The Court of Appeal has confirmed that a person who reaches the age of 19 is no longer a child for the purposes of Part IV of the Education Act 1996 and so statements lapse automatically when a child reaches the age of 19: Essex CC v Williams  EWCA Civ 1315.
Readers who have been following the various decisions on this topic will recall that the definition of a child for this purpose “includes any person who has not attained the age of 19 and is a registered pupil at a school” (section 312, Education Act 1996). There are two limbs to this definition.
The Court of Appeal considered the scope of the definition in R (Hill) v Bedfordshire CC  EWCA Civ 66 and held that it is not exhaustive. It considered the second limb and found that a person could still be a child if they ceased to be registered at a school but there was every reason for a continuing belief that they may need, and be given, special educational provision later.
The Upper Tribunal and High Court then each considered the first limb of the definition, namely that a child includes any person who has not attained the age of 19. In AW v Essex CC  UKUT 74 (AAC), the First Tier Tribunal had struck out an appeal because the ‘child’ in question was 19; the Upper Tribunal overturned this decision, finding that there was scope for argument about whether they remained a child when they attained 19. In contrast, in R (B) v Islington LBC  EWHC 2539 (Admin) Mr Justice Cranston decided that a statement lapses when a child reaches the age of 19; the first limb of the definition is not so flexible that it could include a person who has attained the age of 19.
The Upper Tribunal’s decision in AW was appealed to the Court of Appeal: Essex CC v Williams  EWCA Civ 1315. Mrs Justice Baron (with whom LJ Moses and LJ Maurice Kay agreed) found that:
- Part IV of the Education Act 1996 contains a very specific (albeit not exhaustive) definition of “child”. To seek to override that by the application of other sections within the Act would fly in the face of what Parliament specified and clearly intended. Education courses can be ill-defined in length, but Parliament placed a specific upper age limit.
- There is specific provision for what is to happen when a child ceases to be under 19 years and moves from secondary education to Further Education. The Guidance provides a discretionary upper limit which extends the possible provision to the end of the academic year but this does not affect the construction of the statute.
- It follows that the local authority was not bound to maintain the Statement of SEN because it ceased to be responsible for the ‘child’ when she reached the age of 19. The local authority was not required to make a formal decision which was reviewable.
Eagle-eyed readers will doubtless have spotted that the Education Bill is now the Education Act. It received Royal Assent yesterday, 15th November 2011. Practitioners will no doubt warmly welcome a further 83 sections and 18 schedules of education legislation.
How much of it is already in force, and when the rest will come into force, is determined by section 82, to which readers should direct their attention. One provision which came into force yesterday is section 58, the late amendment designed to tidy up the confusion over local authorities’ continuing PFI payments in respect of Academies (see Clive Sheldon’s earlier post on the subject here).
The DfE has a webpage on the Act and supporting documents (including, for those who are interested in these things, the Equality Impact Assessment) here, and you can read and download a pdf copy of the Act from the legislation.gov.uk website here.
The Court of Appeal has recently given judgment in R (Maxwell) v Officer of the Independent Adjudicator for Higher Education  EWCA Civ 1236. The Office of the Independent Adjudicator (OIA), for those who struggle to keep up with the ever-expanding list of ombudsmen and regulators, was established by the Higher Education Act 2004 and is a body (a company limited by guarantee in fact) which reviews complaints made by students against higher education institutions. Although it has been found to be amenable to judicial review (see the Court of Appeal’s decision in Siborurema), the extent of the ordinary courts’ intrusion into its decision-making processes is limited.
Put shortly, Ms Maxwell wanted the OIA to have made a finding that she had been discriminated against her on grounds of disability by Salford University. Whilst the complaint she had originally brought had been upheld by the OIA, and recommendations had been made to the University, Ms Maxwell was not satisfied that it had gone far enough. She claimed that the OIA had both the power, and, in the circumstances of her case, a duty, to make a finding of unlawful disability discrimination. It could not rationally ‘take it into account’ without making a finding.
The Court of Appeal disagreed. Lord Justice Mummery, in a typically clear and concise judgment, held that it was the role of courts and tribunals to make findings on issues of disability discrimination; it was the role of the OIA to review complaints made and see if the decision reached by a university was reasonable and justified. He stated:
“…the courts are not entitled to impose on the informal complaints review procedure of the OIA a requirement that it should have to adjudicate on issues, such as whether or not there has been disability discrimination. Adjudication of that issue usually involves making decisions on contested questions of fact and law, which require the more stringent and structured procedures of civil litigation for their proper determination… It is contrary to the whole spirit of a scheme established for the free and informal handling of students’ complaints that the outcomes under it should replicate judicial determinations, which continue to be available in civil proceedings in the ordinary courts, for which the OIA is not and was never intended to be a substitute.”
One of the more difficult legal problems surrounding the creation of an academy relates to the transfer of land. Schedule 1 to the Academies Act 2010 gives the Secretary of State a wide power to “make a scheme in relation to land” where certain conditions are met – being in short that the local authority owned the land, used it for a maintained school but is about to cease doing so. But what information does a local authority need to provide to the Secretary of State so as to ensure that all the loose ends (of which there are often many in real property law) are sewn up when the scheme is made?
That is the purpose of The Academies (Land Transfer Schemes) Regulations 2011 which are currently being consulted upon by the DfE in draft. They will require local authorities to provide the Secretary of State with information and documents – such as title documents, the register entry and plan (if the land is registered), the title deeds (if the land is unregistered) and so forth – when the Secretary of State asks for them.
