is for your school to decide. You may find our article on using legitimate interests useful. Please note, you need to include the processing in your privacy notice. (ICO, personal communication)

[1] ICO (2018) (Online conversation regarding printing names in a programme) [Personal communication: 6 December 2018]

 

Tuesday 4 December 

Q: Can HLTAs deliver lessons?

Regulation 3 of The Education (Specified Work) Regulations 2012 specifies that individuals may carry out specified work (i.e. deliver a lesson) if:

  • They will be assisting or supporting the work of a qualified or nominated teacher at the school; or
  • They are supervised by a qualified or nominated teacher in accordance with arrangements made by the headteacher; or
  • The headteacher is satisfied that the individual has the skills, expertise and experience required to carry out these duties.1

A HLTA can only deliver lessons in the above circumstances, subject to the discretion of the headteacher.

The DfE advised that these regulations do not apply to academies if they converted to academy status during or after 2012 – they are free to determine their own arrangements. If, however, an academy converted before 2012, they must ensure that their arrangements meet the above requirements.2

 

1 The Education (Specified Work) Regulations 2012, Regulation 3 (6)

2 DfE (2018) (Telephone conversation regarding HLTAs delivering lessons) [Personal communication: 22 November 2018]

 

Tuesday 26 November 

Q: What information do schools have to publish in relation to the gender pay gap?

We can confirm that the requirement to publish information on the gender pay gap, under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, only applies to organisations with more than 250 employees.1

The gender pay gap information that relevant employers must publish is as follows:

  • The difference between the mean hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees
  • The difference between the median hourly rate of pay of male full-pay relevant employees and that of female full-pay relevant employees
  • The difference between the mean bonus pay paid to male relevant employees and that paid to female relevant employees
  • The difference between the median bonus pay paid to male relevant employees and that paid to female relevant employees
  • The proportions of male and female relevant employees who were paid bonus pay
  • The proportions of male and female full-pay relevant employees in the lower, lower middle, upper middle and upper quartile pay bands (SI 2017/353, schedule 1 (2)(1))

The Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017, SI 2017/353, schedule 1 (1)(1)

Tuesday 20 November

Q: We are a maintained school and one of our governors has said that we should be doing section 128 checks for governors. I can't see anything online to suggest that anything has changed, and that section 128 only relates to independent schools and academies. Please could you offer some guidance.

We can confirm that a section 128 direction applies to independent schools, including academies and free schools – specifically, to staff who are in management positions. [1] Please note that they do also apply to maintained schools in KCSIE 2018, this is in accordance with the School Governance (Constitution) (England) Regulations 2012.[2]

To complete the section 128 check, you need to go to the Teacher Regulation Agency website and then use the Employer Access link here.

[1] DfE (2018) ‘Keeping children safe in education’ p.33, p.46

[2] Andrew Hall (2018) ‘Safeguarding Briefing – 19th November 2018’

Thursday 15 November

Q: At a recent Social Services meeting, the school was asked to fund after school childcare for a Looked After Child. Is this an appropriate use of the pupil premium?

We confirmed that what the school spends their pupil premium funding on is entirely at their discretion. Spending must benefit disadvantaged pupils and raise their attainment – this includes LAC.[1]

When making a judgement on what to spend pupil premium on, the DfE stipulates that the school must:

  • Report how much pupil premium is received in the academic year.
  • State what the current barriers are to disadvantaged pupils’ attainment.
  • State what they will be spending the pupil premium funding on to overcome these barriers.
  • Justify their spending.
  • State the intended impact of the spending.
  • State how they will improve the attainment of disadvantaged pupils.

This information should be published on the school’s website.[2]

For more information on assessing your school’s pupil premium strategy and examples of what it can be spent on please read our article here.

 

[1] DfE (2018) (Telephone communication regarding how schools can spend pupil premium) [Personal communication: 8 November 2018]

[2] DfE (2018) ‘What academies, free schools and colleges should publish online’ para.26

Thursday 8 November

Q: Can teachers object to their school emails being available to parents?

Our HR experts, FusionHR, advised that, as these accounts are school-based, it would be the school’s decision as to whether these addresses are made available or not – this decision would usually fall to the headteacher. If your school already has a policy in place outlining that teachers must make their email addresses available, or if it is already considered ‘normal practice’, then teachers would need to comply.[1]

If, however, you don’t have a policy in place and/or teachers don’t currently share their email addresses with parents, you would need to seek HR advice regarding a management instruction/disciplinary action if you believe your request is reasonable. (FusionHR, personal communication)

[1] FusionHR (2018) (Email conversation regarding email addresses) [Personal communication: 9 November 2018]

Thursday 1 November

Q: Under the GDPR are staff allowed to access work email addresses through personal mobile phones? Does it make a difference if it is the school's general email account or a work email account for a specific person?

