The Bribery Act and fee discounts

  1. ISC, IAPS and HMC approached Oliver Hyams, a leading education and employment barrister, to advise on the impact of the Bribery Act 2010 on fee remissions made available by senior schools in respect of the cost of educating the children of Heads of feeder prep schools. The advice was sought following a client briefing note circulated by Farrer & Co in October 2013 which emphasised potential risks and liabilities.
  2. What follows is a summary of the conclusions and practical recommendations contained in the full opinion. Oliver has seen and endorsed this summary. His full opinion is also available to ISC schools: please contact if you would like a copy.

No infringement of the Bribery Act 2010

  1. Oliver does not consider that the various offences of bribery set out in the Act are committed arising out of these fee remission arrangements except in limited circumstances (see below): “I do not see the Act being breached in the circumstances under consideration, except in obvious cases of what one might call corrupt senior school owners giving fee discounts to observably corrupt prep school Heads.”

Limited circumstances for concern: senior school

  1. It would be an offence for a person acting on behalf of a senior school to give a fee discount to the Head of a prep school intending to induce the Head to perform improperly the activity of recommending a senior school for a pupil at the prep school, or intending to reward the Head for the improper performance of that activity.
  2. This includes the situation where the intention is to induce the Head to be subconsciously or unconsciously biased in favour of the senior school when making recommendations to the parents of pupils at the prep school.
  3. However, foresight of the possibility of such biased or partial recommendationwill not constitute such an intention unless it is a virtual certainty that the prep school Head’s advice will be biased or partial.

Limited circumstances for concern: prep school Head

  1. The conscious recommending by a prep school Head of a senior school for a pupil to any extent because of the giving to the Head by the senior school of a fee discount would be unlawful. So it would be an offence for the prep school Head to accept the fee discount intending to give biased or partial advice as a result.
  2. It would equally be an offence for the prep school Head either to give consciously biased advice in anticipation of receiving a fee discount or to accept a fee discount in reward for such biased advice.

Practical steps: disclosures

  1. Oliver sees some benefit to be gained from taking steps which would be likely to deflect any possible justified criticism on the part of the objective observer, whilst striking a balance between the interests of the various parties.
  2. The senior school must state formally to feeder prep school Heads its fee discount arrangements, including that the giving of a discount is not expected to influence in any way the judgment of the Head when recommending a senior school for a pupil. This is described as an essential requirement, with wording such as the following to be used:

“There is in the giving of this fee discount absolutely no expectation whatsoever that you will recommend this school for any of the pupils of [the Head’s] school if you do not genuinely believe it to be the right school for that pupil.Rather, we expect you always to put theinterests of each pupil first and to focus fully and solely on the needs andaptitudes of the pupil.”

  1. The prep school Head should acknowledge these conditions, with the following wording suggested:

“I acknowledge and agree that the fee discount is offered to, and accepted by, me on the basis that I shall not recommend [the senior school] for any of the pupils of my school unless I genuinely believe it to be the right school for that pupil. I confirm that I consider myself fully able to discharge my duties to the pupils and parents of my school professionally, impartially and in good faith regardless of the fee discount.”

  1. It is suggested that it is for the prep school Head to decide whether parents to whom the Head recommends the senior school are informed of the receipt by the Head of a fee discount.[1] Given that this is a matter of choice, there is no prescribed wording but the following is provided as a guide for use by a prep school:

“One of the proper roles of the Head is to help pupils and parents make decisions about future schooling. The Head will always put the interests of each pupil first and focus fully on the needs and aptitudes of the pupil. It is important that pupils and parents alike are confident that the advice they receive is impartial and tailored to their particular circumstances. The Head is happy to discuss and advise on all options, state and independent, and all independent schools. For the sake of complete transparency, the Head will also make clear to parents, when discussing senior schools attended by the Head’s children, whether the Head pays fees which are discounted from the standard rate (not including scholarships or bursaries awarded in the ordinary course).”

Please feel free to contact if you have any questions.

March 2014

-1-

[1] This is regarded as necessary only where one or more of the senior schools which the Head could reasonably have been expected to consider as an alternative for the pupil in question does not give a comparable fee discount, but to avoid any allegation of impropriety, the Head might decide always to disclose to parents the fact that the Head receives a fee discount: it is a matter for him or her.