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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

Local offers

February 6th, 2015 by James Goudie QC

Section 30 in Part 3 of the Children and Families Act 2014 defines and prescribes the content of a “Local Offer”.  A local authority in England must publish information about the education and training, social care and health provision, for children and young people who have special educational needs or a disability, that it expects to be available in its area (or in some circumstances outside), whether or not it will be making that provision itself.  Schedule 2 to the Special Educational Needs and Disability Regulations 2014, SI 2014/1530, specify what information must be included in the Local Offer.  Mostyn J has considered these provisions in R (L & P) v Warwickshire County Council (2015) EWHC 203 (Admin).  He observed, at para 48, that Schedule 2 provides for a “very extensive range of information” to be published in the Local Offer, and referred to the “vast number” of people and bodies each local authority must consult before publishing its Local Offer and to the “huge range of information that must be referenced”.

Having referred to the statutory guidance, Mostyn J stated:

“51.       Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

At para 54, he said:

“…it must be very clearly understood what the purpose of the consultation is. It is about what appears in the Local Offer, which is a compendium of information. I remind myself of the words of section 30. The local authority has a duty to publish information about certain provision it expects to be available.”

At para 57, Mostyn J reiterated that the statutory consultation is about what the Local Offer should say about services to be provided, not about what services should be provided.  He dismissed the challenge to the fairness of the consultation.  He emphasized (para 59) that the Local Offer by its nature will always be subject to continuous updating; and, at para 77, approved the following submissions on behalf of the County Council:

(i) The development and publication of the Local Offer is, as the legislative framework envisages and the implementation guidance makes clear, intended to be an iterative process, subject to consultation and to be done in accordance with the new spirit of “co-production”. To update the website with further information on the Local Offer and to continue to do so as the Offer is refined and further developed is entirely lawful.

(ii) It is obviously not arguably unlawful for information to be published on the Council’s website by way of a link through to a partner’s website, for example with respect to the information on healthcare provision and SEN provision in schools.

James Goudie QC

New exclusions guidance – withdrawn

February 2nd, 2015 by Rachel Kamm

Further to my recent post about the new exclusions guidance, it has been withdrawn today. The DfE website no longer has a link to the new guidance, although the link to the 2012 guidance remains. The website explains that “The School Reform Minister Nick Gibb has removed the current guidance to address some issues with process and we will be issuing updated guidance in due course.” The Local Government Lawyer notes that the withdrawal of the guidance follows the threat of judicial review proceedings.

Rachel Kamm, 11KBW

Discrimination – tendency to physical abuse

January 25th, 2015 by Rachel Kamm

A three-judge Upper Tribunal panel X v GB of a school has considered the exclusion of a tendency to physical abuse from the definition of disability under the Equality Act 2010.

The child, S, was given six fixed term exclusions of up to four days because of incidents when S was violent to other children. She brought a disability discrimination claim in the First-tier Tribunal, including a claim that the fixed term exclusions constituted discrimination arising from her disability. Her claim was unsuccessful. The Tribunal found that she was a disabled (by reason of autism) and that she had a tendency to physically abuse others that was a result of her autism. Regulation 4 of the Equality Act 2010 (Disability) Regulations 2010 provides that a tendency to physical abuse of other persons is to be treated as not amounting to an impairment for the purpose of the Equality Act 2010. The Tribunal concluded that it followed that she had not been treated less favourably because of something arising in consequence of her disability.

S appealed to the Upper Tribunal. The UT found that regulation 4(1) applied to children as well as to adults. It went on to agree with the approach of Lloyd Jones J in Governing Body of X Endowed Primary  School v SENDIST  [2009] EWHC 1842 (Admin) (and of the EAT in Edmund Nuttall Ltd v Butterfield [2006] ICR 77) that “having regard to the words of the statute, its scheme and its legislative purpose, the effect of the provisions read together is that the protection of the legislation is not intended to extend to the excluded conditions, whether or not they are manifestations of an underlying protected impairment.” It follows that a school will not breach section 15 of the Equality Act 2010 if they treat a child less favourably because of the child’s tendency to physical abuse of others, even if that tendency arises as a result of a disability (such as, in this case, an autistic spectrum disorder).

Note that the guidance at [114-121] on what a “tendency to physical abuse” means suggests a higher threshold than merely physical violence. This is worth reading in full, but the UT found that there must always be an element of violent conduct (but that this alone is not sufficient), there is no requirement for knowledge on the part of the perpetrator that what they are doing is wrong, the existence of some sort of misuse of power or coercion makes it more likely that the test is met, the stage of a child’s development is relevant, and it is not necessary for the tendency to physical abuse to manifest itself regularly or frequently. The UT’s concluding summary was that “a tribunal must approach its consideration of whether a person has “a tendency to physical … abuse of other persons” by reaching conclusions on the evidence, and then explaining why the undisputed facts and those it has  found lead to its conclusion, having taken into account all the circumstances of the case including, where relevant, the matters set out above. In so ruling we are conscious that what may be a challenging task for a First-tier Tribunal of determining whether regulation 4(1)(c) is met may be yet harder for those in a busy school. However, that, in our judgment, flows from the legislative choice of a more complex concept such as “physical abuse” rather than, for instance, “violence” or “assault.”

