Education Update – February 2014
Print newsletter14/02/2014

A waste of time? Why getting students to reduce their waste is important
Since 2011, the amount of capital funding a higher education institution (HEI) receives from the […]
Since 2011, the amount of capital funding a higher education institution (HEI) receives from the Higher Education Funding Council for England (HEFCE) has depended on how much that HEI has reduced its carbon emissions. Each individual HEI in England has to have its own carbon reduction strategy, targets and associated carbon management plan.
The carbon management plan must include a baseline for 2005 and, against that, carbon reduction targets for 2020, with an implementation plan. The overall target for the higher education sector is a 43 per cent reduction in carbon emissions by 2020 as against a 2005 baseline, but each HEI sets its own target.
The targets apply to scope 1 and scope 2 emissions. Scope 1 emissions are direct emissions that occur from sources owned or controlled by the HEI, for example emissions from combustion in boilers/furnaces/vehicles. Scope 2 emissions are those from the generation of purchased electricity consumed by the HEI.
There is a further class of emissions, Scope 3. These are all other indirect emissions which are a consequence of the HEI’s activities, but occur from sources not owned or controlled by the HEI – for example, commuting, supply chain (procurement), waste and water. HEIs have to calculate their Scope 3 emissions but (at present) do not have to report on these, nor set a firm carbon reduction target for them. They do however have to include Scope 3 emissions in their implementation plan; in other words, HEIs need to have a plan, including timescale and resources, to reduce their carbon emissions arising from waste. The HEFCE has produced guidance to assist HEIs in measuring their Scope 3 emissions.
As well as these legal requirements to look at the waste they produce, there are financial incentives on HEIs to reduce their waste output. Landfill tax is set to increase to £80 per tonne from 2014, making it more costly to dispose of waste, and the mantra “reduce, re-use, recycle” is becoming more commonplace as Defra tries to promote the EU’s waste hierarchy and the move to a zero waste economy. A more efficient use of resources is an easy way for an HEI to save money.
Finally, and perhaps most importantly, there are the reputational benefits of being recognised as an environmentally sustainable organisation. This may well be a factor that influences students’ choice of institution. The HEFCE are currently consulting on ways that higher education contributes to sustainable development and how the HEFCE can support this.
For more information and advice on reducing waste, please contact David Kilduff or Ben Sheppard.

Charging for school activities
Schools (including academies) are restricted by law on what they can and cannot charge for. […]
Schools (including academies) are restricted by law on what they can and cannot charge for. They cannot charge for education provided during school hours but they can charge for ‘optional extras’ such as residential visits. The DfE has issued new advice reminding schools of what they are (and aren’t) entitled to charge for, and how to go about charging. Some key things to note from this advice are:
- Schools cannot ask for charges unless the governing body or the local authority has drawn up a charging policy giving details of the optional extras that they intend to charge for, and a remissions policy
- The remissions policy must set out any circumstances in which the school or local authority proposes to remit (in whole or in part) any charge, e.g. they may choose not to charge children who receive free school meals
- Schools can ask parents for voluntary contributions for optional extra activities but cannot pressurise parents into paying. However, they can make it clear that if they do not receive sufficient contributions, the activity will be cancelled
Schools must not exclude any child from an activity simply because their parents are unwilling or unable to pay but as stated above, they can make it clear that the activity will be cancelled if sufficient contributions are not received - Schools cannot ask some parents to subsidise others that might be unwilling or unable to pay. The charge for each child must not exceed the actual cost of providing the optional extra activity, divided equally by the number of pupils participating.
The advice also deals with charging for the use of community facilities, for example a swimming pool or gym at the school that is open to the general public outside of school hours. Our previous article At your leisure looked at this. Schools can charge for the use of these facilities, and can also generate a profit, as long as it is spent on the purposes of the school and/or on community facilities. It is important to stay within the bounds of charity law if you intend to do this, and Walker Morris can help you.

