The short answer is that what the Department says, including in legal documents, often glosses over many of the distinctions between maintained schools and academies/free schools and/or between different academies/free school in a way which can be quite misleading.
Unfortunately, there seems to be a tendency to make sweeping statements about what happens in ‘schools’ without making clear that what is being said only applies in maintained schools and not to academies/free schools; or to make statements about what happens in academies/free schools which may appply in some (generally the newer ones and those created using the current model funding agreement) but not others.
For example, the Department says things like:
- “Section 88A of the SSFA 1998 prohibits the interviewing of parents and/or children as a method for deciding whether a child is to be offered a place at a school.” School Admissions Code 2010 paragraph 1.52
- “Academies must have regard to the SEN code of practice and statutory guidance on inclusion.” Academy Principals Handbook 2009 but apparently an updated version being published “soon” section 8
- “The admission authority for the school or Academy may refuse to admit a child who has been excluded twice….” School Admissions Code 2010 Paragraph 3.30:
Those claims of equality with the position in maintained schools are consistent with what Ministers said to parliament when promoting those parts of the Education Act 2002 which originally provided for Academies. For example, Stephen Timms (then Schools Minister) told the Education Bill Committee on 15 January 2002: Hansard, House of Commons, Standing Committee G, Column 423; see also Lord McIntosh Hansard, House of Lords, 23 May 2003 column 994 and 995
“I can give the hon. Gentleman the particular assurance that he seeks. Academies—unlike city technology colleges, by the way—will comply in full with the requirements on special educational needs and admissions and exclusions legislation as it applies to maintained schools.”
Unfortunately, the Departmental statements above are not true, or certainly not universally true:
- Section 88A of the SSFA [School Standards and Framework Act] 1998 only applies to maintained schools but not to Academies. Some academies have that obligation incorporated into their funding agreements. But others do not.
- The obligation to have regard to the SEN Code of Practice and the statutory guidance on inclusion does not apply to all academies – indeed it was not notably even applied to some of the Academies set up immediately following the Ministerial commitments to ensure that Academies would be required to comply with the law relating to special educational needs as it applies to maintained schools (see Peckham Academy, August 2002, West London Academy June 2003, Stockley Academy November 2003).
- While some Academies could lawfully refuse to admit a pupil on the grounds that he/she had been permanently excluded from two other schools, others could not – they would have to admit.
Stephen Timms’ assurance was only partly happened fulfilled by the Labour Government. And the Coalition government has not changed things much in that regard.
At a more general level, the Department behaves as if parents/pupils have the same essentially the same rights at academies/free schools as they do in maintained schools. If that were the case, there would be no need for for this blog. At the simplest level of analysis: most the rights in question are, at best, in funding agreements. But there are real questions (including it seems in the mind of the Department) about whether parents/pupils can enforce those rights (which they undoubtedly could with the equivalent statutory rights at maintained schools).