We can confirm that whether or not staff members can access work emails on their personal devices is at the school’s discretion, as they are the data controller.[1] When assessing whether or not teachers can access work emails on personal devices, your school should consider the following:

  • What type of data is held
  • Where data may be stored
  • How it is transferred
  • Potential for data leakage
  • Blurring of personal and business use
  • The device’s security capacities
  • What to do if the person who owns the device leaves their employment
  • How to deal with the loss, theft, failure and support of a device (such as software updates) [2]

Whilst the ICO’s ‘Bring your own device (BYOD)’ gives reference to the Data Protection Act 1998, I was assured by them that this guidance is still relevant under the GDPR. (ICO, personal communication)

Our Staff ICT and Electronic Devices Policy states:

“All personal devices that are used to access the school’s online portal, systems or email accounts (e.g. laptops or mobile phones) will be declared and approved by the headteacher before use and submitted for routine security checks”. (point. 7.2)

To summarise, staff members can access their work emails on personal devices; however, your school should ensure the devices are fit-for-purpose before allowing staff to access their work emails.

[1] ICO (2018) (Online conversation regarding the use of personal devices for work-related emails) [Personal communication: 22 October 2018]

[2] ICO (2014) ‘Bring your own device (BYOD)’, p.4-5

Thursday 25 October

Q: There was an update to Keeping Children Safe in Education in September 2018, but we had updated our Child Protection and Safeguarding Policy in April 2018. Do we need to update it immediately or is it reasonable to wait until the date planned in our policy review cycle, which would mean the policy would be reviewed and updated in April 2019?

We spoke directly with the DfE, who advised that the school must update the policy as soon as possible. The changes to ‘Keeping children safe in education’ (KCSIE) were effective from 1 September 2018, so schools should ensure their policies are updated immediately to reflect these updates – not doing so will risk non-compliance.[1]

TheSchoolBus model Child Protection and Safeguarding Policy is fully up-to-date with the latest changes to KCSIE. 

[1] DfE (2018) (Telephone conversation regarding updates to policies) [Personal communication: 18 October 2018]

Thursday 18 October

Q: Will I receive a section 5 or 8 Ofsted inspection? How does Ofsted decide if we will receive a one-day short inspection or a longer two-day inspection?

The type of inspection that schools will receive depends on the outcome of their most recent section 5 inspection.

Section 5 inspections are generally set at intervals within five school years from the end of the school year that the previous inspection took place.

Section 8 inspections are commonly referred to as a ‘short’ inspection. 

Schools that were judged to be:

  • ‘Outstanding’ in their overall effectiveness at their last section 5 inspection are exempt from inspections under section 5 – they will instead receive a section 8 inspection.
  • ‘Good’ at the previous section 5 inspection usually receive a one-day short (section 8) inspection roughly every four years – providing the quality of education remains good at each short inspection.

Special schools, PRUs and maintained nursery schools judged outstanding in their overall effectiveness are not exempt, and are inspected in line with section 5 of the Education Act 2005 and the five-year interval.

Please note, where an exempt school makes structural changes, such as adding a new key stage or amalgamating with another school, the school will receive a section 8 no formal designation inspection.

Ofsted use risk assessments to ensure that its approach to inspections are appropriate – the outcomes of the risk assessment are used differently depending on the previous inspection grade of the school.1

It is important to note that exempt schools are subject to a risk assessment. If the risk assessment process raises concerns about the performance of an exempt school, it may be inspected after the risk assessment is complete. Around a fifth of good schools automatically receive a full section 5 inspection instead of a section 8 short inspection – this happens when Ofsted’s risk assessment process indicates that the quality of education may have decreased significantly. (Ofsted, para.23)

Additionally, schools may receive a no formal designation section 8 inspection at any time, if the relevant criteria are met, e.g. Ofsted receive a high number of complaints or reports of safeguarding concerns.

If, during the inspection, the lead inspector finds that a school’s overall effectiveness has declined to less than ‘good’, a section 8 inspection may be deemed as a section 5 inspection.

There are four possible outcomes for the short inspection:

  • Outcome 1 – the school continues to be a good school.
  • Outcome 2 – the school remains good and there is evidence to suggest enough of an improved performance that the school may be judged outstanding. The school will be informed that its next inspection will be a section 5 inspection and will typically commence within one to two years.
  • Outcome 3 – the lead inspector is not satisfied that the school would receive at least its current grade if a section 5 inspection were carried out now. The school will be informed that its next inspection will be a section 5 inspection and will typically commence within one to two years.
  • Outcome 4 – evidence has been gathered to suggest the school may be ‘inadequate’ in one or more of the graded judgements under section 5 inspections, e.g. there are serious concerns about safeguarding. The short inspection will be converted to a section 5 inspection, usually within 48 hours.

