A “significant” number of schools are considering launching collective legal action over a major school management information system (MIS) supplier’s new contract proposal, Tes can reveal.
Education Software Solutions (ESS) - the dominant school MIS in England - wrote to schools last month stating it would automatically extend its contracts from one year to three years, giving schools until February 2022 to sign up or find an alternative.
Law firm Stone King is considering possible legal action against ESS SIMS on behalf of schools after 366 school staff attended a briefing it held on the matter this week.
The firm is holding a further briefing on the issue on Monday (6 December) where it “will review whether the actions of ESS may be the subject of a legal challenge”.
Stone King says: “The short notice given to schools appears to be legally questionable.”
MIS legal bid
Tes understands that at least 100 school leaders raised their hands when asked during the briefing whether they would be willing to join collective action against ESS SIMS.
Graham Burns, partner at Stone King, told Tes that schools were reporting that ESS was offering no flexibility on terms and that this was putting them in a difficult position at a time they were facing huge difficulties due to Covid.
“The last thing they wanted was to have a problem with their MIS, which is integral to the proper running of their school,” Burns said. “We would expect greater notice to be given so it can be properly cared for and managed in a way that takes into account the stresses on schools caused by Covid. Instead, schools have been given very short notice and placed under intolerable pressure.”
He said the question of whether schools would like to join “collective action” had “a lot of support”.
“We have been busy today receiving instructions from schools and academy trusts. I am expecting a significant number, which I would be able to announce next week,” he said.
SIMs was taken over by ParentPay Group in August. The sale came after Capita sold ESS last year to Montagu Private Equity for £400 million.
Simon Oxenham, chief financial officer at Southend High School for Boys academy trust, said: “We have found the support from ParentPay really poor. When asked for a roadmap of where they are going in the future, they haven’t [replied].”
Oxenham, who is also the Institute of School Business Leadership (ISBL) national lead on school finance, added: “They are offering a three- to five-year renewal [by February] which is leaving it so late that most trusts or schools would struggle to source an alternative.
“If ParentPay wanted to choose the self-destruct button they have probably ended up choosing the nuclear option.”
DfE intervention?
The Department for Education advised schools two weeks ago to “pause before agreeing” to the new contract while it investigated the changes.
A spokesperson for the ParentPay group said the DfE is set to issue a statement saying schools no longer need to hold off from signing because the change in contract terms are consistent with those of other suppliers to schools.
However, the DfE did not confirm this after Tes requested information today.
ESS SIMS says on its website: “Our legal advisers have informed us that whilst the Departments officers are entitled to their opinions concerning schools’ procurement processes, they are unaware of any statutory powers held by the Department in this regard.”
Stephen Morales, chief executive of ISBL, said the ISBL raised the issue with the commercial team at the DfE last month, encouraging them to investigate.
“I think the key thing is to apply pressure to ParentPay not to use aggressive commercial tactics on an important public service,” he said.
“We don’t want a situation where a single provider has a monopoly over the system and we don’t want school leaders feeling backed into a corner with no choice because they always have choice. The data is so important to headteachers they don’t dare to lose it.”
ParentPay has said the new three-year contracts came in to keep up with its competitors. It says costs would be fixed for the first year but the next two years could see price increases.
ParentPay has been contacted for comment on potential legal action.
