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Expert evidence about SEN

August 19th, 2015 by Rachel Kamm

The Upper Tribunal has considered how the First-tier Tribunal should approach expert evidence about special educational needs and provision: The Royal Borough of Kensington and Chelsea v CD [2015] UKUT 0396 (AAC).

In this case, the parents had appealed to the First-tier Tribunal (HESC) about the local authority’s SEN statement for B, who was almost 13 and profoundly deaf. There was a dispute about her special educational needs in relation to class size (Part 3 of the SEN statement) and also which school she should attend (Part 4).

The parents and the local authority each instructed an acoustic engineer to undertake an assessment of the acoustic characteristics of the two schools that were under consideration and each acoustic engineer produced a report. The expert instructed by the local authority concluded that both schools had acoustical strengths and weaknesses, but that relatively straightforward steps could be taken to resolve any issues. The expert instructed by the parents concluded that the noise levels at the local authority’s preferred school were low for a mainstream state school, but significantly higher than the noise levels expected in much smaller classes. His view was that it was very difficult to see how B would not be significantly disadvantaged by having even part of her learning in classes of 20 or more children and therefore the local authority’s preferred school was not suitable.  Neither expert attended the hearing.

The First-tier Tribunal found that it was not appropriate for it to make findings of facts based on the expert reports, commenting that “The contents of the reports had not been agreed and the subject matter of the reports was highly technical. Given the importance of the evidence, if the subject matter and conclusions of the authors was disputed (and the parties indicated at the outset of the hearing that there was no dispute) then the authors of the reports should have been available to give evidence“. The Tribunal found that there should be a maximum class size of 20 (based on the evidence of the Educational Psychologist, SENCO and B’s mother).

The local authority appealed to the Upper Tribunal, which set aside the decision and remitted the appeal for a fresh hearing by a differently constituted First-tier Tribunal.  The First-tier Tribunal had erred in law in how it approached the expert evidence.

The first problem was that the First-tier Tribunal had created a difficult situation for itself by not discussing the expert reports at the start of the hearing. The Upper Tribunal found that it would have been preferable if the First-tier Tribunal had established at the outset of the hearing precisely which parts of the reports were agreed, which parts were not agreed, and, if there were areas of dispute, how the parties were inviting the First-tier Tribunal to resolve the disputed matters (whether by calling the experts to give oral evidence or doing the best it could on the written evidence).

The failure to have this kind of discussion had led to  the First-tier Tribunal discovering that there was an issue in relation to the expert evidence when it read the parties’ written closing submissions after the hearing was adjourned at the end of the oral evidence.  The Upper Tribunal found that, contrary to the suggestion in the First-tier Tribunal’s judgment, the local authority in fact had raised an issue in relation to the expert evidence in its written closing submissions, inviting the First-tier Tribunal to prefer the expert that they had appointed on the question of class size. The Upper Tribunal commented that even at that stage, the First-tier Tribunal still had options which could have resolved the problem: it “may have called for further written submissions on how to resolve the issues between the experts. It may have decided to hold a further hearing so that the experts could have been called to give evidence. Or it may have considered that any further submissions or evidence would have been entirely disproportionate, and made findings on the basis of the written reports. Instead, the tribunal simply decided that it was not appropriate to make findings on the basis of the experts’ reports “as the contents of the reports had not been agreed and the subject matter of the reports was highly technical.” That was not an adequate reason for refusing to consider and make findings on the expert evidence and, in [the Upper Tribunal’s] judgment, it constituted an abdication of responsibility on the part of the tribunal“. This was the reason why the decision was set aside.

The Upper Tribunal went on to give the following guidance:

“32. On the basis of what has happened in this case, it may be helpful if I make some observations on how what may be described as “non-standard” expert evidence may be dealt with. It is crucial that I emphasise that I am not, here, considering the “standard” type of evidence of educational psychology, speech and language therapy and occupational therapy.

33. As in all cases, the parties and tribunal must bear in mind the provisions of the overriding objective of rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the First-tier Tribunal Rules”) – that dealing with a case fairly and justly includes dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.

34. Further, whilst I am, of course, mindful of the fact that the Civil Procedure Rules 1998 do not apply to First-tier Special Educational Needs and Disability Tribunals, and that un-necessary formality in those tribunal proceedings must be avoided, nevertheless, in my judgment Part 35 of the Civil Procedure Rules provides a useful backdrop in relation to case management decisions concerning expert evidence in such tribunals, and I draw upon it.

35. With that introduction, the starting point must be that expert evidence should be restricted to that which is reasonably required to resolve the appeal. If a party intends to seek to rely upon expert evidence, then pursuant to the duty under rule 2(4) of the First-tier Tribunal Rules, this should be communicated to the other party as soon as possible. If (as is likely in most cases) the issue falls within a substantially established area of knowledge, where it is not necessary for the tribunal to sample a range of opinion, it may well be that the evidence should be provided by a written report of a single expert jointly instructed by the parties. 

36. Any issues regarding expert evidence should, of course, be apparent from the parties’ respective Attendance Forms. Upon perusal of those Attendance Forms a tribunal judge may wish to decide whether and, if so, how to exercise his or her discretion to give directions as to expert evidence. In doing so, he or she will be mindful of: (i) rule 15(1)(c) of the First-tier Tribunal Rules, which provides that, without restriction on its general case management powers, “the tribunal may give directions as to … whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence,” and (ii) the observations which I have made at paragraphs 33 – 35 above. It may well be that the parties would have to make out a strong case either for relying on expert evidence from an expert who had not been jointly instructed, or for requiring oral evidence of an expert at the hearing of the appeal.