For schools that have been judged as ‘requires improvement’, they may be subject to monitoring by Ofsted; however, this will not normally apply to schools that have been judged as requires improvement for the first time. Requires improvement schools who are being monitored will be re-inspected under section 5, usually within 30 months after the publication of the report.

If the school has established improvement in some areas and there is a general upward trend, but key aspects of performance remain less than good, the school may be judged as requires improvement again, in which case there may be monitoring before another section 5 inspection takes place within 30 months.

For more information pertaining to the types of Ofsted inspections, you may find our ‘School inspection handbook 2018’ and ‘School inspection handbook – section 8 2018’ 3-Minute Reads useful.



1 Ofsted (2018) ‘School inspection handbook’ para.12, 18 and 19

Thursday 4 October

Q: Our MAT has recently appointed a member of staff as co-principal with the existing principal (who is also the CEO of the MAT and a trustee). They want to take it in turns to attend local governing body meetings and sometimes they will both attend. They both want to be named as ex-offcio governors with voting rights. The co-principal who is not a trustee also serves as a local governor on one of the other MATs school's LGBs. Is this OK?

To answer this request, we contacted our governance expert who advised that membership and voting rights within an LGB are determined by the MAT’s board of trustees – this is because an LGB is a committee of the trust board. This means that only the board of trustees of the MAT has the power to stipulate, within their own articles of association, whether the co-principal has voting rights.

Going forward, we recommend that you refer to your MAT’s articles of association as information may vary depending on how old the articles are. If any changes to voting rights or the appointment of trustees have been made, then it should be recorded within minutes of meetings.

Furthermore, our governance expert recommends that you consult with the company secretary (if the trust has one) or the chair of the board of trustees to seek clarification of the arrangements the trust has agreed upon regarding this matter. [1]

[1] Wadley, N., (2018) (Email communication pertaining to the role of a co-principal as an ex-officio governor) [Personal communication: 26 September 2018]

Thursday 27 September

Q: If disqualification by association is no longer a requirement following the change in legislation, do we need to remove this data from the single central record for previous periods?

To answer this question, we spoke to our HR experts, FusionHR, who told us that the SCR does not need updating (unless it specifically mentions disqualification by association) – this is because the only part of the DfE guidance, ‘Disqualification under the Childcare Act 2006’, that has changed is the ‘by association’ section. 1

With this in mind, schools still need to adhere to the rest of the Act – in essence, people can still be disqualified under the Childcare Act 2006, but they can’t be disqualified by association. (FusionHR, personal communication)

The clause relevant to disqualification under the Childcare Act 2006 in TheSchoolBus’s SCR states: “If required, date childcare disqualification disclosure form completed (DD/MM/YYYY)” – this does not need updating, as it is still relevant to the rest of the Act as mentioned above.

1 FusionHR (2018) (Phone conversation regarding disqualification by association legislation changes) [Personal communication: 19 September 2018]

Thursday 20 September

Q: Are there any statutory risk assessments for schools?

With reference to the DfE’s guidance document ‘Health and safety: advice on legal duties and powers’, schools are required by health and safety law to assess the risks to school staff and others whilst on their premises, and should “use a common sense and proportionate approach” to managing risk.1 This document does not outline any statutory risk assessments that schools are required to produce. To clarify, we spoke directly with the DfE, who confirmed that it is up to schools to decide which risk assessments are required to effectively meet their duties under health and safety law.2

Aside from health and safety, in the statutory ‘Keeping children safe in education’ (KCSIE) document, it states that schools should undertake a risk assessment when employing volunteers and deciding whether to obtain an enhanced DBS certificate for any volunteer not engaging in regulated activity. Within KCSIE, it is clarified that any statement referring to “should” means that the advice “should be followed unless there is good reason not to”.3

So, whilst there are no statutory risk assessments, it is advised that schools follow any good practice advice, such as conducting risk assessments for volunteers, and ensure they adopt a common-sense approach to managing health and safety.

 1 DfE (2014) ‘Health and safety: advice on legal duties and powers’, p.4

2 DfE (2018) (Telephone conversation regarding statutory risk assessments) [Personal communication: 13 September 2018]

3 DfE (2018) ‘Keeping children safe in education’, p.3,45

 

Thursday 13 September

Q: Can a teacher deputise for a headteacher in their absence or do schools have to have a deputy headteacher?

We spoke with our HR experts, FusionHR, who advised that whether or not a school has a deputy is a decision entirely at the discretion of the school. Where a deputy headteacher is assigned, they must deputise in the headteacher’s absence for at least 28 days of the school year, as it will be part of their contract.1

Where schools choose not to have a deputy, they can make arrangements for a staff member, such as a teacher, to deputise in the headteacher’s absence, but they are under no obligation to do so, unlike an official deputy headteacher. As such, schools can ask teachers, or other staff members, to deputise in the headteacher’s absence, but they cannot be instructed to do so. It is also important for schools to have due regard to whether staff members are skilled enough to deputise in the headteacher’s absence. (FusionHR, personal communication)

If there is no assigned deputy, it is common for schools to have an agreement in place with another school, where their deputy headteacher or headteacher will come to the school and act as head in the headteacher’s absence – this is known as a secondment, where schools share staff members. (FusionHR, personal communication) Schools may find our ‘Creating a Secondment’ guidance useful, which explains the process and what may be included in the agreement, should they wish to implement this.

