THE CONTENTS OF THIS POST HAVE NOW BEEN OVERTAKEN BY A DECISION OF THE UPPER TRIBUNAL AS DESCRIBED HERE. WHAT FOLLOWS BELOW IS THE ORIGINAL POST, UNCHANGED, IN CASE ANYONE WANTS TO SEE HOW THIS ISSUE EMERGED.
As explained here there have been rumblings for some while about whether SENDIST would start refusing to hear appeals from parents seeking places at academies for their children with statements of SEN.
Anyway, a leading Tribunal judge has, in the last few days, decided (at the request of the local authority in question) to ‘strike out’ an appeal by a parent seeking an academy placement for their child where the academy in question was refusing to consent to being named. An anonymised copy of the decision is below.
In summary, the judge decided to strike out the appeal on the basis that, even if the Tribunal was to uphold the appeal (and order the LA to name the academy in Part 4 of the child’s statement) the child/parent would not be able to force the academy to admit, such that the appeal had no prospects of success. (That’s the same thinking which leads the Tribunal to refuse to hear appeals where what the parent is seeking is an independent school which is refusing to agree to being named.)
Accordingly, the judge approached the question of whether the appeal had any prospects of succcess (and thus whether or not it should fail at this preliminary stage) by considering not just the appeal itself, but also the question of whether the parent would succeed in enforcing that decision against the academy (i.e. by a separate legal challenge, probably judicial review). Then, in considering that latter question of enforcement, she focussed on the particular terms of the funding agreement which, notably, is one of those earlier agreements which makes no mention of the Tribunal.
Obviously, that opens up many questions including:
- whether the Tribunal should have been looking at enforcement issues at all in deciding whether to allow the appeal to progress?
- if so, whether the question of enforcement turned on the particular wording of the particular funding agreement (i.e. might it be different in a younger academy with an agreement that speficically referred to the Tribunal?) or whether there are more fundamental issues such as whether parents/pupils can enforce funding agreements at all?
The judge has said she will give permission for an appeal to the Upper Tribunal. The UT may answer some of those questions. For now, I will refrain from giving my view on how they should be answered!
Anyway, I understand that there are several other similar cases ‘stayed’ waiting for the outcome of the argument in this csae. No doubt others may stack up in the queue if other academies follow the lead of those which have dug in so far.
Certainly, the Department’s long-standing contention that parents/pupils have the same rights (including in relation to SEN and the SENDIST) is now in real doubt.
If the parent’s appeal to the UT fails, that will show the extent to which parents/pupils have reduced rights when it comes to academies.
I assume that the academy in question will argue that to be the case. Likewise the local authority. It will be interesting to see what stance the Secretary of State takes on the point.
So, finally, here then is the Tribunal decision in question:
1. XXXXX appealed on the 5 March 2012 against the contents of parts 2, 3 and 4 of their son, XXXXXs statement of special educational needs dated 10 February 2012. In it, XXXXX (LA), named in part 4 of the statement XXXXX Academy, rather than the school of parental preference, XXXXX Academy.
2. XXXXX will transfer from primary to secondary provision in September 2012 and for that reason, the appeal has been expedited and the final hearing is listed for the 11 June 2012.
3. The LA response dated 18 April 2012 contained a request that the appeal should be struck out. It explains that “Academies” are mainstream schools for the purposes of section 316(4) of the Education Act 1996 but are not “maintained” schools. It is submitted that “Academies” are independent schools in the context of the appeal and Schedule 27 of the Education Act 1996 does not apply, further the funding agreement between the XXXXX Academy and the Secretary of State for Education makes no reference to the jurisdiction of the Tribunal over the XXXXX Academy’s decision to admit a pupil and therefore any decision made by the Tribunal to name the school cannot be legally binding.
4. I have noted XXXXX’s submission that the Department of Education confirms that academies are required to follow the same law and guidance on admissions as maintained schools, but the issue for the Tribunal is the prospect of success in the appeal and I consider that the issue is the enforceability of its final order relating to a statement of special educational needs. The Tribunal’s jurisdiction does not extend to admission appeals, and is solely concerned with the child’s special educational needs.
5. I conclude that the position under the current legislation is as follows: Part IV of the Education Act 1996 (“the Act”) sets out the obligations in relation to children with special educational needs. Section 321 imposes a general duty upon a local authority towards children with special educational needs; section 323 the obligation to make an assessment of the child’s educational needs and section 324, the duty to make and maintain a statement of special educational needs where necessary.