37. Further, in giving any case management directions relating to expert evidence it would be helpful to all involved if the tribunal judge were to identify precisely the issues which the experts are to address.

Rachel Kamm, 11KBW, @Kamm11KBW

New statutory instruments

August 18th, 2015 by Rachel Kamm

This is a quick post to alert readers to the following regulations, which are all due to come into force on 1 September 2015:

Rachel Kamm, 11KBW

Student loans, immigration controls and human rights

August 17th, 2015 by Rachel Kamm

Ms Tigere has lived in the UK since 2001 and she currently has discretionary leave to remain. She will be able to apply for indefinite leave to remain in 2018. Last year, she was refused a student loan because of her immigration status i.e. she was not settled in the UK. The Supreme Court (majority 3:2) has over-turned the Court of Appeal and found that this settlement criterion  breached her rights under Article 14 read with Article 2 of the First Protocol of the ECHR: R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57.

In summary, the Court has found that the settlement criterion for student loans discriminates on ground of immigration status in the enjoyment of the right to education. The regulations in question pursued a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay. However, the means chosen to pursue that legitimate aim were not rationally connected to it; Ms Tigere had discretionary leave to remain in the UK and an established private life here.  A bright line rule which more closely fitted the legitimate aims of the measure could have been chosen.

I blogged about the High Court and Court of Appeal decisions last year. There is an excellent summary of the Supreme Court’s decision on the UK Human Rights blog. The Supreme Court’s own press summary is also available.

Rachel Kamm, 11KBW

September 2015 Pay and Conditions Guidance

August 11th, 2015 by Holly Stout

The DfE has published the new guidance on school teachers’ pay and conditions.  The guidance applies to teachers employed by a local authority or by the governing body of a foundation, voluntary aided or foundation special school.  It does not apply to academies.

No major changes to pay and conditions from previous years, the guidance simply adopts the School Teachers Review Board recommendations in their 25th report for the new pay award:

  • A 1% uplift has been applied to the statutory minima and maxima of all pay ranges in the national pay framework, including allowances, with two exceptions – a 2% increase to the maximum of the main pay range and no increase to the maxima of the eight headteacher pay group ranges.
  • Where a classroom teacher/leadership group member is paid on the minimum of their pay range/band, their salary – excluding any allowances – must be uplifted to the new minimum.
  • For all other classroom teachers/leadership group members, schools must determine – in accordance with their own pay policy – how to apply the uplift to individual salaries and pay ranges and how to take account of the uplift to the national framework in making individual pay progression decisions.

The new pay award has effect from 1 September 2015 by virtue of the School Teachers Pay and Conditions Order 2015.

Holly Stout

Education law in the news

July 18th, 2015 by Rachel Kamm

There have been a few interesting education stories in the news recently.

The BBC reports that a Chelsea Mum has won a home-schooling appeal at the Old Bailey. She was convicted last year for failing to comply with a school attendance order for her youngest son, Gabriel. The case was bought by the Royal Borough of Kensington and Chelsea but Ms Sotello appealed the conviction and won her case at the Old Bailey.

The Department for Education has published a Command Paper setting out the Government’s response to the Education Select Committee report “Extremism in schools: the Trojan horse affair“. This was covered by the Guardian and the BBC (who reported the views of Birmingham’s Education Commissioner and Ofsted’s chief). The Telegraph reported that the Department would be introducing a national database of school governors in wake of the concerns.

Further to my post about the Education and Adoption Bill, there is more detail from DfE about the intended meaning of a “coasting school”, which would be eligible for intervention:

“Schools eligible for intervention will be those which fall below a new ‘coasting’ level for 3 years.

In 2014 and 2015 that level will be set at 60% of pupils achieving 5 good GCSEs or an above-average proportion of pupils making acceptable progress. From 2016, the level will be set based on Progress 8 – our new accountability measure, which shows how much progress pupils in a particular school make between the end of primary school and their GCSEs.
At primary level, the definition will apply to those schools who have seen fewer than 85% of children achieving an acceptable secondary-ready standard in reading, writing and maths over the course of 3 years, and who have seen insufficient pupil progress.”

In Wales, the Welsh Government has published a draft of its Additional Learning Needs and Education Tribunal (Wales) Bill. It has put the draft out to consultation which will run until December 2015.

The Tribunal Procedure (Amendment) Rules 2015 will come into force on 21 August 2015 and make minor amendments to the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social
Care Chamber) Rules 2008. The explanatory note explains that they identify “the correct respondent in claims under Schedule 17 to the Equality Act 2010 (c. 15) for schools of different types. Rule 10 updates the rule relating to circumstances in which a person requires permission to appeal to the Tribunal by adding in reference to regulation 20(3) of the Special Educational Needs and Disability (Detained Persons) Regulations 2015 (S.I. 2015/62)“.

Turning to higher education, the Department for Business Innovation & Skills is consulting on targeting funding for disabled students in Higher Education from 2016/17 onwards. Responses are due by 24 September 2015. The paper says that:

This consultation seeks to gather specific information and evidence on a range of support available through DSAs including accommodation, peripheral computer equipment (such as printers and scanners), consumables (for example paper and ink), and NonMedical Help (NMH) provision (the additional human support needed to enable an individual to access HE, for example library assistants or sign-language interpreters). It seeks views on how HE providers can best meet the legal duties placed upon them, particularly with regard to the areas outlined above, and how DSAs can complement such support. 4. The results of this consultation will help the Government to determine which types of support for disabled students should be supplied to students by DSAs and which should be provided in part or whole by HE providers in accordance with the duties placed upon them by the Equality Act 2010.