 

1 FusionHR (2018) (Phone conversation regarding deputy headteacher requirements) [Personal communication: 5 July 2018]

Thursday 6 September

Q:  When parents make appointments to come to school to speak with class teachers about their child's progress, attainment and targets. Is there a statutory number of times this should happen each academic year?

To answer this query, we contacted the DfE, who advised that there is no statutory guidance on how many parents’ evenings a school should hold; ultimately the decision falls to the headteacher and governing board.[1]

When setting parents’ evenings, the NUT recommends that schools consider the following information:

  • Parents’ evenings should be few in number during the academic year
  • During the week where there are parents’ evenings, only one other evening meeting should be called
  • Parents evenings must be within the 1265 hours annual maximum directed time and within 195 days when the teacher is required to be available to work [2]

To conclude, it is for the school to decide how many parents’ evenings they set per academic year – you should, however, have due regard to the points of consideration outlined above to ensure teacher workload does not become excessive.

 

[1] DfE (2018) (Telephone conversation regarding parents’ evenings) [Personal communication: 3 September 2018]

[2] NUT (2014) ‘Teachers’ working time and duties’, p.32-33

 

Tuesday 19 June

Q: How many pupils can a teaching assistant (TA) supervise alone in a before or after-school club?

To answer this query, we contacted the DfE who stated that it is entirely at the discretion of headteacher to decide whether a TA is capable of supervising a specified number of pupils – there are no limits on pupil to TA ratios.1

Headteachers should conduct a risk assessment to establish a TA’s capabilities when deciding upon the number of pupils that will be in their care. (DfE, personal communication) In addition, headteachers should consider the following factors when determining the appropriate ratio:

  • The activities that the pupils will be doing – some activities, e.g. sports, may require more supervision due to the higher risk of injury
  • Any arrangements that are needed for specific pupils – some pupils may require further assistance for an activity due to a specific need, e.g. a medical condition
  • The ages of the pupils – e.g. if there is a mix of ages and the pupils are participating in a sporting activity, more supervision may be required

Headteachers should consider the safety of the pupils in attendance and decide whether the risks require the ratios to be amended. This may mean that the ratios could vary depending on the activity the pupils are participating in, as well as the pupils who are in attendance. (DfE, personal communication)



1 DfE (2018) (Telephone conversation regarding a TA supervising pupils in a school club) [Personal communication: 13 June 2018]

 

Related terms: assistant, clubs, running a club, organising, leading. 

 

Tuesday 12 June

Q: Can schools share safeguarding information without consent?

In order to share information lawfully without consent, schools first need to identify the lawful basis for sharing the data – one of the lawful bases is consent, but consent will not be required if schools can justify another lawful basis for sharing the data. More information on the lawful bases and when they may be used can be found in our guidance here. For further clarification, we have spoken directly with the ICO who advised that schools will need to ensure they can satisfy a lawful basis, or determine whether the information can be shared under an exemption or requirement under another law – which will mean consent would not be required.1

The sharing of safeguarding data is included within our Child Protection and Safeguarding Policy 2018; section 28 (and specifically point 28.6) references how safeguarding data may be shared without consent: “Where it is in the public interest, and protects pupils from harm, information can be lawfully shared without the victim’s consent, e.g. if doing so would assist the prevention, detection or prosecution of a serious crime.” – i.e. a lawful basis, exemption or other requirement in law is satisfied.

The DfE’s ‘Data protection: a toolkit for schools’ (2018), also states that “GDPR does not prevent, or limit, the sharing of information for the purposes of keeping children safe”, and that information can be shared “without consent if to gain consent would place a child at risk”.2

When sharing safeguarding information, schools will also need to establish whether a data sharing agreement should be in place to set the provisions under which data will be shared – depending on who the information is shared with, the organisation/individual will either be a data controller or data processor and a data sharing agreement may be required. More information on controllers and processors can be found here – an example data sharing agreement can be accessed from the Related Content section of this article.

Finally, the ICO advised that schools will also need to outline their intention to share safeguarding information in their privacy notices – our resource pack contains various privacy notices which may be of use. (ICO, personal communication)

To conclude, if schools are able to satisfy a lawful basis other than consent, an exemption or requirement under another law, safeguarding information can be shared without consent – schools’ justification as to how they meet these must be clear.

