Learning curve

Education law – the next big thing? A rising number of claims against schools and universities has already prompted some firms to launch dedicated education departments. Jennifer Currie reports on an emerging market

Robert Boyd, head of Veale Wasbrough’s schools team, recollects: “When I started out there was no such topic as education law. But there has suddenly been an awakening, and since 1990 eight major textbooks have been published, as well as two sets of law reports, a huge quantity of vertical press, a vast welter of case law and statute – more than anyone can cope with.”

Over the past decade, Boyd’s team of 20 education lawyers has handled more than 10,000 pieces of litigation of behalf of 700 independent schools, involving approximately 80 different disputes between parents and educators.

“Anything that happens in life happens in a boarding school,” Boyd claims. “It’s like a kaleidoscope. There’s murder, manslaughter, serious injury, boardroom stuff, charitable activities, property and intellectual property (IP), to name a few. You’d be hard-pressed to think of anything else.”

Given the fact that education is still a relatively new kid on the legal block, much of the sector is still uncharted territory. Lawyers have to square up to an enormous spectrum of fast-developing issues, from school admissions, bullying and expulsions at one end of the scale to IP, spin-off companies and university mergers at the other.

As a result, education lawyers generally fall into two groups: those who work for institutions, such as schools, colleges or universities, and those who represent individuals, such as parents, pupils and students. Conflict and trust issues mean you are unlikely to find a firm with a foot in both camps, but the majority of lawyers say that dealing with just one area is more than enough.

“There’s plenty of work,” says ex-history teacher Michael Imperato, now managing partner of Russell Jones & Walker’s Cardiff office, whose team specialises in claims from children and parents, particularly those involving pupils with special educational needs. “A lot of parents are still unaware of their legal rights,” Imperato continues. “It’s amazing that people are dealing with what is in effect their children’s careers, and they just make it up as they go along.”

Thanks to a number of landmark rulings in recent years and the UK’s blossoming love affair with the compensation culture, education law has been brought into the public eye like never before.

The case of Pamela Phelps in 2000 saw a former pupil successfully sue the London Borough of Hillingdon for more than £44,000 after it was proved that her teachers had failed to diagnose her dyslexia, leaving her with the reading age of a seven-year-old.

Meanwhile, in October last year, the former deputy head girl of an independent school in Norfolk hit the headlines when she launched a claim to recover £150,000 in likely lost earnings. Katherine Norfolk, now a history undergraduate at Exeter University, alleged that inadequate teaching at £4,000-a-term Hurstpierpoint College in West Sussex meant that she scored an E instead of an A grade at A-level Latin. Norfolk, who cherishes plans to become a corporate lawyer, fears the poor grade will count against her in the future.

Yet schools, particularly in the independent sector, are angry that parents are being encouraged to sue over poor examination results by law firms who offer them potentially lucrative ‘no win, no fee’ arrangements. An indication of just how quickly the situation is evolving is the fact that headteachers and lawyers came face to face at a conference organised by the Law Society and the National Union of Teachers in Wales earlier this year to discuss the impact of rising litigation against schools.

“Heads claim they spend more time answering lawyers’ letters than they do running the school,” says Jack Rabinowicz, a partner at Teacher Stern Selby, whose team was responsible for the landmark Phelps victory. “Some say that lawyers are now running the schools in this country.”

Teacher Stern’s well-respected practice was one of the first in the country to be devoted to education. Rabinowicz claims it has sprung from the firm’s long tradition of medical negligence. “There’s no difference between education and medical negligence,” he asserts. “Just as if you lose an arm during an operation, the purpose of suing is so that the same set of facts will not occur again.

“The aim of recovering damages is not only to improve the lot of the individual, but is also to improve standards in education in general.”

As a result of the impact of university tuition fees in England, Rabinowicz expects to see a sharp increase in the number of students taking action against education providers. He claims that the Government has no one to blame but itself. “Education has been turned into a political necessity and a consumer value. The more rights you give out, the more people will take advantage of them,” he adds.

Rabinowicz’s prediction has already materialised in the shape of Jaswinder Gill’s education practice in Middlesex. Specialising in student rights since 1993, Gills Solicitors has carved out a unique niche in cases related to funding issues, breach of contract and judicial review.

As revealed in the latest issue of Lawyer 2B, Gill recently secured compensation for a group of students who claimed their university degrees were worthless in a landmark case that could potentially pave the way for thousands of others to take action against below-par course providers. A judge at Oxford County Court agreed that Rycotewood College in Oxfordshire had been in breach of contract, because students on the two-year HND course in vehicle restoration and conservation were not equipped with the practical skills required to launch a career in the specialist area upon graduation.

“Do I think there are more courses like this? I don’t doubt it at all,” says Gill, who has co-authored a book on students’ legal rights in education entitled Universities and Students. “Students don’t always understand the rights and remedies they have. We want to try and redress some of the imbalances that exist between universities and students today.”

While individual complaints against educational institutions already provide niche departments with a plentiful supply of work, the majority of the larger practices live off instructions from further and higher education institutions.

The general trend among larger firms seems to be towards offering education as part of a wider package, which in many examples can encompass employment, health and safety and insurance.

Geraldine Elliott, a commercial litigation partner at Reynolds Porter Chamberlain, who acts for further education colleges, schools and teachers’ unions, sees it as “providing a service to the education sector”, rather than simply providing education advice.

“Education is a discipline, but it’s also a sector” says Elliott, who “fell into” education via her specialism in employment. “We’re providers of employment, insurance and health and safety law to a sector, which just happens to be education. Through that, we’ve developed a specialist knowledge of the discipline.”

