Can a local authority name an academy or free school in Part 4 of a child’s statement of SEN against its wishes?

The short answer is yes, but it is not straightforward.

Let me start with a description of the position with schools generally before focussing on how it works with academies/free schools.

The fact that a school (any school) does not want to take a child, does not stop a local authority from naming that school in a statement of SEN. That is because section 324(4)(b) of the Education Act 1996  allows a local authority to “specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement.” There is nothing there to say that they cannot name a school that does not want the child.

Nonetheless, an important practical issue in deciding whether it is appropriate to name a particular school where the school was unwilling may be the question of whether the parent/pupil could insist on being admitted if the statement named the school regardless. So even if the local authority could name a school that would resist taking the child (and which could not be forced to do so), there would probably not much point in it doing so.

The question of whether a school can be forced to take a child it does not want depends on the type of school: maintained, ordinary independent, or academy/free school:

  • If the school in question is a maintained school, then section 324(5)(b) requires the governors to admit the child if the school were to be named in their statement. That gives the pupil in that position an absolute legal right to be admitted which they can enforce by judicial review. So there is no issue with the local authority naming such a school even if, having been consulted, the school still does not want to take the pupil.
  • Of course there is no point in a local authority naming an ordinary independent school which is unwilling to be named because there is no way that the pupil or their parents could force the school to take the child.
  • The question of whether an an academy/free school must admit a child when named in a statement is more  complex, as explained in another post. But, the purposes of this post, I will assume that, if an academy is indeed named in a child’s statement, then it will have to admit that child. That means that the local authority should be able to proceed on the basis that, if they name the academy/free school, the child will attend.

So, back on the original question of whether to name an academy/free school in part 4.

As ever, the important thing is the funding agreement for the particular academy/free school.

And funding agreements vary so make sure you check the one which is specific to this particular academy/free school – don’t rely on any general commentary or description.

The latest academies/free schools are likely to have funding agreements based on the current model funding agreement. It includes fairly complex procedures as quoted below. Where those procedures apply, they make the situation nearly the same as at a maintained school. But the procedures set out in funding agreements for older (pre September 2010) academies are much more streamlined, even more so with the oldest ones.

But even with academies created most recently, the rules put in place by the funding agreement are still only nearly the same as at a maintained school because:

  • There is still an issue about whether parents/pupils (or for that matter a local authority) can force an academy/free school to act in accordance with the requirements of its funding agreement in the first place; and
  • The Department’s view seems (from letters I have seen) to be that a local authority should not overule an academy/free school where the academy/free school has not consented to being named (in contrast to the position with a maintained school where there is no problem in naming a school despite it being unwilling). But, as far as I know, the Department has given no legal explanation or basis for that view. And I am not aware of any basis for it: given that the local authority is not a party to the contract, how can it be bound by the terms of the contract? But if the Department is somehow, that puts parents/pupils (and indeed local authorities) in a much weaker position when it comes to getting places in academies/free schools.

But finally before setting out the text of the current model funding agreement, let me re-emphasise that you must not assume that this text is what applies to any particular academy. It will not be the same for academies created before September 2010 and maybe not even for the newer ones. The extent of the difference depends, in broad terms, on how long before then the academy was set up, and what special arrangement the academy negotiated with the Department at the time.

But with that major health warning, let me set out the relevant text of the current model agreement (with underlining added by me):

  1. Where a local authority (“LA”) proposes to name the Academy in a statement of SEN made in accordance with section 324 of the Education Act 1996, it must give the Academy Trust written notice that it so proposes.  Within 15 days of receipt of the LA’s notice that it proposes to name the Academy in a statement, the Academy Trust 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 deciding whether a child’s inclusion would be incompatible with the efficient education of other children, the Academy Trust must have regard to the relevant guidance issued by the Secretary of State to maintained schools.
  2. If the Academy Trust determines that admitting the child would be incompatible with the provision of efficient education, it must, within 15 days of receipt of the LA’s notice, notify the LA in writing that it does not agree that the Academy should be named in the pupil’s statement.  Such notice must set out all the facts and matters the Academy relies upon in support of its contention that: (a) admitting the child would be incompatible with efficiently educating other children; and (b)the Academy Trust cannot take reasonable steps to secure this compatibility.
  3. After service by the Academy Trust on the LA of any notice (further to paragraph 7 above) stating that it does not agree with the LA’s proposal that the Academy be named, the Academy Trust must seek to establish from the LA, as soon as is reasonably practicable, whether or not the LA agrees with the Academy Trust.  If the LA notifies the Academy that it does not agree with the Academy Trust’s response, and names the Academy in the child’s statement, the Academy Trust must admit the child to the school on the date specified in the statement or on the date specified by the LA.
  4. Where the Academy Trust consider that the Academy should not have been named in a child’s statement, they may ask the Secretary of State to determine that the LA has acted unreasonably in naming the Academy and to make an order directing the LA to reconsider.
  5. The Secretary of State’s determination shall, subject only to any right of appeal which any parent or guardian of the child may have to the First-tier Tribunal (Special Educational Needs and Disability), be final.