Finally, a law student who failed the Bar Professional Training Course has been unsuccessful in his application for judicial review of the General Council of the Bar and the University of Law. He had failed the opinion writing element twice and therefore failed the course. Mr Justice Hickinbottom summarised the grounds of claim as follows:

Ground 1: The Claimant has already in fact shown himself competent in opinion writing, as evidenced in particular by his “Very competent” grade in his Personal Injury option which required the writing of an opinion. The BSB erred in law in not recognising that fact.

Ground 2: If, contrary to the assertion in Ground 1, the Claimant has not already shown himself to be competent in opinion writing, the BSB failed to exercise any discretion to consider exempting him from a part of the BPTC requirements, namely the requirement to re-take the whole course if an individual assessment is failed twice. The BSB has not brought its mind to bear on this matter.

Ground 3: If it had brought its mind to bear on the matter, then the BSB ought to have concluded that this is a case for the exercise of the discretion in favour of the Claimant, who ought to be allowed to re-take the Opinion Writing module alone. In particular, in all of the circumstances, including the Claimant’s own personal circumstances, to require him to re-take the whole BPTC would be disproportionate on the basis that (a) it would breach the common law duty on a public body not to act disproportionately and/or (b) it would be in breach of his rights to private life under article 8 of the European Convention on Human Rights (“article 8”).

Ground 4: The BSB failed to give adequate reasons for its decision not to accept that he had in fact sufficiently demonstrated competency in opinion writing, and/or not to modify the requirement to take the entire BPTC again.

All four grounds were dismissed.

Rachel Kamm, 11KBW, @kamm11kbw


International students

June 18th, 2015 by James Goudie QC

R (London College of Finance and Accounting) v Secretary of State for the Home Department (2015) EWHC 1688 (Admin) is yet another decision on an attempted judicial review of the suspension and/or revocation of a Tier 4 Sponsor Licence.  The power of the Secretary of State (“the SoS”) to issue and regulate Tier 4 Sponsor Licences is one of a range of ancillary and incidental administrative powers vested in the SoS. The regime is effectively run by the ‘UK Visas and Immigration’ (“UKVI”) section within the Home Office and its operation is governed not by the Immigration Act 1971 itself, but within policy guidance documentation (‘Sponsor Guidance’) which is issued and amended on behalf of the SoS with “bewildering frequency” (per Lord Sumption in New London College).

The Sponsor Guidance lays down mandatory requirements governing (i) the criteria for the award of a Sponsor’s Licence, (ii) the obligations of those to whom a Licence has been awarded, (iii) the criteria to be applied by a Licensed Sponsor in issuing a CAS (Confirmation of Acceptance for Studies), and (iv) the procedure and criteria for suspending, downgrading or withdrawing a Sponsor’s Licence. The grant of a CAS by an educational institution is not tantamount to leave to enter or remain, but it is believed to be strong (albeit not conclusive) evidence of some of the matters which are relevant to the migrant’s application in that regard. Leave to enter or remain continues to be the responsibility of immigration officers and the SoS, who retain the last word in each individual case.

The Sponsor Guidance is extensive.  Its key provisions include that:

i) Sponsorship is based on the principle that those who benefit most from migration (including education providers) must help to prevent the system from being abused. Tier 4 is the primary immigration route available to students who wish to study full-time in the UK. Any Licensed Sponsor is expected to play its part in ensuring that the system is not abused;

ii) A Tier 4 Sponsor Licence lasts for four years unless it is revoked or surrendered; each Sponsor is obliged to apply for Highly Trusted Sponsor status no later than 12 months from the date of the grant of the Licence;

iii) Licence to Sponsor Tier 4 (General) applies to migrants aged over 16 coming to the United Kingdom for study (as opposed to Tier 4 (Child) for those aged 16 and under);

iv) Essential to the student’s ability to enter the UK for study is the CAS. The CAS is not an actual certificate or paper document, but is a virtual document similar to a database record. This record will be generated by the Tier 4 Sponsor for each student who they will be sponsoring. Each CAS has a unique reference number, and contains information about the course of study for which it has been issued (including the start and end dates of the course) and the student’s personal details. Having a valid CAS does not guarantee that the student’s application will necessarily be successful but it goes a considerable way to achieving this;

v) Crucially, a Tier 4 Sponsor must assess the student’s level of English language competence as part of the academic assessment of the student’s ability to follow a particular course; before issuing a CAS, the Tier 4 Sponsor must be satisfied that “the student intends and is able to follow the course of study concerned”.

vi) There are various ways in which potential students can demonstrate their English language ability for the purposes of applying for a CAS; they may do so by passing an English language test approved by UKVI (at the appropriate level) or their sponsoring educational institution can judge their English language ability. A small group of suppliers of the Secure English Language Test (“SELT”) is approved by, and work under licence to, the SoS.

vii) The English language tests are all expected to conform with the Common European Framework for Reference (“CEFR”); the relevant test for Tier 4 students was the ‘Test of English for International Communication’ (“TOEIC”) which examines in listening, reading, speaking and writing;

viii)  Under the points based system introduced in 2009, students applying for Tier 4 study require 40 points in order to be considered favourably by the SoS; 30 of those points derive from having a valid CAS from a fully licensed Tier 4 Sponsor, the remaining 10 points are satisfied by proof of financial independence;

ix)  If studying with a Tier 4 Sponsor, a student must obtain a CAS for a course that leads to an approved qualification for Home Office purposes and approved at level 3 or above on the National Qualifications Framework (“NQF”) or Qualifications and Credits Framework (“QCF”) in England, Wales and Northern Ireland;

x)  Where a student is following a course of study at NQF 6 or QCF 6 or above with a Sponsor which is a UK Higher Education Institute, the Sponsor may choose its own method to check that the student is competent in English language at a minimum of CEFR level B2 in each of the four components. The Sponsor must confirm that the student is proficient to the required level on the CAS.