 

1 ICO (2018) (Online conversation regarding sharing safeguarding data) [Personal communication: 29 May 2018]

2 DfE (2018) ‘Data protection: a toolkit for schools’, p.21

 

Related article: sharing data, processing agreement, sharing agreement, consent, lawful basis, lawful bases, GDPR

 

Tuesday 5 June

 

After speaking with the DfE, we can advise that schools are able to decide how they use their pupil premium funding allocation. If a school believes that the best use of this funding would be for free school meals (FSM), they will be able to do so.

However, schools should be aware that they must prepare evidence for inspectors with regards to the use of their pupil premium funding. When reviewing the usage of this, inspectors will gather evidence about the effectiveness of pupil premium funding in schools in relation to

  • The level of pupil premium funding received by the school in the current, and previous, academic year(s).
  • How leaders and governors have spent the pupil premium, their reasons for this spending and its intended impact.
  • How the use of the funding has impacted on disadvantaged pupils’ learning and progress, detailed by outcome data and inspection evidence.1

If Ofsted recognise the need for improvement in the provision of pupil premium funding, they will recommend an external review of the school’s usage, with specific regard given to the improvement of outcomes and progress for disadvantaged pupils. (Ofsted, p.46)

Whilst the usage of pupil premium funding is up to schools to decide, they must be prepared to justify their reasons for their spending and how it impacts on the learning and progress of disadvantaged pupils.

1Ofsted (2018) ‘School inspection handbook’, p.45, para.158

 

Tuesday 29 May

Q. What are the statutory requirements for school reports sent to parents at the end of the Summer term?

The DfE outlines that schools must send a written report to parents pertaining to their child’s performance in school; the reports need to be sent at the end of the Summer term, and at the end of each KS – there are no statutory requirements to send a report in other years in the KS.1

The table below shows what must be included in a school report for the end of KS1 to KS4.

 
 

Statutory information

Year 2 (end of KS1)

Year 6 (end of KS2)

Years 7, 8 and 9 (KS3)

Years 10 and 11 (KS4)

General progress

Yes

Yes

Yes

Yes

Notes of achievement, including strengths and weaknesses

Yes

Yes

Yes

Yes

How to arrange a discussion about the report with a teacher

Yes

Yes

Yes

Yes

Attendance record

Yes

Yes

Yes

Yes

The grade achieved at GCSE

No

No

No

Yes

Any other qualifications

No

No

No

Yes

 

The DfE advises that this information is the minimum requirement for schools, and that, if they so choose, they can include additional, non-statutory, information they wish to report on to parents. (DfE, para.4)

Schools should report on the compulsory national curriculum subjects at the end of each Summer term.2 A full list of compulsory national curriculum subjects can be found for each key stage, here. Schools can utilise our Annual Reports Resource Pack to ensure they are prepared for the end of an academic year.
 
 

1 DfE (2014) ‘School reports on pupil performance: guide for headteachers’, para.1 https://www.gov.uk/guidance/school-reports-on-pupil-performance-guide-for-headteachers [Accessed: 09 May 2018]

2 Gov.uk (2013) ‘The national curriculum’, ‘overview’ para.5 <https://www.gov.uk/national-curriculum> [Accessed: 09 May 2018]

 

 Monday 22 May

Q: How do you make CCTV signs GDPR compliant?

 

The ICO confirm that for schools to ensure their CCTV in operation signs are GDPR compliant, they should:

  • Ensure signage is clear and visible, e.g. outdoor signs are not covered by overhanging branches.
  • Ensure signage is an appropriate size, e.g. if the CCTV is located near a drop off point it needs to be big enough for driver to see it from inside a car.
  • Ensure, if it captures images outside the school site, signs are clearly displayed for pedestrians.
  • Ensure staff know who to talk to if they get asked about the images captured on CCTV.1

Furthermore, when creating CCTV in operation signs, the wording used must include:

  • The details of the organisation operating the system.
  • The purpose of its use, e.g. crime prevention.
  • Who to contact if individuals have any enquires pertaining to the images being captured by the CCTV, e.g. the data protection officer (DPO) or headteacher.2

Schools can learn how to operate CCTV within their school, in compliance with the GDPR, by accessing our Surveillance and CCTV Policy in the related content section, below.



1 IFSEC Global (2017) ‘Watch: CCTV signage – How to avoid GDPR penalties’ para.6 <https://www.ifsecglobal.com/watch-cctv-signage-protect-enormous-penalties-gdpr/> [Accessed: 17 May 2018]

2 ICO (2018) (Email conversation regarding GDPR compliant CCTV signage) [Personal communication: 17 May 2018]

Monday 14 May

Q. How long can data be retained for?

Firstly, to comply with the GDPR, schools must have a lawful basis for seeking and holding data, these are the following:

  • Consent
  • Contract
  • Legal obligation
  • Vital interest
  • Public task
  • Legitimate interests 1

Schools should determine which of the above is the most appropriate justification for seeking, processing and storing data. To read more on lawful basis, click here.

