A number of newspapers today reported the decision of a magistrates’ court on the Isle of Wight to throw out the prosecution of a parent for taking his child on holiday during term time. The only details available are those reported in the press, but it appears that the court accepted the father’s argument that the holiday did not mean his daughter had failed to attend school regularly. Decisions of magistrates’ courts are not binding and of course other similar prosecutions have been upheld. It will only be if the matter comes before the Divisional Court (on an appeal by way of case stated) or the Administrative Court (on a claim for judicial review) that the point will be decided authoritatively.
Those of you who were interested in my recent post on universities’ obligations in relation to student harassment and the government task force that has been set up to look into issues relating to harassment on campus may also wish to read this Guardian article by Karen McVeigh. Karen McVeigh has interviewed Graham Zellick, whose 1994 guidance to universities was that they should not normally undertake investigations into serious sexual assault, but should leave investigation to the police. Zellick argues that the guidance remains relevant notwithstanding the passage of time since 1994 and the coming into force of the Human Rights Act 1998. It remains to be seen whether the task force will review the Zellick guidance and what they will make of it.
The First Tier Tribunal frequently has to compare the costs of educating a child with special educational needs (SEN) in the independent sector (the parents’ preferred choice) with the costs of attending a school in the maintained sector (the local authority’s preference). Over the past year, according to Upper Tribunal Judge Mitchell, the outcome of SEN appeals in England where parents sought independent schooling had ‘started to resemble a lottery’, with different tribunals reaching contradictory outcomes on similar facts. Judge Mitchell has sought to bring order to the system in his judgment in the consolidated appeals in four cases: Hammersmith & Fulham LBC v. L  UKUT 0523 (AAC).
The appeals to the Upper Tribunal concerned the comparative cost analysis of an independent school and a special school, and required consideration of section 9 of the Education Act 1996 (“the 1996 Act”): “In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
The particular issues in the appeals involved the approach to be taken where there was a comparison between the costs of an independent school placement and the local authority’s special school, where the special school has a vacancy; and when comparing the costs of an independent school with SEN-reserved places in a specialist unit. In both scenarios, the Upper Tribunal held that the place funding for the special school and SEN-reserved places was to be ignored, as that funding would be incurred by the local authority in any event. Only the top-up funding for the particular child (including any extra transport costs to the local authority’s preferred placement) should be taken into account on the local authority’s side, and then compared with the cost that would be incurred in attending the parents’ preferred independent school.
The Upper Tribunal judge arrived at this conclusion based on his understanding of the detailed legislative scheme for funding maintained schools: the School Standards and Framework Act 1998, and the relevant regulations. For the financial year in question (2014/15) those were the School and Early Years Finance (England) Regulations 2013 (SI 2013/3104). He explained that for maintained mainstream schools with reserved places for children with SEN, funding of £10,000 must be included per place: regulation 14(2). The Upper Tribunal judge explained that ‘This amount must be included in the school’s budget share whether or not the place is filled.’ Similarly with special schools: regulation 14(1). Local authorities are required to include the sum of £10,000 for each place.
The Upper Tribunal judge then analysed the extensive case law dealing with section 9, and drew an analogy with the Court of Appeal’s decision in R. (on the application of GB) v Oxfordshire CC  EWCA Civ 1358, which held that only the additional or marginal cost of the placement at the local authority’s provision should be taken into account. The Upper Tribunal judge concluded that ‘place funding . . . is not an additional cost of a maintained school, for section 9 purposes, if the school has unfilled places.’
Where, however, the choice was between an independent school and a maintained mainstream school without reserved places for SEN, the Upper Tribunal judge said that the AWPU (age weighted pupil unit) normally represents an additional cost for the purposes of section 9 and should be taken into account, along with any additional funding required to meet the child’s needs.
As the Upper Tribunal judge noted, however, this analysis may be less significant in the future, as changes made by the Children & Families Act 2014 will mean that the test to be applied for school naming disputes will be that of Schedule 27 to the 1996 Act where parents wish their child to attend a non-maintained special school and certain independent special schools. That test is not concerned with “unreasonable public expenditure”, but with whether the child’s attendance at the parents’ preferred school would be incompatible with “the efficient use of resources”.
CLIVE SHELDON QC
Amendments have been made to the Commons Briefing Paper on the Education and Adoption Bill to cover the Bill’s Second Reading and Commons Committee stages. Read the full Paper here.
The updates to the Commons Briefing Paper indicate that none of the Opposition’s proposed amendments were accepted at the Second Reading or Commons Committee stages. Of particular note:
- Proposed amendments to the provisions dealing with warning notices to schools would have provided a minimum 15-day working period for a school to respond and a requirement that action specified in a warning notice should be ‘reasonable’. The Minister rejected the amendment saying that flexibility was required in setting deadlines for schools and that the Minister was under a ‘common law’ obligation to ensure that action specified was reasonable;
- In response to proposed amendments concerning the definition of ‘coasting schools’ (see the illustrative regulations published by the government and Rachel Kamm’s post of 18 July 2015 here), the government confirmed that it would consult about approaches to addressing ‘coasting’ in alternative provision schools (e.g., PRUs) “in due course”.
- The Minister also confirmed that Government did not intend to apply the same definition of coasting to special schools, but that it did intend to consult on how to identify ‘coasting’ in such schools.