In relation to suspension and revocation of a Sponsor’s Tier 4 licence, the specific provisions of the Sponsor Guidance include that:

i)  The SoS (by UKVI) reserves “the right to take action against the Sponsor if he has reason to believe the Sponsor poses a threat to immigration control”;

ii)  A licence will be suspended if the Sponsor cannot meet the standards UKVI has set for HTS status; this sets a timetable running, giving the Sponsor 20 working days from the date of the notification to submit representations; if following that period, the Sponsor still fails to meet the criteria the HTS licence will be revoked;

iii)  There are exacting requirements for Sponsor compliance: “we expect you to continue to thoroughly assess each student’s intention and ability to undertake their course of study with you before you assign a CAS to them”;

iv)  If UKVI consider that the Sponsor has not been complying with its duties, has been dishonest in its dealings with UKVI, or it is a threat to immigration control in some other way, UKVI will take action against the Sponsor which may be by way of suspension or revocation;

v)  Suspension will occur if UKVI have reason to believe that the Sponsor is breaching its sponsorship duties and/or are a threat to immigration control… to the extent that UKVI may have to revoke the Sponsor’s Licence;

vi)  While suspended, a Sponsor is unable to issue any new CAS; students already Sponsored will not be affected;

vii)  Suspension can take effect in one of two ways:

(a)  “if we are satisfied that we have enough evidence to suspend your licence without the need for further investigation. We will write to you giving detailed reasons for suspending your licence”;

b)  “if we have evidence that warrants your licence being suspended pending a full investigation, we will write to you giving our initial reasons for the suspension and informing you that an investigation will take place … when we have finished our investigation we will write to you again, giving detailed reasons for suspending your licence.”.

viii)  Where paragraph 153(a) is invoked, the Sponsor is given 20 working days from the date of the written notification to respond to UKVI in writing (including sending in evidence); where paragraph 153(b) is invoked there is a built-in provision for the Sponsor to make representations during investigation;

ix)  If further reasons are identified for the suspension during the 20-day period, UKVI will write again to the Sponsor giving an additional 20 days to respond;

x)  UKVI will notify the Sponsor of its decision within 20 working days of receiving the Sponsor’s response, unless there are grounds for delaying the response;

xi)  In certain circumstances UKVI will implement revocation of the Sponsor Licence. Mandatory revocation will occur for any “single” reason (of the twenty possible reasons) set out in a Table in the Guidance, including when:

“[the Sponsor has] offered places and assigned CAS for students who are not from the countries we define as ‘majority English-speaking countries’, without first properly assessing their English language ability”;
“[the Sponsor has] offered places to Tier 4 (General) students and the main course of study does not lead to an approved qualification for our purposes”.

xii)  The summary and final nature of the revocation is underlined by §166 which provides that:
“If any of the circumstances in the table above arise, we will revoke your licence immediately. We will write to tell you that we have revoked your licence. There is no right of appeal…”

xiii)  The discretionary route to revocation of the licence is provided for in paragraph 167 of the Sponsor Guidance which provides that consideration will be given to the revocation of licence where (among twenty-seven possible reasons):

i) The Sponsor has failed to comply with any of its duties;

ii) “[UKVI is] not satisfied that [the Sponsor is] using the processes or procedures necessary to fully comply with [its] Sponsor duties”.

xiv)  This discretionary route is further explained by paragraph169 which provides:

“We may not always revoke your licence in the circumstances set out in the table above. Whilst we cannot precisely define the exceptional circumstances in which we will not, this decision will be based on such factors as the number of breaches, previous history and the efforts you have made to address these issues”.

Cobb J set out all of the above in his Judgment in the London College of Finance & Accountancy case, and then distilled the following propositions from the case law which were relevant to that case:

i)  The status of a Licensed Sponsor is central to the operation of the points-based system for international students; for institutions with a high proportion of non-EEA students, the status of Licensed Sponsor may be essential to enable them to operate as functioning businesses;

ii)  The SoS must be able to repose very substantial trust in Sponsors in the vital function of monitoring compliance of its students with immigration law;

iii) The SoS rightly has “stringent” powers to suspend or revoke a Sponsor if they become concerned that the Sponsor is not complying with its obligations;

iv) The SoS “can and indeed should” take steps to suspend or revoke if she has reasonable grounds for suspecting that “a breach of immigration control might occur”;

v)  The Courts must respect the particular experience and expertise of UKVI in detecting the possibility that a Sponsor might not be, or might be at risk of not, complying with its duties; the exercise of the SoS’s discretion should not be interfered with lightly; the Court is exercising a supervisory jurisdiction;

vi) The SoS can take steps to revoke or suspend if she has reasonable grounds for suspecting that a breach of immigration control might occur, provided of course that she complies with her public law duties;

vii) Authorisation to grant a CAS is a “privilege”, and carries with it significant responsibility; a Sponsor, therefore has a substantial duty to ensure that the rules relating to immigration control are adhered to strictly and properly; colleges need to be “assiduous” and “vigilant” in meeting their responsibilities;

viii) Even if some of the cases give rise to consideration of the same regulatory territory, each case is fact-specific.