In terms of retention, as per Article 5 of the GDPR, personal data should not be kept for longer than it is necessary for the purposes for which the data was originally obtained.2 In other words, once the data has been obtained, it should only be retained until its purpose has been fulfilled.

A Records Management Policy should be in place and should establish the retention periods that types of data will have. Please find our template Records Management Policy as a related article. When establishing the retention periods of data, you must be able to justify why it is kept for the specified length of time, and in line with any local arrangements.  

To be GDPR compliant, schools must justify seeking and processing the data with one of the lawful bases and retain the data in line with the above.

To effectively keep track of archived files, please see our Archived Files Log in the related articles bar which allows schools to log their archived files by providing space for them to enter the date the data was created and its retention period, then the tracker will work out the disposal date for you.

 
Related terms: General data protection regulation, kept, holding, retaining, information. 

2 ICO (2016) ‘Principles’, para. 7 <https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/principles/> [Accessed: 1 May 2018]

 

Tuesday 8 May

Q.Who needs safer recruitment training and how often does it need to be renewed?

In accordance with Regulation 9 of The School Staffing (England) Regulations 2009 (as amended), at least one member of the recruitment panel must have completed safer recruitment training.1

It is important for schools to be aware that, depending on which provider this training was undertaken with, the validity length can vary by certificate.

Therefore, the governance experts GovernorLine advise that whilst the majority of safer recruitment training certificates are open ended, it is good practice to ensure that this training is renewed at least every five years.2

1 The School Staffing (England) Regulations 2009, regulation 9 (a)

2 GovernorLine (2016) (Telephone conversation regarding renewal dates of safer recruitment training) [Personal communication: 30 September 2016]

Monday 30 April

Q. Can the PE and sports premium for primary schools be used for mental wellbeing?

We spoke to one of our experts who stated that using some of the PE and sports premium for mental wellbeing is allowed; however, schools must have good justification for spending the premium on mental health provision. Additionally, it must represent the link into the healthy lifestyles aspect of the curriculum; for example, raising the self-esteem of pupils with weight issues may increase their confidence to participate in sporting activities.1

Our expert also advised that any spending on mental wellbeing should only represent a small percentage of the total PE and sports premium spending. (Masterson, personal communication)

The DfE and the ESFA provide some examples as to how the premium can be used, they are as follows:

  • Provide staff with professional development, mentoring, training and resources to help them teach PE and sport more effectively
  • Hire qualified sports coaches to work with teachers to enhance or extend current opportunities
  • Introduce new sports, dance or other activities to encourage more pupils to take up sport and physical activities
  • Support and involve the least active children by providing targeted activities, and running or extending school sports and holiday clubs
  • Enter or run more sport competitions
  • Partner with other schools to run sports activities and clubs
  • Increase pupils’ participation in the School Games
  • Encourage pupils to take on leadership or volunteer roles that support sport and physical activity within the school
  • Provide additional swimming provision targeted to pupils not able to meet the swimming requirements of the national curriculum
  • Embed physical activity into the school day through active travel to and from school, active playgrounds and active teaching 2

The DfE and ESFA also state how the premium should not be used, including:

  • To employ coaches or specialist teachers to cover planning, preparation and assessment arrangements – these should come out of your core staffing budgets.
  • To teach the minimum requirements of the national curriculum – including those specified for swimming (or, in the case of academies and free schools, to teach your existing PE curriculum). (DfE and ESFA, section 4)

According to the DfE and ESFA, when using the PE and sports premium, there are five key indicators that schools should expect to see improvement across:

  • The engagement of all pupils in regular physical activity - the Chief Medical Officer guidelines recommend that all children and young people aged 5 to 18 engage in at least 60 minutes of physical activity a day, of which 30 minutes should be in school.
  • The profile of PE and sport is raised across the school as a tool for whole-school improvement.
  • Increased confidence, knowledge and skills of all staff in teaching PE and sport.
  • Broader experience of a range of sports and activities offered to all pupils.
  • Increased participation in competitive sport. (DfE and ESFA, section 4)



1 Masterson, E., (2018) (Email communication about the spending requirements of the PE and sports premium) [Personal communication: 05 February 2018]

2 DfE and ESFA, (2017) ‘PE and sport premium for primary schools, section 4 ‘How to use the PE and sport premium’, <https://www.gov.uk/guidance/pe-and-sport-premium-for-primary-schools> [Accessed: 05 February 2018]

Monday 16 April

 Inspecting a policy

Q: In an MAT, should the board of trustees ratify each school’s safeguarding and SEND policies, or can this be delegated to the local governing board (LGB) of the respective schools?