The consultation will run until 18th January 2012, and local authorities (who are the only consultees) have until then to respond. You can read the brief consultation documents and the draft regulations on the DfE website.
The Local Government Ombudsman has published a focus report on school admissions.
The Ombudsman received 1,195 complaints about admissions in 2010/11; of these 28% led to some kind of remedy for the parents – most commonly, a fresh appeal. The report identifies the following common faults on the part of the local authority and/or independent appeal panel:
- the admission authority failing to provide adequate written information in good time before the appeal hearing about why the child was not offered a place and why the school is unable to admit additional pupils;
- the admission authority presenting parents with arguments and information orally at the hearing rather than allowing them to consider the information in advance;
- the admission authority failing to provide evidence that the school cannot accommodate additional pupils;
- a panel failing to challenge the admission authority’s case that admitting more pupils would be detrimental;
- a panel accepting an argument that the school is full – even when the school later acknowledges that it could admit a few more pupils;
- the presenting officer entering the meeting with the panel and remaining with them after the hearing, leaving parents unsure about the panel’s impartiality;
- panels going back to admission authorities for clarification of information after the parents have left, or even calling back the presenting officer;
- panels asking questions of the admission authority but not of the parents;
- panels hearing cases affecting different members of the same family as one appeal with one hearing;
- panels not satisfying themselves that the admission arrangements were applied correctly to the child in question. These concerns apply to all admission arrangements, but distance (from home to school) and faith criteria can give rise to particular concerns;
- panels taking account of irrelevant information;
- poor recording by the clerk of the panel’s deliberations, decisions, reasons for decisions, and results of panellists’ voting;
- decision letters failing to give reasons for decisions, so parents cannot understand why their appeal did not succeed; and
- decision letters failing to refer to and deal with a major point relied on by the parents.
There was another flurry of activity from the Department for Education last week.
On 2 November, the Department published the new admissions code and admissions appeals code in draft. It is intended that these will come into force in February 2012 and apply to the allocation of places for children starting school in September 2013. The key change is a new national offer day for primary school places, which will be on or around 16 April. The new code will also give adopted children who were previously looked after (and children who leave care under a special guardianship or residence order) the same, highest priority for places as they had as looked-after children. Note that some of the proposed changes to the code are subject to the Education Bill (see Tim Kerr QC’s recent post) receiving Royal Assent.
Funding for school places and new schools
In a separate announcement on 3 November, the Secretary of State made a written statement to the House of Commons on the shortage of pupil places and on the development of new schools.
Mr Gove announced in July that an additional £500 million would be made available this year to local authorities experiencing the greatest need in managing shortfalls in providing pupil places. This money has now been allocated to over one hundred local authorities, with allocations calculated using figures in the 2011 School Capacity and Forecast Information returns. Future capital allocations for basic need and maintenance pressures will be announced later in the year.
Mr Gove also announced that he had launched a 12 week consultation on the revision of school premises regulations, which proposes making the requirements for independent and maintained schools identical and reducing the overall number of regulations.
“I announced what I was minded to do in July and have received further representations from each of the claimant authorities. I considered these carefully but I am not persuaded that I should depart from the decision which I announced I was minded to take. My final decision is, therefore, not to fund the schools in the claim but, instead, to fund, in capital grant, the value of the claimant authorities proven contractual liabilities.”
SEN Green Paper pathfinders
Further to my post back in March on the Support and Aspiration Green Paper, the Government is now funding programmes which are intended to help the 20 SEN Green Paper pathfinder areas to test some of the Government’s key reforms. The Department is funding around £6 million a year for two years to voluntary and community organisations to support the delivery of short breaks, provide greater information and help to parents, and help disabled young people and those with SEN prepare for employment, training and independent living after they leave school.
The Education Bill is edging closer to becoming law. It was amended at Report stage in the Lords and the provisional date for the third reading is 14 November 2011. Based on proposals in the DfE’s White Paper, The Importance of Teaching, with the higher education funding proposals coming from the Department for Business, Innovation and Skills (the one that seems to change its name most frequently). This is the second major legislative of the coalition following last year’s Academies Act 2010. Next year we are promised major reforms to the special needs regime following the Green Paper, Support and Aspiration: a New Approach to Special Educational Needs and Disability – a Consultation (covered in my recent paper at http://www.11kbw.com/articles/docs/EducationgreenpaperTK.pdf).
Some readers may need reminding of the Bill’s main themes:
- targeted free early years care for children under compulsory school age
- changes to school discipline and restrictions on public reporting of allegations against teachers
- abolition of five quangos: the General Teaching Council for England, the Training and Development Agency for Schools, the School Support Staff Negotiating Body, the Qualifications and Curriculum Development Agency and the Young Person’s Learning Agency; the Secretary of State taking over some of their functions
- removal of some duties of governing bodies, local authorities and further education institutions, including the demise of “school improvement partners”
- changes to the arrangements for setting up new schools and academies; amendment of the Academies Act 2010 (already) to make provision for 16 to 19 academies and “alternative provision” academies
- a miscellany of measures on admissions, school meals, composition of governing bodies, school inspections, school finance and permitted charges.
Those thirsting for more detail may quench it at http://www.education.gov.uk/aboutdfe/departmentalinformation/educationbill/a0073748/education-bill and http://services.parliament.uk/bills/2010-11/education.html .