Cobb J further observed as follows:-

“31.   The accreditation issue: Accreditation is the process by which an awarding body decides whether or not a course, or courses, provided by a given college meets its standards. If a college offers a place on a course leading to a qualification for which it has not been accredited, it is, in essence, offering its own course and its own qualification. … The Claimant’s argument is that as long as the course was accredited by the time it was actually provided and/or completed, then the Sponsor had complied with the expectation of the Guidance. The Defendant argues that the accreditation must be in place before the course is offered.

32. In my judgment, the Sponsor must be in a position to ensure that “the main course of study” should lead to “an approved qualification” at that time that it is “offered to Tier 4 (General) Students” in order to comply with the Sponsor Guidance (emphasis by underlining added). It is not appropriate, or in the spirit of the Sponsor Guidance, for Sponsors to offer the course on the basis of a hope or expectation of accreditation at some point further down the line. What if the course is not ultimately accredited? It would mean that the students would not be engaged in a course of study which leads to an approved qualification. … Where any doubt exists about the interpretation of the Sponsor Guidance (even though no doubt exists in my view here),  … the guidance should be interpreted strictly.”

“38. … students who wish to study in the United Kingdom must demonstrate that they have an adequate understanding of English, and that they can communicate in English to a reasonable level. … The responsibility of the Tier 4 Sponsor is to satisfy itself that at the point of application the proposed student has the ability (including the English language ability) and intention to undertake their course of study and that this is demonstrated to the satisfaction of the Tier 4 licence holder during the currency of the course …

39. In this case, as in Cranford and other cases, a significant ground for concern was the issue by the Tier 4 Sponsor of large numbers of CAS to students who had apparently cheated in their TOEIC test. As to the approach I should adopt to this particular issue, I respectfully follow Andrews J in Cranford thus:

19.  “Of course each case is highly fact-specific. However, the following general principles can be distilled from [recent authorities]:

i)  If a Tier 4 Sponsor has assigned CAS’s to a significant number of students with “invalid” ETS TOEIC results, and then failed to report them as having inadequate English, that gives grounds for reasonable suspicion that the Sponsor was failing in its duties to:

a)  Adequately assess the ability and intention of the students to study on the chosen course before assigning CAS’s to them and

b)  Monitor, and report bogus students to the UKBA.

ii)  The onus is on the Sponsor to allay that suspicion, for example by providing examples of coursework demonstrating that the students did in fact speak/understand English to the appropriate standard;

iii)  If the SSHD takes a Wednesbury reasonable view that the evidence is insufficient to allay that suspicion, she is entitled to revoke the Tier 4 licence.”

40. Consistent with this approach is the fact that within the Sponsor Guidance, mandatory grounds for revocation include that the Sponsor has “offered places and assigned CAS for students … without first properly assessing their English language ability”.”

“42. “… If a student obtains any document in pursuit of his/her immigration application by deception, that person is not likely to be concerned with complying with the Immigration Rules. It is reasonable for the Defendant to have inferred that such individuals are more likely to be using a Tier 4 migrant visa as a means of getting into the UK for another purpose. This point comes back to the important and overarching expectation on Sponsors to have identified and rejected (or reported) such persons either at the candidate selection stage or after enrolment.

43. The Defendant was also entitled to the view that where significant numbers of students had fraudulently obtained the TOEIC certificates it would be a “significant gauge” of the college’s ability or willingness to monitor its students if they were not, during the course of their studies, discovered by the college to have inadequate English language skills…

44. The Defendant asserts with force it seems to me that a trustworthy Sponsor should notice if the student spoke inadequate English, or failed to turn up for classes or do their coursework. If a Sponsor did notice such failures, they should withdraw sponsorship.”

James Goudie QC

Education and Adoption Bill published

June 4th, 2015 by Rachel Kamm

The Education and Adoption Bill was presented to Parliament on 3 June 2015.  The proposed legislation would make the following changes to education law in England and Wales.No date has been announced yet for the second reading.

The circumstances in which the Secretary of State can intervene in a maintained school

The Bill would provide for intervention in maintained coasting schools (clause 1). Note that there is no definition on the face of the Bill of a coasting school, save that the school has been notified that the Secretary of State considers it to be a coasting school. There would be a power for the Secretary of State to include a definition in regulations. There has been much media coverage of this proposal e.g. in the Guardian here and here, the BBC here  and here, and the Daily Mail here.

The Bill also would enable the Secretary of State (as well as the local authority) to give a warning notice to a maintained school about performance standards, a breakdown in governance or safety under section 60 of the Education and Inspections Act 2006 (clause 2). A warning from the Secretary of State would trump any previous warning notice given by the local authority and prevent the local authority from giving a warning notice.

Governing bodies would no longer have the right to make representations to the Chief Inspector about a warning notice given under section 60 of the Education and Inspections Act 2006 (clause 2). Similarly, governing bodies would not have the right to make representations to the local authority about a warning notice about teachers’ pay and conditions under section 60A of the Education and Inspections Act 2006 (clause 3).