Julian Gizzi, head of Beachcroft Wansbroughs’ public law department, agrees with the “broader badge approach”. “If you asked me if I was a public or an education lawyer, I’d say public,” he states.

Gizzi’s clients include higher and further education funding councils as well as more than 20 universities. The team has just acted on the creation of a global online university between 16 international universities and the Thomson Corporation in a deal worth $50m (£34.2m).

“[Universitas 21 Global] was a most unusual piece of work because we were dealing not only with the [creation of a] corporate entity, but with 16 universities from all over the world who have their own legal departments,” explains Gizzi. “We had to try to coordinate their input into the legal documents and negotiations to enable them to speak with a single voice.”

The Beachcrofts team is currently advising the UK Government on its own e-university project, which has had £62m of funding pumped into it so far.

“I’d like to think that our position in the legal market is such that, if something unusual or different comes about, we’re the natural first port of call for that advice,” Gizzi states confidently. He believes that the e-learning projects are “good examples of where the worlds of education and business meet”.

“Universities have the legal needs of any other business,” he continues. “They’re big operations with thousands of staff and students, large turnovers and complex estates. There’s a rich seam of people looking for legal advice.”

While John Hall, chairman of Eversheds‘ education team, agrees with this assertion, he emphasises that education, and higher education in particular, is a complex area that requires specialist handling by lawyers. “Universities are expected to perform and innovate like businesses, but they also have specific requirements from the Government which have to be met,” he says. “There are issues of charity law as well as ethical and public sector considerations. They sail pretty close to the divide between the private and the public sector.”

Eversheds has the lion’s share of the tertiary education market. With a third of the UK’s universities (70) on its books and more than half of all further education colleges (250), members of the national education team advise on a full gamut of legal issues, from risk management to property to governance. The firm has generated another revenue stream from a subscription service which offers colleges legal guidance on governance issues and had attracted 230 users at the last count.

But other firms are busy sharpening their skills in this area and Martineau Johnson has recently bagged some top higher education clients, including the role of legal adviser on a rare merger between two London universities.
With 14 universities and four higher education institutes under its wing, Martineaus dominates the education market in the Midlands, although it did recently lose De Montfort University to Eversheds.

Head of education Nicola Hart says education accounts for 10 per cent of the firm’s turnover and is regarded as a “strategic area”. “The practice is twice the size that it was five years ago. It’s quite substantial,” says Hart, whose four-strong team has recently extended its reach outside the Midlands to become principal legal adviser to Cardiff University and Queen’s University in Belfast.

Both Hart and Eversheds’ Hall are supremely confident about the future of education law. “There’s just so much in higher education alone. And independent schools are a different story altogether,” enthuses Hall. Hart agrees. “Funding pressures are forcing universities to look at different ways of raising capital and revenue. There are a lot of new areas requiring legal advice, which is good news for us,” she says.

But both are adamant that education will remain the preserve of a select band of specialists due to the need for advice “with its own particular spin”, as Hart puts it.

Hall adds: “There are plenty of big firms that have woken up to the opportunities of this particular sector. But I think they all underestimate or undervalue the need for sector knowledge, which you really do need if you’re going to be able to provide a blue ribbon service.”

Imperato at Russell Jones agrees that too many cases are muddied by solicitors who are unaware of the sector’s specialist “nuances”, leaving lawyers such as him to pick up the pieces. “Education law is very statute-based and isn’t good to dabble in,” he states firmly. “But it’s easy to dabble and it happens an awful lot. People are given the wrong advice. You can still get full legal aid for educational negligence cases, but I’ve had some cases where people are told it’s the same as a personal injury claim and is therefore not eligible for funding. It’s an honest mistake but it’s just not right.”

Education law may still be in its adolescence, but Hall believes that its pattern of evolution could provide a clue to the future of the legal profession in general. “There aren’t too many intense sector groups like this,” he says. “I think they can give us an indication of how things may develop.

“Rather than dreary, inward-looking departments, people will adopt a rigorous client-facing ethos. You can’t be successful in education without it.”

A snapshot of education lawyers in action across the country

Martineau Johnson (lead partner: Nicola Hart)
Advised on the “rare” merger between University of North London and London Guildhall University. Advising a Welsh University on a novel public-private partnership scheme for refinancing its student accommodation. Martineau Johnson is also advising a consortium of London and South East Universities on the launch of the £4m Cascade Fund to finance university research in successful spin-out companies.

Russell Jones & Walker (lead partner: Michael Imperato)
Recent cases include: Elaine Moore v Cardiff City Council, an admissions case that challenged successfully the council’s Welsh medium education policy; Sarah Culbertson v Cardiff City Council, a large ongoing educational negligence claim; Suzanne Turley v Wrexham County Council, in which the firm’s lawyers challenged successfully the council’s refusal to allow a 16-year-old girl in foster care to take up a place at Gordonstoun School in North Scotland.

Teacher Stern Selby (lead partner: Jack Rabinowicz)
Recent cases include: Bradford Smart v West Sussex County Council in the Court of Appeal (CA), with the result that schools can now be found liable for bullying that takes place outside school; L v Hertfordshire (CA and now pending in House of Lords) to ascertain whether reinstatement at school following an exclusion means full reinstatement as per employment, or whether the student can be placed in a form of purdah; Nash v Chelsea College (CA), dealing with student rights in consideration of exam performance.

Beachcroft Wansbroughs (lead partner: Julian Gizzi)
Advised on the formation of Universitas 21 Global, an online international university involving 16 institutions and Thomson Corporation. Currently advising the Government on the setup of the UK e-Universities Worldwide project. Also acting for the University of Cambridge regarding its investigations into the implementation of a new accounting system. Advising on the creation of the Conservatoire for Dance and Drama.