THIS POST HAS NOW BEEN OVERTAKEN BY EVENTS – AS EXPLAINED HERE.
UPDATE ON THE UPDATE
A leading Tribunal judge has decided that SENDIST should not hear an appeal seeking a placement at an academy. The case is likely to go to the Upper Tribunal. See here.
THE TEXT BELOW SETS OUT THE BASIS ON WHICH IT CAN BE SAID (AND AS APPEARS TO HAVE BEEN GENERALLY ACCEPTED UP TO NOW) THAT SENDIST CAN (IN EFFECT) OVERRIDE THE POSITION OF AN ACADEMY WHICH IS REFUSING TO CONSENT TO THE ADMISSION OF A CHILD WITH A STATEMENT OF SEN.
HOWEVER, THE CURRENT PRACTICE OF THE SENDIST (FOLLOWING MASS REFUSALS OF CONSENT BY SOME ACADEMIES) IS TO TREAT ACADEMIES LIKE ANY OTHER INDEPENDENT SCHOOL AND REFUSE EVEN TO DEAL WITH AN APPEAL WHERE THE ACADEMY WILL NOT AGREE AT THE OUTSET THAT IT WILL TAKE THE PUPIL IF THE SENDIST SAYS IT SHOULD (WHICH, OF COURSE, THE ACADEMY IS UNLIKELY TO AGREE TO DO).
I AM AWARE OF A NUMBER OF CASES CURRENTLY BEFORE THE SENDIST RAISING THIS QUESTION. IT WILL, NO DOUBT, REQUIRE AN APPEAL TO THE UPPER TRIBUNAL OR EVEN COURT OF APPEAL TO RESOLVE THE POINT.
ONE VIEW, WHICH MAY WELL PREVAIL, IS THAT SENDIST SHOULD NOT BE NAMING ACADEMIES BECAUSE (SO IT WOULD BE ARGUED) THERE IS NO POINT IN DOING SO AS A PUPIL COULD NOT FORCE THE ACADEMY TO ADMIT THEM.
THAT WOULD LEAVE IN TATTERS ANY CLAIM THAT STUDENTS WITH SEN HAVE EQUIVALENT RIGHTS IN RELATION TO ACADEMIES AS IN RELATION TO MAINTAINED SCHOOLS.
I KNOW THAT IPSEA IS KEEN TO HEAR OF CASES RAISING THIS POINT.
WATCH THIS SPACE.
The short answer is yes but it is not straightforward.
Another post asks whether a local authority can name an academy/free school in a statement of SEN when that school does not want to take the child in question.
But what about where the local authority has refused to do so and the parent then appeals to the SENDIST against that refusal?
When it considers the appeal, the SENDIST is effectively in the same position as the local authority (in the way explained in the other post) except that, obviously, anything in the funding agreement which talks about the local authority consulting the academy/free school before considering naming it has no bearing by the time the case gets to an appeal.
The extra twist, of course, is that an appeal to the SENDIST is an appeal against the local authority’s decision not to name the academy. It is not, directly at least, against the academy’s reluctance to being named (although, of course, the local authority will probably only have declined the parental request because of the academy’s reluctance.)
Assuming, in that light, that the SENDIST is, in effect, dealing with the consequences of an academy’s refusal to consent to being named, what test should it apply in deciding whether to allow the appeal?
- that the academy should consent to being named “unless that is incompatible with the efficient education of other children and no reasonable steps can be taken to remove that incompatibility” (or similar); also
- that the academy must admit the child in compliance with a SENDIST order (i.e. an order by SENDIST requiring the local authority to amend the statement of SEN to name the academy).
But how does the SENDIST then approach its job?
On one view, in a case where the funding agreement is in terms like those above (and not all are!), the SENDIST is only looking to see whether the academy/free school applied the terms of its funding agreement properly. That would be limited to two questions:
- did it apply the rules from its own funding agreeement at all?
- if so, does the SENDIST agree with the answer it came up with in applying those rules?
As for the the first, I have personal experience of academies specifically deciding not to follow the admissions rules relating to SEN as set out in their funding agreements – just because they did not like those rules. So it cannot be assumed that academies/free schools which reject pupils with statements of SEN have even tried to act legally.
As for the second point, the issue (assuming a funding agreement in the terms above) is the view the academy took on the questions of “incompatibility”, “reasonable steps”, and so on. In other words, the SENDIST is considering whether (in its view) the academy overstated any problems arising from the child’s attendance (the “incompatibility”), or underestimated the potential solutions to those problems (the “reasonable steps”), when considering whether (as required by its funding agreement if in those terms) to ‘consent’ to beiing named on the child’s statement?
But actually, there is no reason to limit the SENDIST‘s role in that way. In particular, there is no reason to think that the SENDIST is only considering whether the academy has correctly applied the test in its particular funding agreement. After all, the funding agreement is a contract between the Secretary of State and the academy/free school. It does not bind the parents, nor the local authority nor the SENDIST because none are parties to it. So why should the SENDIST 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), is that the SENDIST is not just considering whether (as above) the academy was right to withhold its consent by reference to the terms of the particular academy/free school’s funding agreement (and potentially overruling its view on that question), it should also itself the wider and more general question of whether (in the language of section 324(4) of the Education Act 1996) this particualar academy is the school “which they [i.e. the SENDIST] consider would be appropriate for the child and should be specified in the statement”. That is a wider and open question. If the SENDIST thinks the academy is appropriate and should be specified, it can order the local authority to specify it, regardless of what the particular funding agreement says.
As far as I know, the question of whether the SENDIST’s remit is constrained by the terms of the particular funding agreement has not been tested in a SENDIST, let alone in an appeal (to the Upper Tribunal) from a SENDIST (which is what would establish a legal precedent).