Types of intervention

The Bill would enable the Secretary of State (as well as the local authority) to require a maintained school that is eligible for intervention (except in relation to teachers’ pay and conditions) to contract/arrange to receive advice from a specified person, to collaborate with another school or further education body, or to take steps to join/create a federation (clause 4).

Where a local authority was appointing interim executive members of a governing body, the Bill would enable the Secretary of State to direct a local authority about who to appoint as interim executive members, how many to appoint, their terms and conditions, and termination of appointments (clause 5).

There would be provision about  the inter-action of the various Secretary of State and local authority interventions (clause 6).

Academy conversions

Importantly, the Bill would amend the Academies Act 2020 to require the Secretary of State to make an academy order if a maintained school was eligible for intervention by virtue of section 61 or 62 of the Education and Inspections Act 2006 (schools requiring significant improvement or schools requiring special measures) (clause 7) – see media coverage in the Telegraph, Guardian and BBC.

The requirement to consult before academy conversion would be limited by the Bill. It would provide  for the governing body (and not the proposed sponsor) to consult about whether an academy conversion should take place before a school is converted into an academy. However there would be no requirement for consultation about whether an academy conversion should take place where the Secretary of State was required to make the academy order by virtue of clause 7 (clause 8). Instead, the Secretary of State would have to consult the trustees, the person who appointed the foundation governors and any applicable appropriate religious body  about the identity of the sponsor (clause 9).

Where there was an academy order, the Bill would require the governing body and local authority to take all reasonable steps to facilitate the conversion of the school into an academy and to facilitate the making of academy arrangements with any specified person (clause 10). The Secretary of State would have the power to direct the governing body and local authority to take specified steps to facilitate conversion (clause 11).

Finally, the Bill would enable the Secretary of State to revoke an academy order (clause 12).

Rachel Kamm, 11KBW, @kamm11kbw

Upper Tribunal decisions on Part 4 of SEN statements

May 31st, 2015 by Rachel Kamm

After a little holiday for the blog, we are back and you can expect a flurry of posts over the next few days.

First up, MA v Borough of Kensington and Chelsea (SEN) [2015] UKUT 0186 (AAC). In this judgment, the Upper Tribunal considers the legal status of an ASD unit within a mainstream school.

MA’s parents’ wanted a particular independent school named in Part 4 of MA’s SEN statement. By definition, an independent school is not a mainstream school (with limited exceptions) and therefore section 316 of the Education Act 1996 (which, in summary, gives parents a right to a mainstream school placement) did not apply. The First-tier Tribunal found that the independent school was not suitable for MA and therefore did not name it in Part 4. The parents were refused permission to appeal against this aspect of the decision.

The First-tier Tribunal went on to consider the local authority’s proposed school. This was an ASD unit, which was set up by a mainstream primary school. The First-tier Tribunal concluded that the ASD unit was part of the mainstream primary school and therefore counted as a mainstream school placement (even though it was in a separate building from the rest of the school and there would be limited integration). The Upper Tribunal agreed. This is thought to be the first decision that has expressly found that a SEN unit within a mainstream school is a mainstream school placement as a matter of law, which is important when considering parental preferences.

The Upper Tribunal also looked at parental wishes in  KC v LB Hammersmith and Fulham (SEN) [2015] UKUT 0177 (AAC). In this case, B’s parents wanted her to attend a specialist independent school. This was not a mainstream school for the purposes of section 316 of the Education Act 1996. The local authority proposed a special maintained school (also not a mainstream school). The first task for the First-tier Tribunal was to carry out the balancing exercise required by section 9 of the Education Act 1996 and to compare these two schools. It found that a placement at the parental preference specialist independent school would be unreasonable public expenditure. There was no appeal against this finding.

Once the parental first choice had been rejected, B’s parents’ second choice was a Free School, which was an independent mainstream school. The local authority did not object. However, the First-tier Tribunal found that it did not have jurisdiction to name the Free School. The Upper Tribunal found that this was an error of law.

Once the local authority had accepted that B could attend the Free School, the parents sought to resurrect the argument that the specialist independent school (their first choice) should be named. They asked the Upper Tribunal to carry out a section 9 balancing exercise, comparing the Free School and the specialist independent school.  The Upper Tribunal rejected this argument. There was no need to take section 9 into account for a second time, given that the local authority now only proposed the Free School because they acknowledged the parental right to their choice of mainstream placement (once their first choice specialist independent school had been rejected by the Tribunal).

The Upper Tribunal gave this extremely helpful summary of how the legislation fits together:

“15. The sequence, it seems to me is as follows. There may be a preliminary step in some cases of considering whether it is inappropriate for the child to be educated in school: that is the gateway to making provision out of school (TM v LB Hounslow [2009] EWCA Civ 859; [2011] ELR 137). Among the reasons for considering the question are firstly that there is little point in the local authority naming a school (at any rate as sole provision) if its view is that it is inappropriate for a child to be educated in school; and further, that s316 only applies “to a child with special educational needs who should be educated in a school”(s316(1)) and thus working out whether s319 bites is logically before one can later assess whether s316 is in play.

16. In a case to which sch 27, para 3 applies and the parental preference is not defeated by either of the express conditions in that provision, then the school of preference must be named by the authority. In a case where a preference under sch 27 para 3 case has been expressed , it is only once a parent has failed under that section that one comes to consider s316: (R (MH) v Special Educational Needs and Disability Tribunal and LB Hounslow [2004] EWCA Civ 770; [2004] ELR 424).