Applying its conclusions on the law to the facts of S’s case, the UT found that the First-tier Tribunal had erred in law in failing to make sufficiently specific findings of fact about any tendency to physical abuse. The UT concluded that S’s behaviour manifested a condition of a tendency to physical abuse of other persons. Therefore S’s appeal did not succeed.

Clive Sheldon QC and James Cornwell of 11KBW represented the Governing Body.

Rachel Kamm 

New exclusions guidance

January 18th, 2015 by Rachel Kamm

The Government has published new statutory guidance: Exclusion from maintained schools, academies and pupil referral units in England. It applies to exclusions that occur after 5 January 2015, replacing the previous 2012 guidance.

One reason for the amended guidance is that there has been a change to the regulations governing exclusions. The Education (Provision of Full-Time Education for Excluded Pupils) (England) (Amendment) Regulations 2014 were laid before Parliament on 5 December 2014 and came into force on 5 January 2015. The explanatory note explains that  these regulations amend the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007 so  that consecutive periods of exclusion are considered as one continuous period for the purposes of making arrangements for the provision of suitable full-time education for a pupil of compulsory school age who is excluded for a fixed period on disciplinary grounds.

The statutory guidance summarises the other main points as follows:

  • Statutory guidance has been updated in a small number of areas, in particular to provide greater confidence to headteachers on their use of exclusion and greater clarity to independent review panels and governing bodies on their consideration of exclusion decisions.
  • Good discipline in schools is essential to ensure that all pupils can benefit from the opportunities provided by education. The government supports the decisions of headteachers and they should be confident in using exclusion where they consider it to be a lawful, reasonable and fair action.
  • In considering whether to exclude a pupil, headteachers should weigh up the seriousness, or persistence, of the pupil’s behaviour, together with the impact of not excluding the pupil on the school as a whole and the integrity of its behaviour policy. Whilst every effort should be made to identify pupils at risk of exclusion, and to put in place strategies to address problematic behaviour, adopting a blanket approach of never excluding pupils may undermine the school’s ability to maintain discipline.
  • Where a school has concerns about a pupil’s behaviour it should try to identify whether there are any causal factors and intervene early in order to reduce the need for a subsequent exclusion. In this situation schools should consider requesting a multi-agency assessment that goes beyond the pupil’s educational needs. They should also consider whether alternative provision would help improve the pupil’s behaviour.
  • Schools must not discriminate against pupils on the basis of protected characteristics, such as gender, sexual orientation, disability or race. All pupils must be treated fairly and lawfully.
  • All children have a right to an education. Schools should take reasonable steps to set and mark work for pupils during the first five school days of an exclusion, and alternative provision must be arranged from the sixth day. There are benefits in arranging alternative provision to begin as soon as possible after an exclusion. Schools should have a strategy for reintegrating pupils that return to school following a fixed period exclusion, and for managing their future behaviour.
  • Where parents (or the excluded pupil, if aged 18 or over) dispute the decision not to reinstate a permanently excluded pupil, they can ask for it to be reviewed by an independent review panel. Where there is an allegation of discrimination (under the Equality Act 2010) in relation to a fixed-period or permanent exclusion, parents can also make a claim to the First-tier Tribunal (for disability discrimination) or  a County Court (for other forms of discrimination).
  • Excluded pupils should be enabled and encouraged to participate at all stages of the exclusion process, taking into account their age and understanding.

One of the changes in the new statutory guidance is to the test for an exclusion. First,the reference in the 2012 guidance to exclusion being a last resort has vanished. Secondly, the key paragraph in the guidance for Headteachers on the minimum conditions for exclusion has been amended. The 2012 guidance included the following:

A decision to exclude a pupil permanently should only be taken:

  • in response to a serious breach, or persistent breaches, of the school’s behaviour policy; and
  • where allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school.

The equivalent paragraph in the new 2015 guidance s as follows:

It is for the headteacher to decide whether a child’s behaviour warrants permanent exclusion, though this is a serious decision and should be reserved for:

  • a serious breach, or persistent breaches, of the school’s behaviour policy; or
  • where a pupil’s behaviour means allowing the pupil to remain in school would be detrimental to the education or welfare of the pupil or others in the school.

There are two changes here. In 2012, the two conditions both had to be satisfied, whereas in the 2015 guidance it is sufficient for just one condition to be met (subject to compliance with the other paragraphs in the guidance). Further, the second condition is now the lower threshold of detriment, instead of serious harm, to the education/welfare of the pupil of others in the school.

