In this post I explained how the SENDIST had decided that it could not hear an appeal seeking a placement for a child with a statement of SEN at an academy which was refusing to agree to take the child.
Anyway, the Upper Tribunal (UT) has now quashed that decision and held that the Tribunal can, after all, hear the case.
A copy of the full UT decision is available here.
You will notice that the Secretary of State put in evidence to the UT explaining his current policy of forcing academies to take children where their Statement names the Academy. Among other things he said this:
“The Secretary of State wishes to make it clear at the outset that the Department’s policy is that parents who wish an Academy to be named in a child’s statement of Special Educational Needs (SEN) should have the same rights of appeal to the First-tier Tribunal (the Tribunal) in relation to the statement as parents who wish for a maintained school to be named.”
The Secretary of State also said this:
“All funding agreements between the Secretary of State and Academies require that where a local authority proposes to name an Academy in a statement of SEN made in accordance with section 324 of the Education Act 1996, the Academy must 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. In determining whether a child’s inclusion would be incompatible with the efficient education of other children, the Academy is required to have regard to any relevant guidance issued by the Secretary of State to maintained schools. Where there is any disagreement between the Academy and the local authority over the proposed naming of the Academy in a statement of SEN, the funding agreements make provision for the Academy to request the Secretary of State to make a determination.”
That, as it happens, is not correct. Not all funding agreements include those provisions.
The Secretary of State also said this:
“Should an Academy refuse to comply, the Secretary of State could seek to enforce compliance by way of an application to the courts for specific performance of the funding agreement.”
“Specific performance” means an order in civil court proceedings where the court orders a party to do what it is required in a contract to do.
“… were the Tribunal to order a local authority to name an Academy with a pre-2010 funding agreement the Secretary of State finds it very difficult to envisage circumstances in which he would disagree with the Tribunal should an Academy refer the matter to him for determination.”
Placing heavy reliance on all that, the UT judge held that:
- The Tribunal had been correct to consider whether, were it to name Mossbourne, the parent might – in practice – be able to secure a place at Mossbourne for their child. (In other words, the Tribunal could not ignore that issue and press on with hearing an appeal even when there was no way a parent could get the place in practice, as is the case at a private school).
- Mossbourne’s funding agreement would mean that, if it was named in Part 4 of a child’s statement of SEN, it would be under a contractual obligation to admit the child.
“A local authority or, on appeal, the First-tier Tribunal ought not to name Mossbourne unless it is satisfied that the admission of the child would be compatible with the provision of efficient education to other pupils there and that therefore its view is that Mossbourne should admit the child. If an appeal is successful and the local authority is ordered to name Mossbourne, that order would be subject to the consent of Mossbourne or the Secretary of State. However, it would be made in the expectation that Mossbourne would – or, at least, in their view should – give their consent. The local authority must therefore propose to Mossbourne that the statement be amended in the light of the First-tier Tribunal’s decision. Mossbourne would at least be bound to have regard to the First-tier Tribunal’s reasoning and it would no doubt also have regard to the likelihood of the Secretary of State agreeing with the First-tier Tribunal if the case were referred to him. If it still refused its consent, the case would be referred to the Secretary of State. If he decided that Mossbourne should not be named, the local authority would refer the case back to the First-tier Tribunal, which would be able to review its decision under section 9 of the Tribunals’ Courts and Enforcement Act 2007 and rule 48 of the 2008 Rules.”
- Overall then:
“The First-tier Tribunal is not entitled to strike out a case merely because the academy’s current view is that it will not admit the child in question, although it could in theory strike an appeal out on the basis that the appellant had no prospect of persuading the First-tier Tribunal to take a different view from that of the academy.”
So, at least for now, it is clear that the Tribunal can at least hear appeals which seek places at Academies with newer style funding agreements.
It remains to be seen what will happen in practice including what happens if any Academies refuse to admit children having been named in those children’s statements by order of the Tribunal.
Although the UT judge has identified mechanisms by which that can be secured (most particularly the option of the parent asking the Secretary of State to take proceedings in court against the Academy for breach of contract) those mechanisms are not straighforward (compared at least to what would be the position if a maintained school refused to admit in equivalent circumstances, which does sometimes happen).
Those mechanisms also rely on it remaining the policy of the (current) Secretary of State to take such action. A different Secretary of State could decide that he/she was generally not going to impose on Academies in that way.
I doubt this will be the end of it when it comes to issues around Tribunal appeals and enforcement in relation to admission of children with statements to Academies.
And notably, the UT judge said nothing about the conclusion which the Tribunal judge reached to the effect that parents/pupils could not (in judicial review proceedings or any other kind of proceedings) directly enforce the terms of a funding agreement. As above, his analysis sidesteps that issue.