Governance

At the heart of the education practice is an in depth understanding of the importance of governance, funding, public accountability and the obligations which come with charitable status. This coupled with considerable experience of dealing with a wide variety of bodies including funding councils, various government departments and other public bodies is what has ensured that the team at Bond Pearce are nationally regarded for their work in this area.

In our role as Clerk to the Corporation of a number of FE institutions, we have had regular contact with the DfES on various constitutional matters. In addition we have worked directly with the LSC on matters including college inspections and re-inspections, capital project funding issues and negotiations in respect of funding units.

Our experience includes :

• Articles of Government, regulations, constitutional and vires issues
• Student discipline/complaints
• Student contracts
• Students Union
• Charity law
• EC Law
• Potential mergers
• Statutory compliance
• Health and safety (LINK TO H&S)
• Environmental legislation (Link to Environment)
• Data protection
• Equal opportunities (Link to the one above in employment)
• Freedom of information
• Public interest disclosure
• Risk management
• Academic regulations

Articles of Government, regulations, constitutional and vires issues

Although not an everyday issue, we are aware that universities and HE colleges have to work strictly within their Articles of Government and in accordance with a variety of regulations and financial memoranda. Through our role as Clerk to the Corporation and in response to specific queries raised by our education clients, we are fully conversant with and able to deal with the kind of constitutional queries which may arise, in particular as to whether actions of an institution are intra or ultra vires. We also have advised frequently on the relationship between an education institution and its subsidiary undertakings.

Some of our recent work includes:

• advising a university on issues relating to and the terms of application to the Privy Council for degree awarding powers and university status
• the conduct of training workshops on governance and liability issues
• detailed advice to a number of universities on their articles, statutes and regulations, particularly in connection with disciplinary issues relating to students and members of staff
• the defence of union backed judicial review proceedings, challenging the legality of internal procedures on the basis that they were contrary to the university regulations and ultra vires.

Student discipline/complaints

We have acted for many education institutions in relation to:

• claims arising from sporting and educational activities
• contractual claims in relation to academic courses
• disputes arising from degree and post graduate degree awarding
• defending a range of claims including various forms of unlawful discrimination (race, sex and disability)
• claims in relation to internal disciplinary and expulsion procedures
• we advised the Disability Rights Commission on the terms of its Post 16 Code of Practice issued under the Special Education Needs and Disability Act 2001
• we have just completed a full audit of compliance for a top five university of its obligations under the Act and similar audits for two privately run HE institutions have just been completed
• we have devised action plans and monitoring tools to secure compliance
• we were commissioned by the Learning & Skills Council to write and perform in a training DVD to illustrate how the Act would work in practice before the courts
• we launched, in conjunction with BDP Media, a multi-media training package, "Accessible education matters", designed for both the HE and FE sectors
• we have advised on the comprehensive policies on abuse covering children and adults with learning difficulties
• we have been contracted by NADP to run a legal helpline
• we have advised on a number of complaints referred to the Office of the Independent Adjudicator.

Student contracts
We have experience of student contracts and how they may be used in Higher and Further Education. The relationship between educational institutions and their students has become increasingly complex whether in respect of the contract between student and institution on enrolment, the restrictions around use by students of IT or other university facilities, or the terms upon which students occupy university accommodation.

Experience includes:

• advising a number of institutions in respect of OFT investigations, particularly in respect of contracts for residential accommodation
• we have advised many HE and FE institutions on the terms of their contracts with students. We have dealt with contractual claims in relation to alleged breaches of contracts involving academic courses
• we recently advised a university on the terms of its proposed access agreement and assisted in its drafting and negotiation.

Relationship with the Students Union
We have acted for a number of students unions and are well aware of the inter relationship between themselves and universities and the statutory terms governing this.

Charity law
Given the status of universities and HE institutions as exempt charities, Bond Pearce has also been involved in various issues concerning charity law, notably the takeover of one HE institution by another. This involved highly complex issues including the charity holding the land and the charity operating the HE institution being separate charities. We advise on:

• personal liability of Governors
• conflicts of interest
• interpretation of constitutional documents
• applications to amend Articles of Government
• merger of colleges
• education law points and management issues
• The Freedom of Information Act and the duties of the sector in respect of it

EC law
We have a specialist EC law team who have had much experience of dealing in the areas of competition and free movement of goods and services, having been responsible for 4 major ECJ cases. In the education sector we have advised on and litigated about EU matched funding issues involving fraud and franchising disputes.

Potential mergers
We have advised on a number of mergers or takeovers in the HE and FE sectors including:

• the takeover by one HE institution of another (which fell outside the statutory rules)
• the merger of two HE institutions, which was effected by statutory instruments
• the acquisition of a School of Health Studies by a University