The Guardian  and the Telegraph report that Just for Kids Law is preparing to issue judicial review proceedings to challenge the failure to consult on the new statutory guidance and that the new guidance has a lower threshold for exclusion.

Rachel Kamm, 11KBW Chambers

School Admissions Code – in force

December 20th, 2014 by Rachel Kamm

James Goudie QC posted about the new admissions code recently. It came into force yesterday (19 December 2014) and is available here.

Rachel Kamm, 11KBW

Learning difficulties assessments – High Ct judgment

December 16th, 2014 by Rachel Kamm

The introduction of EHC plans for some 16-25 year olds was one of the most important changes to SEN in the Children and Families Act 2014. Under the previous regime, a special educational needs statement could not provide for a young person to attend further education or higher education. Even if the child remained in a school setting post-16, the statement would lapse (if the local authority had not already ceased to maintain it) when the young person turned 19, although the local authority could choose to maintain it until the end of that academic year. Young people with learning difficulties and/or disabilities who were moving into further education, training or higher education received instead a learning difficulties assessment. This assessment would result in a written report of their educational and training needs and the provision required to meet them (“the LDA”). Any challenge to an LDA was by way of judicial review (as, in contrast to the position for challenges to the contents of SEN statements, there was no statutory right of appeal to the tribunal). That is all changing, with the introduction of EHC plans, which can continue until the young person reaches the age of 25, which can include further education provision (but still not higher education) and which can be appealed to the tribunal. Whilst EHC plans were introduced on 1 September 2014, there is a fairly lengthy transition period and so LDAs will be with us for a little longer yet.

Neil Cameron QC has considered LDAs in R (Smieja by her father & litigation friend Smieja) v Bexley LBC [2014] EWHC 4113 (Admin) (judgment available on Lawtel). The young person was 19 and therefore her placement at a residential school was coming to an end. She was assessed and the LDA recommended a placement at the Fortune Centre of Riding Therapy. However, a subsequent placement approval panel meeting decided not to make this placement because of concerns that she would not be able to transfer skills learned at an out-of-borough residential placement. Instead, the panel made the decision that an individualised programme would be funded which would include 3 (or 4) days on an accredited course at White Rocks Farm with the additional days offered at Adult Education College and/or Twofold (if the young person and her family wanted a 5 day provision); this would be supported by provision of up to 55 hours of Personal Assistance Support; Social Care would source Supported Living Accommodation where the young person could be assisted via The Reablement Team to gain independent living skills; and consideration for Travel Training would also be given.

The issue in these judicial review proceedings was whether the young person could enforce the provision in the LDA and get a placement at the Fortune School of Riding Therapy. It is of course possible to enforce the provision in a SEN statement, because section 324(5) of the Education Act 1996  imposes an obligation on the local authority to arrange the special educational provision specified in the statement (unless the child’s parent has made suitable arrangements). However, there is no equivalent duty on local authorities to arrange the provision set out in an LDA.  Paragraph 17.2 of the statutory guidance states: “Once the student’s education and training needs have been
clearly identified the placement decisions should be taken in the light of the overall budget available.”

The claimant’s judicial review grounds were that:

  1. The decision made by the Defendant to fund a placement other than that contained in the LDA was in breach of statute or unreasonable;
  2. The provision made by a local authority must match the LDA;
  3. If the Defendant was to make provision other than in accordance with the assessment contained in the LDA, the LDA should have been reviewed before such a decision was made;
  4. The decision was procedurally unfair;
  5. The Defendant failed to take into account the fact that the placement/s it agreed to fund was more expensive than the placement which the Claimant had asked it to fund; and
  6. In formulating the programme, the Defendant acted in breach of the provisions of Article 8 and Article 14 of the European Convention on Human Rights (“ECHR”).

The High Court rejected all of these grounds of appeal.

On the first issue, it was common ground that there was no statutory duty (equivalent to section 324(5) of the Education Act 1996) and the statutory guidance did not require the local authority to make the placement recommended in the LDA. Whilst section 15ZA of the 1996 Act states that local authorities must secure that enough suitable education and training is provided to meet the reasonable needs of  persons in their area who are aged 19 or over but under 25 and are subject to learning difficulty assessment, this does not require them to make the particular provision in the LDA. Further, the local authority’s placement decision was not Wednesbury unreasonable on the evidence and the local authority had taken into account the relevant matters (including comparative cost). On the facts, the parents had been consulted and there was no procedural unfairness.  There was no breach of human rights where a local authority was meeting the young person’s training and education needs (albeit not by making the placement that the family had requested).

There is nothing particularly surprising in this decision, but it does highlight that a young person with an LDA has significantly weaker legal rights than if they had a SEN statement. That will change as more young people get EHC plans, with enforceable education and health provision and also rights of appeal to the tribunal.

Rachel Kamm, 11KBW