17. In a case to which sch 27 para 3 does not apply, in exercising the discretion which s324(4) confers on an authority with regard to naming a school, as with all its powers and duties under the Education Acts, section 9 must still be applied. The result of such an exercise is a factor to which regard must be had (Hampshire CC v R and SENDIST [2009] EWHC 626 (Admin); [2009] ELR 371) but does not exclude other factors (Watt v Kesteven CC [1955] 1 QB 408 at 424.) Section 9 does not create a qualified right to the school of preference as does sch 27 para 3 but that school requires to be addressed at this point, as part of the duty to comply with s9. …

19. At that point, therefore, when the fallback preference had been triggered, a local authority wishing to persist with placement in a special school would not be able to say that placement in a mainstream school would be incompatible with the wishes of the parent for the purposes of s.316(3) (even though there would not have been such incompatibility earlier, when the parent’s preference had been for a non-mainstream school). The fallback preference could be defeated if the authority could show that a mainstream placement would be incompatible with the provision of efficient education for other children, but that is not suggested to be the case here. Therefore, given the fallback preference had been expressed and the acceptance of its validity, the local authority was bowing to the inevitable in agreeing to mainstream provision.

20. The key questions in this case are, having arrived at this point in the analysis, (a) whether section 9 has any further life and (b) if it does, how it falls to be applied. …

22. I acknowledge that the Court of Appeal in MH said that it was necessary to apply sch 27 para 3 at the outset and that that provision has no further relevance when a s316 exercise is being undertaken. It would however be in my view an over-simplification to treat sch 27 para 3 (when a qualifying preference is expressed for a maintained school) and s9 (when the preference is for a non-maintained school) as direct equivalents and from that to argue that the relevance of s9, like that of sch 27 para 3, is confined to the front end of the logical process. The former is a provision applicable within a defined procedure, which – subject to defined exemptions – cuts across other provisions so as to create rights: cf. MH at [69]). The latter merely sets out a principle to which a local authority is required to have regard, among other considerations. It also is subject to defined exemptions but its field of application is far wider (the exercise of functions under the Education Acts) and it operates outside the ambit of a defined procedure. …

28. Given the principle of the fallback preference, I cannot see that it does any violence to the language of the section to treat “the wishes of [the parent]” as encompassing first the initial preference and, once that has failed and the fallback preference been triggered, the latter preference. Consequently, where the fallback preference has been triggered, the s9 principle would fall to be applied by reference to wishes under the fallback preference, just as before the fallback preference was triggered, it fell to be applied by reference to the original preference. 29. So understood, although s9 is capable of applying at this point of the analysis, it simply has no purchase as both the parent and the authority are agreed on a particular mainstream school once, applying ss316/316A, a mainstream school has been determined to be required.”

Finally, readers may be interested in this Upper Tribunal decision, where the First-tier Tribunal’s decision was set aside because of inadequate reasons a failure to apply the correct legal test when looking at the suitability of the proposed schools: Cambridgeshire County Council v SF (SEN) [2015] UKUT 0231 (AAC).

Rachel Kamm, 11KBW, (@Kamm11KBW)



Academy terminating prior arrangement

April 16th, 2015 by James Goudie QC

In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool.  This is an executive post and regarded as full-time.  The position carries with it an annual allowance of almost £80,000.  He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000.

Prior to his election as Mayor, he was employed by a neighbouring Local Authority, Sefton Metropolitan Borough Council (“Sefton”) at Chesterfield High School. Once elected Leader of Liverpool City Council he had ceased to work at the School.

Sefton agreed that he should continue as an employee. This was on the basis that he would be paid the maximum allowed as paid leave to enable employees to hold public office by Section 10 of the Local Government and Housing Act 1989 (208 hours per annum).  His post was held open.   Sefton also continued to pay pension contributions.

This arrangement continued until the School became an Academy.  His employment then transferred by a TUPE transfer to the Respondent, now independent of Sefton.

The Respondent was concerned that the arrangement was “inequitable”,  principally because the Respondent was paying some £4,500 per annum to the Claimant but the pupils at the school received no benefit.  The Respondent accordingly terminated the agreement.  The Claimant claimed, inter alia that he had been dismissed unfairly.

The ET found that he had remained an employee and had been dismissed for “some other substantial reason”, a potentially fair reason.  However, the dismissal procedure was unfair, and his claim for unfair dismissal was upheld.  He was entitled only to a basic award subject to a Polkey deduction and contributory fault.

Mr Anderson appealed.  The EAT on 14 April 2015 upheld the decision of the ET on the basis that the deductions were justified on the facts found by the ET and that the Respondent had acted reasonably in taking the view that a continuation of an arrangement whereby Mr Anderson was paid (albeit a modest amount) by a publicly funded school, without having to provide any services, for an indefinite period was of no value to the Respondent and might lead to significant criticism.  It was entitled reasonably to regard the arrangement as inequitable and unsustainable and to terminate Mr Anderson’s  employment.

His Honour Judge Serota QC said:-

“13.      No concern appears to have been given as to what the public perception might be of the expenditure of public money to a full-time politician who was not expected or required to provide any services in return.”

