Can we force an academy to make the provision set out in part 3 of our child’s statement? (updated)

The short answer is: it depends which academy/free school!

The full answer is quite complex, as follows.

For general stuff about statements of SEN and the law see this separate post. For information about appealing against the content of a statement of SEN see this post. For information about forcing an academy to admit a pupil when named in the pupil’s statement of SEN see this post.

Part 3 of a statement should specify the special educational provision which the child requires.

When it comes to actually getting the provision, Section 324(5)(a)(i) of the Education Act 1996 provides that: “Where a local education authority maintain a statement under this section, then … unless the child’s parent has made suitable arrangements, the authority … shall arrange that the special educational provision specified in the statement is made for the child.”

That means that the local authority must arrange the provision (which means provide and/or pay for it if no-one else has done so).

Pupils can bring judicial review proceedings against the local authority to enforce that.

The courts have made clear that the obligation is an absolute legal obligation on the local authority: it is not merely a ‘best endeavours’ obligation.

However, it also means that neither maintained schools nor academies/free schools are under any direct obligation when it comes to making the provision in a statement of SEN. On that basis, politicians say that the position is the same in both – i.e. that pupils in academies/free schools are in no worse position. They are narrowly correct.

But that overlooks an important difference between maintained schools and academies. It goes like this:

  • Maintained schools operate under schemes of financial delegation under section 48 of the School Standards and Framework Act 1998. Such schemes can provide for “amounts which may be charged against schools’ budget shares” – i.e. what the local authority can get back from the school, and in what circumstances.
  • The SEN Code of Practice suggests how that can be used to ensure that children in maintained schools get the provision in their Statement (paragraph 8.6): “LEAs have a duty under section 324 of the Education Act 1996 to arrange the special educational provision in a child’s statement. LEAs may provide the facility in their funding arrangements to intervene where a pupil is not receiving the provision in their statement and
    make the arrangements themselves, charging the costs to the school’s budget.”
  • In my experience, local authorities follow that advice and include ‘clawback’ provisions in their delegation schemes.
  • That means that, if a child is not getting from their maintained school what their statement specifies they should get, they can force the local authority to step in and arrange the provision and, in practice, the local authority can force the school actually to make the provision.

So what about in academies and free schools?

It’s complicated.

Most (but not necessarilly all funding agreements) include an obligation on academy/free school governors to “use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made” (or similar wording).

Some older funding agreements did that directly, by actually stating that obligation in those words. Others, including those based on the current model agreement, do it by cross referring to the obligation which section 317 of the Education Act 1996 imposes on the governing bodies of maintained schools.

But, notably, that obligation on governors is still only a ‘best endeavours’ obligation.

However, the newest academies and free schools include an obligation in their funding agreement which directly requires them to make the provision set out in a child’s statement of SEN. See this post.

So if, for example, a child’s statement of SEN specified that they required 20 hours of 1:1 LSA per week but their school was providing only 10 hours per week (perhaps because it did not think it had enough money to make the full provision – a common excuse):

  • If they were in a maintained school, the child (in practice through their parent) would challenge the local authority for failing to comply with its section 324(5)(a)i) duty as above, and the local authority would rely on the provisions of its scheme of delegation to force the school to make the provision. If necessary, the pupil could bring judicial review proceedings against the local authority.
  • If they were in an older academy/free school, the child would challenge the local authority for failing to comply with its section 324(5)(a)i) duty as above but the local authority would say, correctly, that there was nothing it could really do to help as it had no control over the academy/free school. Nor would it (in the end) help to challenge the academy/free school because – as above – it would, at most, be under a ‘best endeavours’ obligation. Nor would it help to complain to the Secretary of State because all he can do is push an academy/free school to comply with its funding agreement (which would not help).
  • If it was one of the newest, the child could bring judicial review proceedings against the academy/free school and/or the local authority.

So the claim of parity does not bear scrutiny.

For an example of the second situation in practice, see this post.

 

 

 

  2 comments for “Can we force an academy to make the provision set out in part 3 of our child’s statement? (updated)

  1. Leise
    November 19, 2011 at 7:32 am

    In these circumstances, could you challenge the academy under the Equalities Act that by not allowing the child to have the provision you were discriminating against their acess to education?

  2. November 21, 2011 at 8:07 pm

    You could certainly argue that the statement set out the steps which should be taken by way of ‘reasonable adjustments’ to remove disadvantage. But those things which were (arguably) auxiliary aids or services might be tricky (because that part of the equality act obligation is not in force) and, in any case, it would allow the academy to argue that the steps were not, for some reason, ‘reasonable’. So an option, but not one I see as providing a real solution, certainly not universally or equivalent to the position in a maintained school.

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