- The Minister added that even where a maintained school met the ‘coasting’ definition and the Secretary of State had been notified (as required by the Bill), the Regional Schools Commissioner would make an assessment of whether the school had the capacity to improve. Schools may receive support from national leaders of education or a neighbouring high-performing school. They could also be directed to ‘enter into arrangements’ – e.g., enter into a contract to receive advice, or collaborate with other schools, or could be given academy orders.
A consultation is open on the next academic year’s school finance regulations (see the DfE website for details).
The proposed regulations largely provide for the same arrangements as last year, but makes six proposed changes to the:
- Ability of local authorities to carry forward any unspent falling rolls fund or new schools fund;
- Ability of local authorities to use place-based funding for 2 year olds;
- Definition of amalgamated schools;
- Budgets of closed and amalgamated schools;
- Expenditure a local authority can incur from their non-schools education budget; and
- Authorised expenditure in respect of Children and Young People with High Needs.
The deadline for responses is 13 November 2015.
Many of you will have heard about the government’s recent decision to set up a taskforce to tackle violence against women on campus. (See the government press release here.) This move is timeous or long overdue (depending on your viewpoint) in the light of the accumulating momentum of campaigns by various individuals and organisations to highlight the high incidence of sexual violence/harassment on campus.
The ‘turning of the tide’ (so to speak) came with the publication of the results of the NUS Survey ‘Hidden Marks’ in 2010 which found that a shocking 1 in 7 female students was a victim of sexual assault or violence. Since then increasing publicity has been given to the issue, in particular by the End Violence Against Women campaign who in February of this year published a government briefing and detailed legal advice from Louise Whitfield and Holly Dustin as to university’s legal obligations under the Human Rights Act 1998 (“HRA”) and the public sector equality duty (“PSED”) in s 149 of the Equality Act 2010 (“EA 2010”). Significant press interest in the issue was perhaps brought to a head in the summer by a Guardian investigation.
On 6 September the government responded with its decision to set up a taskforce, whose brief is to:
- develop a code of practice for institutions to support cultural change
- explore how a kitemark scheme could be developed and awarded to successful institutions
- explore how better to engage with Crime Prevention Officers
- ensure best use of the existing complaints mechanisms such as the Equality and Human Rights Commission (EHRC) and, for students, the Office of the Independent Adjudicator
- encourage institutions to ensure that the right links are in place with existing local activity, including through the Home Office Violence Against Women and Girls Strategy
This is welcome news, both for those affected by sexual violence on campus, and for universities. Until now, the only specific guidance to universities on dealing with cases of sexual violence had been the 1994 report by Graham Zellick to the Committee of Vice-Chancellors and Principals (not available on the web). This report, which followed what was widely perceived as mishandling of a rape allegation by a university (the details of which are shrouded in the mists of internet time), recommended that universities should normally leave the investigation of sexual violence to the police, other than in exceptional circumstances.
A judicial review earlier this year in which I represented Oxford University (see here for details and contemporaneous press reports) raised the question of the compatibility of Zellick’s recommendations with modern discrimination law, in particular with the obligations that universities may owe under the EA 2010 to protect students from harassment by ‘third parties’ (such as other students) and to deal appropriately with complaints of harassment so as not themselves to create, or contribute to the creation, of an environment that is ‘intimidating, hostile, degrading, humiliating or offensive’ (compare, in the employment sphere, Norouzi v Sheffield City Council  IRLR 897).
It will be interesting to see whether the taskforce tackles the Zellick Report ‘head on’. Whether or not it does, however, it seems likely that the taskforce’s Report will supercede Zellick and provide welcome guidance to Universities on handling these difficult issues.
In the meantime, this year’s hapless freshers happily have more immediate support in the form of Lady Gaga’s latest release.
The SEN reforms which came into force on 1 September 2014 are well-known. However, this regime does not apply to anyone who is detained in the criminal justice system. Instead, parallel but separate provision is made for “detained persons”, i.e. those aged 18 or under (but not those aged 19-25) who are subject to a detention order and detained in relevant youth accommodation.
That regime, which came into force on 1 April 2015, is set out in sections 70-75 of the Children and Families Act 2014, the Special Educational Needs and Disability (Detained Persons) Regulations 2015 and the revised version of the Code of Practice.
The importance of these new provisions is clear. The Explanatory Memorandum to the 2015 Regulations refers to 2010 research which showed that 18% of detained persons had a statement of special educational needs (compared to approximately 3% of under-19s overall) and over 60% had speech, language and communication needs.
The Explanatory Memorandum also acknowledged that these needs have frequently gone unmet due to the lack of awareness and lack of clearly defined responsibilities, and the stated aim is to provide a new approach to remedy this.
However, the way the relevant provisions are spread over the Act, the regulations and the Code of Practice does not always make it easy to understand them. To try and help with this I have drafted a note which attempts to summarise this new regime. It can be viewed or downloaded here.
I hope the note is of use and interest and would welcome any comments or feedback.
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  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.“
This is a quick post to alert readers to the following regulations, which are all due to come into force on 1 September 2015:
- The Education (Destination Information) (Prescribed Activities) (England) Regulations 2015;
- The Education (Student Information) (England) Regulations 2015;
- The Education (School Performance Information) (England) (Amendment) Regulations 2015;
- The School Governance (Federations) (England) (Amendment) Regulations 2015; and
- The Government of Maintained Schools (Change of Category) (Wales) Regulations 2015.
Rachel Kamm, 11KBW
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  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