“57.      In my opinion the principal reason for the “dismissal” was obvious. The realisation that a continuation of an arrangement whereby the Claimant, an elected official of a neighbouring Local Authority, was paid (albeit a modest amount) by a publicly funded school without having to provide any services for an indefinite period was considered to be of no value to the Respondent and might lead to significant criticism if the arrangement became public.  The Respondent was reasonably entitled to regard the arrangement as inequitable and unsustainable.  It was also the case that the Respondent considered that the arrangement (including the indefinite holding open of the Claimant’s post) led to some instability within the school.

58.       The Employment Tribunal’s conclusions on the Polkey deduction and deduction for contribution were conclusions to which it was entitled to come.  Its conclusion that the Claimant was party to a misuse of public funds was certainly within the range of reasonable responses of a reasonable employer.  Further, the Claimant’s conduct can reasonably be regarded as culpable or blameworthy.  The finding that the Claimant would have been dismissed in any event had a “fair” dismissal procedure been followed is unassailable as a finding of fact that the Employment Tribunal was entitled to make.  I am unable to see how consultation would have made any difference.  …

59.      It seems to me as though the Claimant has simply not given sufficient attention as to how the arrangement he made with Sefton and so continued with the Respondent might look to outsiders.  The Claimant was entitled to receive almost £80,000 per annum from Liverpool for his role as elected Mayor, yet also procured a payment (albeit modest) from public funds for which he provided, and was not expected to provide, any service.  It was, more likely, considered to be a reverse form for a zero hours contract, whereby the Respondent was bound to make payment of salary but the Claimant was not bound to provide any services.  It is certainly fairly arguable that this arrangement may strike members of the public as constituting a misapplication of public monies. …

60.      What most people would consider the Respondent’s desire to extricate itself from this arrangement, which could have been a public relations disaster for the school, would seem to me to be a clear example of SOSR for ending the employment relationship with the Claimant.  I am satisfied that this is the conclusion to which the Employment Tribunal came and to which it was clearly entitled to come.  In the circumstances, the appeal is dismissed.”

School transport judgment arrives

April 9th, 2015 by Jonathan Moffett

Back in December 2014, my colleague Paul Greatorex did a brief post about the decision of the High Court in the school transport case of PP v East Sussex CC, albeit a transcript of the judgment was not available at that time.  A transcript has now appeared on Lawtel, apparently without any prior notification to the parties.  It is not yet available on BAILII but a copy is available here: P v East Sussex CC [2014] EWHC 4634.

The claim was brought by a 15-year-old school girl with a range of medical problems and a statement of special educational needs which named an independent school 27 miles from her home.  The local authority accepted that she was an eligible child entitled to free school transport under section 508B of the Education Act 1996, which duty it discharged by providing a taxi service shared with other pupils.  That service took her to and from school at the beginning and end of the normal school day.  She asked for this arrangement to be varied in two respects: (1) to take her from home to school later than usual when she arrived back there from the frequent medical appointments she required, and (2) to take her from school to home later than usual on certain days to enable her to attend after-school clubs.

The Council refused to do this relying amongst other things on the practical difficulties and extra cost that would be involved in making such arrangements.  That decision was challenged by way of judicial review on the grounds that it amounted to: (1) a breach of section 508B, and (2) a breach of the Council’s duty to make reasonable adjustments under the Equality Act 2010, and (3) a breach of the public sector equality duty in section 149 of the 2010 Act.  All three grounds were rejected.

In relation to section 508B, the judge held that there were three relevant aspects to that duty: (i) the travel to be provided is such travel arrangements as the authority consider necessary, (ii) the authority should consider it necessary in order to secure suitable home to school travel, and (iii) this is for the purpose of facilitating the child’s attendance at her school: see [39]-[41].  The judge said that “school” has a temporal as well as a physical aspect and that the legislation is directed at facilitating attendance for the normal compulsory school day: see [50]-[52].  “After school activities” were just that: activities after school: see [66].

The judge went on to hold at [58] that when determining what travel arrangements they consider necessary, a local authority can take account of cost and practicability and that the duty did not impose a “counsel of absolute perfection”, nor “a requirement that the claimant be provided with a chauffeur” nor was it “a duty which stands to be exercised on a kind of a perpetual stand-by basis, that is to say, to be available at various times to suit medical appointments”, nor could the local authority be put in breach of duty by the actions of a third party in the way that party facilitates its medical appointments: see [59], [62] and [63].  The only purpose of the duty was to facilitate attendance at school and not, for example, to facilitate attendance at medical appointments: see [58] and [62].

In relation to the claim based on section 20 of the Equality Act, the judge said that it was very difficult to see how on the fact of that section such a claim could be sustained: see [71].  He pointed out at [73-74] and [77] that the “service” or “function” in question was transport, not education, there was no complaint about that such as the size of the vehicle or its suitability for the claimant, and no disadvantage.  Rather the complaint was about her distance from school and this was really a complaint about the adequacy of local education provision rather than about provision of transport: see [77].

It had been argued by the local authority that this challenge should also fail on the ground that it should have been brought in the county court under section 114.  The judge did not rely on this point but did observe at [80] that whilst raising Equality Act provisions in a judicial review claim was not barred (see section 113(3)(a)), “that does not lead to a proposition that a claimant is best advised to bring an Equality Act claim by way of judicial review. I suspect in most cases that he is not.”

Finally, the claim under section 149 of the 2010 Act was dismissed on the facts of the case, the judge holding that the decision letter (which had explicitly adverted to this duty and tried to explain how it had been complied with) did not amount to lip service but showed a genuine desire and attempt to engage with the requirements of that section: see [99].

The local authority was represented by Paul Greatorex.
Jonathan Moffett