HEADTEACHERS risk being sued by parents whose children are failing, according to councils responding to radical plans to transfer power to schools.

The warning comes in a response to a consultation on proposals for a new Headteachers’ Charter.

The charter – part of a new Education Bill to be introduced later this year – will allow school leaders to shape the curriculum, decide on how funding is allocated and choose staff.

The legislation places a new duty on heads to work with others to ensure every child achieves the “highest standards of literacy and numeracy” and the “range of skills, qualifications and achievements to allow them to succeed” regardless of their background.

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Under the current Standards in Scotland’s Schools Act councils are under a legal duty to educate pupils to their “fullest potential”.

Local authority umbrella body Cosla said extending the legal duty to headteachers would place them at greater risk of litigation where standards declined – particularly when they went against the advice of the local authority.

Its submission states: “If the proposals were to be laid before the Scottish Parliament as set out in the consultation document we have serious concerns that significant legal barriers would be created which would expose headteachers to personal liability.

“Cosla has received legal advice which sets out the significant consequences for both local authorities and headteachers should the proposals in the consultation be implemented.

“Local authorities will be required to produce extensive guidance for headteachers which they must follow as the authority will be vicariously liable for any acts or omissions of a headteacher.

“If a headteacher acts outside of guidance, it will be possible to sue individual headteachers. Therefore, all headteachers will require insurance extra to current local authority insurance.”

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Cosla said if headteachers were sued they would need to seek out their own legal advice independent of councils because of a potential conflict of interest if local authorities were part of the same action.

And they warned plans to give headteachers complete control over the hiring of staff could also result in legal action – with schools picking up a significant share of any costs.

The submission adds: “If headteachers have greater autonomy and therefore greater responsibility for their actions, it is likely that they will be required to pay the greater share of compensation even where a local authority is the second defender.”

The Educational Institute of Scotland (EIS) teaching union also raised concerns over the potential for legal challenge if heads were given total control over staffing decisions.

A spokesman said: “The language being used publicly around this proposal would seem to suggest that the headteacher would be all powerful in regard to appointments. Such an approach would be untenable.

“Clearly, appointments should not be made by single person appointment panels. As well as being poor employment practice and contrary to public sector appointment processes, such an approach would leave individuals open to the risk of challenge based on equality legislation.

“The EIS would find it unacceptable if changes led to headteachers becoming legally liable, as individuals, for decisions made around human resources functions, raising the possibility of individuals being pursued by litigation.”

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The Scottish Government, which introduced the Bill following concerns that decision-making by councils was sometimes divorced from what was required at school level, defended the plans.

A government spokeswoman said: “Our education reforms are focussed on giving schools and headteachers more power and money to raise standards and close the attainment gap.

“Our reform proposals are based on international evidence of how high-performing education systems work and will deliver extra help for teachers in the classroom, more professional development and a stronger voice for parents and pupils.

“We welcome feedback in response to our consultation on the Education (Scotland) Bill and will consider all the responses received.”

The Cosla submission goes on to issue a warning over the erosion of local democratic accountability for school decisions.

It said the increased focus on the role of headteacher fundamentally altered the balance from “collective accountability” across the system, to a situation where individual headteachers were personally accountable for their decisions.

It said: “If there is no responsibility for decision making at a local authority level, local authorities cannot be accountable for decisions taken and in turn there is a total loss of democratic accountability.

“The proposals as they currently stand would fundamentally undermine local democratic accountability. We are clear that the balance to be struck is increased, empowered decision making within an overall framework of the local authority as final arbiter. This is the only way to retain local democratic accountability.”