Rachel Kamm, 11KBW
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  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:
- The decision made by the Defendant to fund a placement other than that contained in the LDA was in breach of statute or unreasonable;
- The provision made by a local authority must match the LDA;
- 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;
- The decision was procedurally unfair;
- 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
- 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
This morning the High Court dismissed the challenge in R (PP) v East Sussex CC to the local authority’s policy of only providing transport to eligible children at the beginning and end of the normal school day.
The claim had been brought under section 508B of the Education Act 1996 and section 29 of the Equality Act 2010. The claimant, who had a statement of special educational needs, contended that the local authority was obliged by one or other of these provisions to provide her with transport to school after medical appointments and transport home from after-school clubs.
A transcript of the judgment is not yet available but a further blog post will appear here when it is.
The School Admissions Code 2014 revises and replaces the existing School Admissions Code 2012. The School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) (Amendment) Regulations 2014, SI 2014/2886, pursuant to s84(1) of SSFA 1998 (“the Regulations”) amend the School Admissions (Admission Arrangements and Co-ordination of Admission Arrangements) (England) Regulations 2012 to give effect to certain provisions of the revised Code.
The majority of changes come into force immediately. The amendments to the admissions timetable will be phased in from September 2015.
The Code introduces specific, limited changes to the 2012 Code. The two main changes allow all state-funded schools to give priority in their admission arrangements to children eligible for pupil premium or service premium funding; and admission authorities of primary schools to give priority in their admission arrangements to children eligible for the early years pupil premium, pupil premium or service premium who attend a nursery which is established and run by the school.
There will be no requirement for admission authorities to include these priorities in their admission arrangements, but they would have the freedom to do so if they wished. Any admission authority wishing to change its arrangements to introduce such a priority would be required to consult parents and others.
There are also minor changes to amend the timetable by which admission arrangements must be consulted upon, determined and published by admission authorities, and for resolving disputes regarding the lawfulness of admission arrangements through objections to the Independent Schools Adjudicator; and to clarify the provisions relating to the admission of summer born children who wish to delay entry into reception.
Guidance is promised (or threatened) on how admission authorities might implement in practice some of the optional changes.
The Education (School Development Plans) (Wales) Regulations 2014, SI 2014/2677 (W.265) apply to Governing Bodies of maintained schools. They impose a duty on the Governing Body to draw up a School Development Plan in order to assist it to exercise its responsibility for conducting a maintained school with a view to promoting high standards of educational achievement. That duty does not affect the general principles and respective roles and responsibilities of governing bodies and head teachers set out in the School Government (Terms of Reference) (Wales) Regulations. The content of the plan is set out in the Schedule.
The School Development Plan has effect for a three year period. The Governing Body must revise it annually and following an inspection by Her Majesty’s Inspectorate for Education and Training in Wales.
Provision is made in relation to publication. In drawing up the School Development Plan the Governing Body must have regard to school performance information. The Governing Body must consult with those persons prescribed.
The Education (Pupil Referral Units) (Management Committees etc) (Wales) Regulations 2014, SI 2014/2709 (W.270) require local authorities to establish Management Committees (“MCs”) to run Pupil Referral Units (“PRUs”) in their area, and make provision for the constitution and procedure of MCs. A MC may run more than one PRU. Local authorities must delegate certain functions, principally the function of conducting the PRU, to the MC. Written Statements of Policy in relation to the Curriculum of the PRU must be made, and periodically reviewed.
In Davies v LB Haringey, a decision of Mr. Justice Supperstone handed down on today (17 October 2014), the claimant was a teacher who had been on full time release for trade union duties for 14 years. At the time she went on release, she was working at a community school, so by section 35 of the Education Act 2002 her employer was the local authority rather than the governing body.
In 2014, the council wished to investigate disciplinary allegations against her and suspended her in relation to breaches of the council’s Code of Conduct and Social Media Policy. She claimed that this was a breach of her employment contract, asserting that, by reason of regulation 19 the School Staffing (England) Regulations 2009, only the governing body had the power to suspend her.