6. Section 324(5)(b) states that the governing body of a maintained school, the name of which is specified in a statement, shall admit the child to the school.
7. Schedule 27 of the Act has effect in relation to the making and maintenance of statement and paragraph 3 of the Schedule sets out the process for enabling parents to express a preference as to the maintained school at which they wish education to be provided for the child.
8. Section 312(5) provides the definition of a “maintained school” for the purposes of Part IV. The definition does not include an academy. Hence, section 324(5)(b) and Schedule 27(3) do not apply to academies.
9. The Funding Agreement of XXXX Academy dated XXXXX and made between the Academy Trust and the Secretary of State for Education and Skills, identifies at paragraph 7 the Academy Trust’s undertaking to establish and maintain an independent school and the agreement sets out the characteristics, conditions and requirements imposed upon the Academy and the Academy Trust.
10. The Tribunal, on appeal, can name an independent school in Part 4 of a statement. In the absence of the statutory obligation imposed by section 324(5)(b) of the Act to admit a child following a successful appeal, the Tribunal has imposed a requirement that independent schools, in respect of which a party is appealing, provide written confirmation of the availability and offer of a place for the child. The written confirmation must be produced in the course of the appeal, thus ensuring that the decision of the Tribunal is enforceable in the event that the appeal is successful.
11. XXXXX Academy has refused to provide the parents in the present appeal with such a confirmation of place and has provided a letter explaining why it is not prepared to make an offer of place for XXXXX.
12. The arrangements for admission of pupils with special educational needs are contained in Annex 3 of the Funding Agreement and contains no reference at all to the Secretary of State’s expectations of XXXXX Academy in the event of a Tribunal decision naming it in Part 4 of the statement. Paragraph 24 states that where a local authority proposes to name the XXXXX Academy in a statement, the Academy shall consent to being named except where admitting the child would be incompatible with the provision of efficient education for other children and where no reasonable steps may be made to secure compatibility.
13. Paragraph 26 provides that “In the event of any disagreement between the XXXXX Academy and the local education authority over the proposed naming of the XXXXX Academy in the statement, the Academy may ask the Secretary of State to determine whether XXXXX Community Academy should be named. The Secretary of State’s determination shall be final”.
14. The Annex does not include any agreement to implement decisions of the Tribunal and whilst I assume that the reference to “XXXXX Academy” in paragraph 26 is a typing error, the paragraph makes provision for resolution of any dispute regarding the suitability of XXXXX Academy by the Secretary of State, whose determination shall be final.
15. The Funding Agreement, which is an agreement between the Academy Trust and the Secretary of State setting out the terms and conditions for the running of the “independent school”, makes no provision for recognition or implementation of a decision of the Tribunal and does not import into the agreement any obligation on the Academy Trust to implement any decision of the Tribunal.
16. Therefore, even if the Tribunal were to decide that XXXXX Academy should be named in Part 4 of XXXXX’s statement at the conclusion of the appeal, the Academy has not consented to admit him and will not admit him as a pupil, and the order of the Tribunal would not be enforceable in law as would a decision naming a maintained school.
17. I conclude that in practical and legal terms, the appeal has no reasonable prospect of success and should be struck out pursuant to Rule 8(4)(c) of the Tribunal Procedure Rules 2008.
19. I am aware that the decision in the present appeal will be of great concern to XXXXX’s parents and to parents of other children with special educational needs seeking admission to academies, especially those facing secondary transfer in September 2012. I consider that the decision in the appeal has a significant impact on XXXXX’s interests as well as a wider public interest and because of the exceptional circumstances, where the interests of the child have already led to the appeal being expedited so that a decision is made before the end of the current academic year regarding placement in September 2012, should an application for permission to appeal be made I would be prepared to give the parents permission to appeal to the Upper Tribunal my decision striking out the appeal, as well as permission to appeal upon the issues of legitimate expectation and the legitimacy of the lack of reference to appeals to the Tribunal in the Funding Agreement
20. In order to facilitate the expedition of the Upper Tribunal appeal, I direct that a copy of the order should also be sent to the Upper Tribunal for its information.
It is ordered:
1. The appeal is struck out pursuant to Rule 8(4)(c) of the Tribunal Procedure Rules 2008 on the basis that it has no reasonable prospect of success.
2. A copy of the order is to be issued to the Upper Tribunal