How do you protect your Intellectual Property? – schools, colleges and universities
Schools, colleges and universities, like any organisation or business, frequently use and create Intellectual Property […]
Schools, colleges and universities, like any organisation or business, frequently use and create Intellectual Property (IP), for example drawings, photographs, logos, etc. as part of their activities. It needs to be clear who owns the IP which is used or created to make sure that the rights vesting in it are owned by the correct entity and can be protected. Alan Harper explains the general rules in relation to the ownership of the main types of IP.
Copyright
Copyright seeks to protect the form of expression of ideas. It protects, for example, written works, scripts, drawings, sound recordings, films and broadcasts. This IP right arises automatically upon creation of a copyright work.
In relation to copyright works, the general rule is that the author of the work, defined as the person who creates the work, will be the owner of that copyright.
Where a work is made by an employee in the course of their employment, the employer will be the first owner of the copyright work, unless there is any agreement in place to the contrary. Employment contracts should deal with the ownership of IP which may be created to ensure that it is owned by the appropriate entity.
Where work is commissioned from a third party contractor, the default position is that the contractor will own the copyright, even though the commissioner has paid for the work to be done. As a result, it is essential to deal with the position on ownership of copyright in advance and contractually where work is commissioned to avoid problems later on.
Trade marks
A trade mark, or ‘brand’, is a sign which is used to differentiate one individual’s goods or services from another’s. Trade marks are broad and can protect, for example, names, labels, slogans and jingles.
Trade marks are a registered right, so it is important to know whether your logos and labels etc. are capable of registration. If you can register your mark then this will grant you the exclusive use of the mark in connection with the goods or services for which they are registered, which will prevent anyone else being able to use that trade mark. Trade marks are owned by the registered proprietor. It is important to consider whether you also own the copyright in the subject matter of your trade mark – see above.
Design rights
Design rights protect the appearance of functional products which have no aesthetic appeal.
The basic rule is that the designer is the first owner of design right in his or her work. Designs created by employees in the course of their employment will be owned by their employer, in the first instance.
Unlike copyright however, if work is commissioned, the first owner of the design right in the work will be the commissioner, although it is always best to agree the position of ownership contractually so as to avoid any uncertainty.
Patents
Patents protect the way things work and the methods for doing things. Patent applications can only be made by the owner of the invention, and the owner is generally the inventor, or their successor in title.
Although some inventions may be made by inventors in the course of their employment and their name will appear on the patent specification as inventors, their employers will usually own the patent. In the UK, an invention will belong to an employer if it was made in the course of the normal duties.
In the absence of express contractual provision to the contrary, the ownership of an invention made by an independent contractor will vest in the contractor. It is vital that ownership is dealt with in the contract.
Volunteers
Some people creating IP for education institutions may be volunteers. Volunteers will not qualify as ’employees’ or ‘third party contractors’, and so different rules apply. It is very important that the ownership of IP is established contractually from the outset.
Intellectual property, just like a physical asset, needs to be protected. To do so, you must bear in mind the ownership position of your IP to guarantee that you have rights to use it and, if required, enforce it.

Improving standards of governance in schools
According to recent figures, 2,481 secondary schools have converted to academy status, 883 schools have […]
According to recent figures, 2,481 secondary schools have converted to academy status, 883 schools have opened as academies with a sponsor, 1,500 primary schools have become or are in the process of becoming academies and 174 free schools have opened with a further 116 in the pipeline. The governors of these schools are taking on legal, financial and management responsibilities, as these academies are run along business lines with minimal support from the local authority.
Three recent announcements from the Department for Education (DfE) show that they are now expecting maintained schools to be run along similar lines. At present there is no requirement on governing bodies of maintained schools to prioritise the skills of a prospective governor, but that is set to change. The Chief Executive of the National Governors’ Association said in the DfE press release that “being a school governor is an important responsibility akin to being a non-executive director of a trust or company”. The DfE is therefore proposing to change the regulations that govern the constitution of governing bodies in maintained schools.
Consultation on changes to constitution of governing bodies
The DfE proposes to change the School Governance (Constitution) (England) Regulations 2012 to add a requirement that any newly-appointed governor (but not an elected parent governor or a staff governor) has “the skills required to contribute to the effective governance and success of the school”. Although the specific skills required by any school will vary, the new proposed statutory guidance that will accompany the revised 2012 Regulations states that “all governors need a strong commitment to the role, the inquisitiveness to question and analyse, and the willingness to learn. They need good inter-personal skills, a basic level of literacy in English (unless a governing body is prepared to make special arrangements), and sufficient numeracy skills to understand basic data.” Any governor appointed will therefore need to have these skills as a minimum.
At present, some school governing bodies are governed by the (less flexible) 2007 Constitution Regulations. The DfE intend to require all governing bodies to be constituted under the 2012 Regulations by September 2015. This will give them the flexibility to co-opt governors with the right skill set.
Guidance on the School Governance (Roles, Procedures and Allowances) (England) Regulations 2013
The second announcement from the DfE is some non-statutory (so not legally binding) advice for governing bodies of maintained schools in England. It explains what the 2013 Regulations (which replace a previous set from 2003) require of governing bodies. The key points are:
- ‘Boards of governors’ should operate at a strategic level, leaving the head teacher responsible and accountable for the operational day-to-day running of the school
- The board should concentrate on its key core functions:
- Setting the school’s vision and strategic direction
Holding the headteacher to account for its educational performance - Ensuring financial resources are well spent
- There needs to be a scheme of delegation but with the board as a whole retaining oversight of the core functions
- High quality professional clerking is crucial for the board to function effectively
- Procedures are more flexible than under the old regulations, with boards having the power to allow meetings to be conducted by telephone or video conference.
New Governors’ Handbook
The final announcement from the DfE is a new Governors’ Handbook, which replaces the Governors’ Guide to the Law that was published in May 2013. This applies to governors of academies and free schools as well as maintained schools. The main changes include a more detailed explanation of what it means for governors to play a strategic role and key considerations in determining the structure and membership of the governing body, reflecting the advice above. There is also an explanation of the role of academy trustees as charity trustees and company directors, and what the responsibilities of charity trustees are. This is something that our Academy Governors – Know Your Duties booklet deals with in more depth.
Need some help?
If your school is thinking of changing its governing body or constitution, or if your governors have any legal queries, our friendly and helpful Education Team is here to help so please get in touch.