In accordance with the DfE’s ‘Multi-academy trusts’ guidance, the board of trustees will be held accountable for non-compliance and it is responsible for ensuring schools within the trust are compliant with statutory requirements. The document also specifies that the MAT’s board of trustees has the authority to “delegate governance functions to LGBs or other committees including to oversee one or more individual academy.”1 Unfortunately, after calling for clarification, the DfE couldn’t provide any further guidance regarding policies that could be ratified at governing board level. 

To overcome this, we referred to our governance experts who confirmed that it is good practice for the board of trustees of an MAT to ratify each school’s safeguarding and SEND policies and allow each academy to amend their policies to ‘reflect local circumstances, including the academy’s specific LA’.2

Furthermore, the responsibility for the strategic oversight of safeguarding sits with trustees/ directors of the trust. That being said, trusts can consider delegating some of that responsibility to its LGBs to ensure that individual academy policies pertaining to safeguarding and child protection complies with the requirements, and practices, of the Local Safeguarding Children Board which, of course, is a function owned by the LA. There should be no bar to safeguarding or child protection issues being dealt with immediately and effectively. 3

Overall, it would be considered good practice for the MAT to ratify any policies pertaining to safeguarding and SEND, yet policies should be amended at LGB level to enable individual academies to account for their LAs safeguarding and SEND protocols.  



1 DfE, (2016) ‘Multi-academy trusts’ p.21

2 Wadley, N., (2018) (Email conversation regarding ratifying policies at trust level) [Personal communication: 12 April 2018]

3 Hodsman, S., (2018) (Email conversation regarding ratifying policies at trust level) [Personal communication: 12 April 2018]

Monday 9 April

 Q. How do you decide whether legitimate interest is the most suitable lawful basis for processing data?

On the whole, legitimate interest is the most commonly used lawful basis but it will not always be applicable.1

To judge whether you can use legitimate interest for processing data, such as using pupils’ photographs as part of the school’s management information system, you should carry out three different tests, these are:

  • Purpose test – establishing why you want to use the data, what will be achieved and whether the benefits are justifiable.
  • Necessity test – establishing whether the processing of the pupils’ data will be useful and whether there is a less intrusive way of reaching a means to an end.
  • Balance test – establishing the impact it will have on the data subject by processing the data for said reason.

These three tests make up a ‘legitimate interest assessment’ (LIA) – you should carry out a LIA prior to obtaining the data and it should be recorded in a physical copy so that you are compliant with the GDPR.

A LIA is designed so that you can judge whether processing data in the ways you are suggesting is necessary and expected from the data subjects. The LIA is designed so that the data processors (the school) consider the impact the processing would have on the individual's own rights and freedoms.2



2 ICO (2018) (Email conversation regarding lawful basis for processing personal data) [Personal communication: 06 April 2018]

Monday 2 April

Q. Is a separate privacy notice required for governors?

A. 

We spoke directly with the DfE, who confirmed that governors are considered to be part of the school workforce and are therefore covered by this privacy notice - a separate privacy notice for governors is not required.1

 

1 DfE (2018) (Telephone conversation regarding privacy notices for governors) [Personal communication: 21 March 2018]

 

 

Monday 19 March

Q. What should our office staff prepare for before Ofsted inspections?

1. Preparing office staff for Ofsted

In addition to all aspects of their prescribed role, office staff should be up-to-date on the school’s attendance and absence data, punctuality and lateness, and the visitor’s procedure aspects of the school’s Safeguarding Policy.

2. Greeting inspectors

Inspectors must be treated in-line with your visitor’s procedure. For this reason, greet them with warmth and, as with any other visitor, ask to see their photo ID, sign in the visitor’s book, and ask them to read/take note of whatever safeguarding arrangements the school has in place for visitors.

3. What might inspectors ask office staff to do during inspection?

  • More often than not, it is the office manager who will have the single central record and so they may be asked to produce it.
  • During the inspection the inspector might ask office staff (or the headteacher) directly about their arrangements for checking visitors.
  • The office staff (or headteacher) might be asked to print off the parent view results during the second day.
  • The office staff (or headteacher) might be asked about present attendance, past attendance, arrangements for following up absences, attendance of different pupil groups, punctuality and lateness. 

4. Sources of further reading

The most important documents for any section 5 inspection are “The Inspection Handbook”, “The Framework for School Inspections” and “Inspecting Safeguarding in Maintained Schools”.

Monday 12 March

Q. Who can be a school's data protection officer (DPO)?

The role of data protection officer (DPO) can be undertaken by any individual either internally, for example by a staff member or governor, or externally, such as by a third party data specialist; however, the GDPR requires the appointed person to have professional experience and knowledge of data protection law.1

Whilst the GDPR does not specify any particular qualifications a DPO should have, when appointing someone to the role, it is important to ensure that the proposed person has knowledge proportionate to the type of processing the school carries out, as well as an understanding of the school’s IT, technical and organisational infrastructure. (ICO, 2016)

It should be noted that, when appointing the role internally, it must be ensured that the individual’s duties as DPO do not lead to a conflict of interest within their other role. For example, where a governor is appointed as DPO they should not be given any other responsibilities.2

To help you further understand the role of the DPO and appoint an appropriate person, explore our Role of the Data Protection Officer guidance.