The Council, represented by Peter Oldham QC of 11KBW, argued that the Regulations applied only to those worked in schools, and the reality of the situation was that the claimant had not done so for a long time. Further the Council argued that regulation 19 of Regulations gave a power to the governing body to suspend but did not take away the Council’s power to suspend under the contract of employment.
The judge agreed with both of the Council’s contentions. Whilst the facts were very unusual (on account of the teacher’s absence from the school on trade union duties), nevertheless, the determination that the local authority retains statutory powers of suspension and discipline, at least in exceptional cases, is significant.
11KBW Education Group presents a half day conference on 13th November 2014, focusing on updates in legislation, case law and the day to day issues faced in the Education Sector with topics on: Children and Families Act 2014/special educational needs, academies, transport, exclusions, discrimination and human rights.
Peter Oldham QC will be chairing the conference.
|9.45am||Introduction from Chair||Peter Oldham QC|
|9.50am||Special Educational Needs 1||Rachel Kamm|
|10.15am||Special Educational Needs 2||Joanne Clement|
|12.20pm||Discrimination and Human Rights||Tom Cross|
Tracking down government guidance, or even knowing what guidance exists, is often far more difficult than it should be, so it was very pleasing to discover the Department for Education has put its into the following comprehensive lists:
- Statutory (i.e. compulsory) guidance publications for schools and local authorities
- Advice (i.e. non-statutory) publications for schools and local authorities
- Statutory and non-statutory guidance on running early years settings and Sure Start centres
In the same helpful vein, the Department last week published “Statutory policies for schools” which sets out all of the policies and documents that governing bodies and proprietors of schools are required to have by law. This also makes clear which types of schools have to have which policies, how often each policy must be reviewed and (where prescribed) the level of approval required for each.
I posted last month about the High Court’s decision in R (Tigere) v Secretary of State for Business Innovation and Skills and The Student Loan Company  EWHC 2452, where Mr Justice Hayden found that the policy for eligibility for student loans was unlawful.
The Court of Appeal has overturned that decision. The full text is available on Lawtel.
Lord Justice Laws (with whom LJ Floyd agreed) concluded that the Secretary of State was justified in promulgating a bright line rule. Any bright line rule must reflect that the Secretary of State was obliged to accord a high priority to opening higher education to those who may deploy their talents here and he had a very broad margin of discretion. Lord Justice Laws then drew an interesting distinction between the roles and processes for setting immigration rules for settlement and education rules for student funding. He concluded that the Secretary of State for BIS was entitled to adopt a criterion dependent on settlement and he was not required to modify it by reference to the fact that the Home Office might alter the Rules by which settlement was achieved from time to time. Further, the Secretary of State for BIS was entitled to rely on the legality, the propriety in public law terms, of the Immigration Rules relating to settled status.
Lord Justice Vos expressed his reasons for allowing the appeal slightly differently. Further to what LJ Laws found, he concluded that the Secretary of State for BIS must ensure that the student funding regulations operated properly in the context of immigration policy. Whilst he could not be expected to make frequent adjustments to the regulations as the Immigration Rules changed, he had to review the situation periodically to ensure that, for example, the requirement of “settlement” remained appropriate in the light of the way that the immigration processes operated. He found that the eligibility requirements were lawful (only) because there had at all relevant times been a discretion to grant indefinite leave to remain to children on section 55 grounds (i.e. the duty to have regard to the need to safeguard and promote the welfare of children in the UK).
Therefore, whilst expressing sympathy for her situation, the Court of Appeal found that the Secretary of State was entitled to have a bright line rule that excluded Miss Tigere from the student loans scheme on ground of her immigration status.
Rachel Kamm, 11KBW
So, it’s 1 September and the new regime has started. The Department of Education has chosen today to publish more guidance, to keep everyone busy on the first day. This is non-statutory guidance: Social care: guide to the 0 to 25 SEND code of practice, Advice for social care practitioners and commissioners. It will be of interest to education lawyers and all those implementing the new EHC Plans.
Rachel Kamm, 11KBW