Accordingly, those provisions, where they are in the funding agreement for the particular academy:

  • set up a process for local authorities to consult with academies (although, of course, it cannot bind local authorities because they are not a party to the funding agreement!)
  • explain when an academy must (in a contractual obligation to the Secretary of State) ‘consent’ to being named
  • say nothing (nor could they with any binding force given that the local authority is not a party to the agreement) about when a local authority can and cannot overrule the academy’s view, and
  • explain how an academy can challenge when a local authority wants to name it anyway

The last three of those deserve more comment:

Firstly, when must an academy with a funding agreement in those terms consent to being named?

The text above says that: “the Academy Trust 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 deciding whether a child’s inclusion would be incompatible with the efficient education of other children, the Academy Trust must have regard to the relevant guidance issued by the Secretary of State to maintained schools.”

That is, in essence a combination of the provisions set out in paragraph 3(3) of schedule 27 (which applies where parents want a maintained school) and section 316 of the Education Act 1996 (which applies where parents want a mainstream school). So, at least in terms of the actual text of the test to be applied, it is pretty much the same as at a maintained (mainstream) school. (It’s not clear what will happen if and when there are academies which are special schools.)

Secondly, how should a local authority decide whether to name the academy/free school regardless of its opposition?

On one view, in a case where the funding agreement is in terms like those above, the local authority is simply looking to see if it agrees with the view the academy took on the questions of “incompatibility” and “reasonable steps” and so on. In other words, did the academy overstate the problems or underestimate the potential solutions to those problems, when considering whether (as required by its funding agreement) to ‘consent’?

But there is no reason to see the issue in such narrow terms. After all, the funding agreement is a contract between the Secretary of State and the academy/free school whcih does not bind the parents nor the local authority (because they are not parties to it).  So why should the local authority see things through the terms of reference of the funding agreement? No reason.

In my view the correct approach (assuming that the funding agreement includes the provisions mentioned above), the local authority is not just considering whether (as above) the academy was right to withhold its consent (and potentially overruling its view on that question) it is also itself the wider and more general question of whether (in the language of section 324(4) of the Education Act 1996) whether this particular academy is the school “which they [i.e. the local authority] consider would be appropriate for the child and should be specified in the statement”. That is a much wider and much more open question. If the local authority thinks the academy is appropriate and should be specified, it can name it in the statement.

Thirdly, what if the academy is unhappy?

If the academy/free school (where its funding agreement is in the terms above) is not happy to be named:

“… the Academy Trust must admit the child to the school on the date specified in the statement or on the date specified by the LA [i.e. while the dispute is being sorted out]” but “… they may ask the Secretary of State to determine that the LA has acted unreasonably in naming the Academy and to make an order directing the LA to reconsider” and “the Secretary of State’s determination shall, subject only to any right of appeal which any parent or guardian of the child may have to the First-tier Tribunal (Special Educational Needs and Disability), be final.”

So the academy can, in effect, appeal to the Secretary of State against the Secretary of State. But, importantly, the Secretary of State can only intervene if he thinks that the local authority has acted “unreasonably” in naming the academy despite its opposition. It is not enough that he disagrees with the local authority’s assessment (of ‘compatibility’ or of the wider question of whether it is ‘appropriate’). So it’s a very limited right of appeal for academies against local authorities.

Finally

Just a reminder: This is very much an area where the subtle differences between different funding agreements could make a bid difference to the practicalities of the legal consequence. What I have described above is the position for the newest academies/free schools. Very much ‘a can of worms’ this one.

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