2 Data Protection Education (2017) ‘The GDPR and Your School - The Data Protection Officer’, <https://dataprotection.education/blog/18-gdpr-in-education/23-the-gdpr-and-your-school-the-data-protection-officer-dpo> [Accessed: 7 March 2018]

 

Monday 5 March

Q. Under the GDPR, how often do privacy notices need to be signed?

To answer this question we reviewed the ICO’s Consent webpage, which states you should “keep consents under review and refresh them if anything changes”1; therefore, privacy notices need only be signed once.

Consent will need to be sought in the event the reasons for processing change and consent isn’t specific to the new processing purposes, e.g. if the school needs to collect more data, such as employment history. To ensure consent remains compliant with the terms of the GDPR, the ICO recommends “building regular consent reviews into your business processes”. (ICO, para.29)

The ICO website also suggests:

  • Keeping records to evidence consent – who consented, when, how and what they were told.
  • Making it easy for people to withdraw consent at any time they choose. (ICO paras. 27 & 28)

 In summary, consent should be sought when initially issuing a privacy notice and when any adjustments have been made that affect the original consent.

 

1 ICO (2017) ‘Consent’, paras. 27, 28, & 29 <https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/lawful-basis-for-processing/consent/#ib5> [Accessed: 14 February 2018]

 

Monday 26 February

Our question of the week is: How long should schools retain pupil records, including sensitive data?

We spoke to the Information Commissioner’s Office, who confirmed that the Data Protection Act 1998 does not stipulate how long records should be kept for and by whom.1 However, it is considered good practice for pupil records to be kept until the pupil reaches the age of 25 and that the responsibility for keeping these records lies with the school which the pupil attended until they reached statutory school leaving age.

Our team also sought the opinion of the DfE, who advised that maintained schools should liaise with their LA in regards to the storing and retention of sensitive data, such as special educational needs and disabilities information.2

For this reason, it is suggested that schools contact their LA to clarify retention details in order to ensure that their school is fully compliant with procedures within their relevant area.

 

1 ICO (2016) (Telephone conversation about record retention in schools) [Personal communication: 19 October 2016]

2 DfE (2016) (Telephone conversation about record retention, particularly SEND and child protection information) [Personal communication: 19 October 2016]

Monday 19 February 

Q. How does Ofsted define good attendance when inspecting schools?

In terms of what Ofsted would define as good or better attendance when conducting inspections, our Ofsted expert advised that 96 percent is the key indicator of good attendance (the current national average), but schools must monitor the attendance of all key groups using the relevant figure tables.1

In light of the above, our governance expert, Nicki Wadley, further advised that Ofsted consider the attendance statistics for a school and national averages (relevant to the specific school type, e.g. a primary school), and will also use these as an indicator of good attendance.2

As well as using statistical information, Ofsted will also consider a school’s approach towards improving and tackling poor attendance, and will therefore use procedures as well as figures to decide on a school’s overall attendance performance. Our Ofsted Expectations of Pupil Attendance guidance document explains what Ofsted look for when assessing attendance.

 

1 Ofsted Expert (2017) (Email communication regarding attendance percentages) [Personal communication: 8 September 2017]

2 Nicki Wadley (2017) (Personal communication regarding Ofsted’s expectations of attendance) [Personal communication: 6 September 2017]

 

Monday 12 February

 

Q: Are schools required to publish information relating to swimming on their website? 

In accordance with guidance from the DfE, we can confirm that from the 2017/2018 academic year, it is now a requirement for schools to publish information relating to swimming on their school website, specifically in relation to the PE and sport premium grant. This includes how many pupils within a school’s Year 6 cohort are meeting the national curriculum requirements to:

  • Swim competently, confidently and proficiently over a distance of at least 25 metres.
  • Use a range of strokes effectively.
  • Perform safe self-rescue in different water-based situations.1

Schools may choose to use some of the PE and sport premium to improve swimming provision – if they choose to do so, they must also publish certain information relating to the distribution of their funding; this includes the following:

  • The amount of premium received
  • A full breakdown of how it has been spent, or will be spent
  • The impact the school has seen on pupils’ PE and sport participation and attainment
  • How the improvements will be sustainable in the future

In order to help schools meet this requirement, we have created a PE and Sport Premium Strategy Template in line with our pupil premium expert, which helps schools address each criteria effectively and set out their strategy for using the funding.

1 DfE (2014) ‘PE and sport premium for primary schools’, para ‘Accountability’, <https://www.gov.uk/guidance/pe-and-sport-premium-for-primary-schools#how-to-use-the-pe-and-sport-premium> [Accessed: 5 February 2018]

 

 

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