Correction – in newer academies/free schools, pupils can directly challenge a failure to make provision for SEN

I have just noticed that the current model funding agreement for new academies and free schools would (where used as the basis for actual agreements) directly impose on them an obliation to make the provision set out in a child’s statement of SEN. For example, clause 63 of the current ‘standalone academy’ model says this:

“The Academy Trust shall ensure that all provision detailed in statements of SEN is provided for such pupils.”

There is no equivalent in older funding agreements. Of course, it could be added if those older ones were amended by agreement.

Anyway, that now means that:

  • for a pupil with a Statement of SEN in a maintained school, there is no direct obligation on the school to make the provision in question, but the LA is under an obligation and can use its powers under its scheme of financial delegation to force the school to deliver. The pupil can bring judicial review proceedings to force the LA to do that.
  • for a pupil in an academy using the new model, the pupil could bring a judicial review challenge against either the LA or the academy, or both, if the provision was not being made
  • for a pupil in an older academy, the pupil would (as explained in this post) have to bring the challenge against the local authority, which would be powerless to force the academy to make the provision; and there is no way the pupil could challenge the academy.

Sorry for not spotting that before!

  9 comments for “Correction – in newer academies/free schools, pupils can directly challenge a failure to make provision for SEN

  1. Ernest Potter
    February 8, 2012 at 11:29 am

    I am anti-academies from an sen provision point of view, including admission procedures and access to ancillary help.I am involved in arguments via letters in the local press. Am I right
    to be totally opposed? Ernie

  2. Tracy
    February 10, 2012 at 9:16 pm

    Hi this really interesting, but how does assessment work both statutory and if for example your child needs an updated ed psych assessment. Where a local authority provides a range of services such as ed psych, dyslexia support advice, movement and coordination and information technology advice……. Will academies be able to access this. If not will an academy be obliged to provide this and can parents still request this input.

    A further question is does a school considering to become an academy need to undertake a disability impact assessment, prior to deciding and going ahead

    Many thanks for all the info on this site

  3. DW
    March 7, 2012 at 9:45 pm

    An academy could ‘but in’ those services from the local authority. But it is not obliged to buy them in (from the LA or anywhere else for that matter) unless that is required by the statement of SEN for a particular child. And even then, it depends on the funding agreement for the particular academy. As another post on here explains, academies created most recently have funding agreements which require them to provide the provision in statements of SEN for children at the academy. For older academies it is less straightforward. If you have a child whose statement specifies provision which the academy is not making for them, then (as another post explains) they could probably bring a judicial review; and they would probably get legal aid to do so (so the lawyers would be paid for).

  4. DW
    March 7, 2012 at 9:48 pm

    It’s hard to give a simple answer to that. Older academies had very legal weak protections for children with SEN. Newer ones are better. But, as explained elsewhere on this blog, there are still serious issues about whether pupils/parents have any legal rights at all, or can enforce them. In the end it generally comes down to whether the head/governors are supportive of pupils with SEN or not rather than the law – so hard to generalise. If you know of particular pupils who are not being properly treated by an academy, you should encourage their parents to get legal advice for them (they would probably get legal aid to pay for the lawyer).

  5. alan sawyer
    May 5, 2012 at 8:26 pm

    So David are you saying that the parent would have to buy in the services for a child’s SEN assessment? or the Academy would be compelled to, under their funding agreement? This is very shaky ground don’t you think? My son’s school is proposing to change to an Academy, he has special needs and the access to services does concern me. I always understood that Statements were statutory and something Academies were obligated to follow. What is the obligation with school action plus?

  6. Elizabeth
    May 8, 2012 at 11:05 am

    Primary school was on 200 list, now in upward trend so choosing voluntary academisation, with diocese as trustees / sponsor. School has specialist provision unit attached providing for SLCN statemented children. How can the unit be protected. Particularly if SENDIST not keen to name academies. Parents have recently fought to keep this unit open, from LA closure.

  7. alan sawyer
    May 9, 2012 at 7:34 pm

    Very interesting Elizabeth. I work for a Charity in Appeals and I was not aware that SENDIST did not recommend Academies. As I understand it the LEA’s should still be responsible for special needs and Academies have to take children with statements, if named. This is what we have been told in training anyway. The funding agreements can be a bit vague, but Academies should in principle treat special needs as the same as maintained. DW is right its making sure the funding agreement is water tight. I have to say it looks like Academies are going to be able to opt out of anything but minimal funding, be interesting how much Local authorities can press home statements.

  8. beverley livingston
    November 15, 2012 at 4:47 pm

    Can an academy refuse to admit a child where the local authroity have named the academy of the child’s statement? It has been one month since the academy was named in the statement and they are refusing to discuss this with the local authority and the parent. What can we do

  9. DW
    November 18, 2012 at 10:50 am

    The answer is (or at least should be) no. This was an issue dealt with obliquely in the Upper Tribunal decision covered in this post. The decision concerned whether the SENDIST should hear an appeal seeking a place at an academy that did not want the child in question. Once of the issues was whether an academy, if named in a statement of SEN, should admit the child. The UT said yes, although the method for enforcing that which it identified may be a bit convoluted.

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