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Parental choice of mainstream education

May 6th, 2013 by Rachel Kamm

In Harrow Council v AM [2013] UKUT 0157 (AAC), the Upper Tribunal considered a local authority’s obligations where a parent chose mainstream education for a child with complex special educational needs. The decision also discusses two important procedural issues, namely when a First-tier Tribunal can rely on its own knowledge without seeking views from the parties and its powers on review.

The child in question, “F”,  ”was born in 2001. He suffers from a very rare form of muscular dystrophy. He has severe myopia with no sight in one eye. Although 11 years old at the time of the tribunal hearing, his curriculum attainments have been described as mainly equivalent to a developmental level of between 6 and 12 months. He has no expressive language. He has hypotonia and severely impaired gross and fine motor skills” (§2).

The Council had named a maintained special school in Part 4 of his Special Educational Needs Statement. His mother wanted F to be educated in a mainstream school and she initially proposed Whitmore High School. The First-tier Tribunal concluded that:

We accept that the legislation supports [the mother’s] preference for a mainstream school but we do not accept that it requires us to endorse a plan which we consider to be profoundly unsuitable for a very vulnerable child. Although the LEA has provided little evidence as to how inclusion is facilitated in its other mainstream schools, (and in Harrow it seems probable that Whitmore is the most likely to be suitable) we are aware, from our own knowledge and experience, that there are mainstream schools where [F] would not receive his education in isolation, and where he could experience inclusion in a more meaningful way than would be possible at Whitmore. Consequently, since no other ‘candidate’ schools have been put before us we propose to name a type of school.” It went on to name “A maintained mainstream secondary school where [F] will be educated with other pupils who have severe and complex disabilities, which has appropriate facilities, expertise and access to extensive therapy involvement and provision.” (quoted at §§4-5 of the Upper Tribunal’s decision).

On subsequently reviewing its decision, the First-tier Tribunal explained that:

the tribunal was able to envisage a situation where a child, in a wheelchair, placed in a mainstream classroom, supported by a teaching assistant, following a wholly differentiated curriculum and encouraged not to vocalise inappropriately would not compromise the efficient education of the other pupils. We could not accept, however, that such a setting would be in any way appropriate for [F]. What followed was the detailed conclusion (para 23) that, whilst ‘reasonable steps’ were possible, the plan being put forward for [F] was so unique as to be extremely isolating and therefore harmful to a very vulnerable child. Hence the decision in relation to Part 4. [...]We agree and regret that our conclusions were not more explicit, and that para 15 is misleading. [...] The resourced base we envisaged would comprise a group of children, supported by a specialist teacher [...]. Our amendments to Part 3 reflected this view [...].  In particular, we considered that the specification of one to one specialist teaching to which the LEA objects, would be unnecessary and excessive and so we did not order it.” (quoted at §§9-10 of the Upper Tribunal’s decision).

The Upper Tribunal took into account these further reasons given by the First-tier Tribunal, on review, when it considered the local authority’s appeal (§19).

The decision includes a useful summary of the law in relation to section 316 of the Education Act 1996 and a parent’s right to request mainstream education for their child (§§21-28). Note in particular that:

  • if a statement is maintained under section 324 of the 1996 Act for a child, the child must be educated in a mainstream school unless that is incompatible with (a) the wishes of his parent or (b) the provision of efficient education for other children;
  • this applies regardless of the best interests of the child or the efficient use of resources;
  • if a local authority decides to make a statement, but not to name the particular maintained mainstream school for which a parent has expressed a preference, it must comply with section 316(3) i.e. provide for mainstream education, unless that would be incompatible with the provision of efficient education for other children;
  • if mainstream education would be compatible with the provision of efficient education for other children but there is no suitable school  (whether inside or outside its area) where the child can be found a place, the local authority is under an absolute obligation to make a school suitable;
  • however, if a local authority claims that mainstream education would be incompatible with the provision of efficient education for other children, it must show that there are no reasonable steps that it could take in mainstream schools in its area to prevent that incompatibility (having regard to the statutory guidance on this issue). The local authority is not required to show that there are no reasonable steps that could be taken in relation to mainstream schools out of its area;
  • a tribunal can name a specific type of mainstream school or other institution or indeed, as is normally the case, a specific mainstream school.

In this case, the Upper Tribunal concluded that the First-tier Tribunal had erred in law in its approach to the question of which mainstream schools could be considered:

At least in the absence of the clear availability of a suitable place at a mainstream school outside the area of the council, the tribunal, in considering the effect on other children, could only consider mainstream schools within the council’s area. It would have to consider the effect not only on the children already at those schools but also on the other children with severe and complex disabilities, who would, if legally possible, have to be brought in from other schools to enable F to be educated with them. If their inclusion with F at, for them, a new mainstream school would be incompatible with the provision of efficient education for them, then that would be a basis on which the council could establish exception (b) to the rule in section 316.” (§§29-30)

As the Upper Tribunal put it, “The tribunal attempted to resolve this difficulty by relying on its own knowledge thatthere are mainstream schools where [F] would not receive his education in isolation, and where he could experience inclusion in a more meaningful way than would be possible at Whitmore.” [...] “it erred in law in this respect in that it should not, at least on the evidence before it, and possibly at all, have had regard to schools outside the council’s area.  It is also unclear whether any of those unnamed schools could make a place available for F at that time and it would not appear from its decision at least that any of them was within reasonable travelling distance of F’s home” (§31).

Further, the First-tier Tribunal erred in law in not giving the parties the opportunity to comment on its view that other mainstream schools could educate F in an inclusive manner (§§32-38). The Upper Tribunal reviewed the case law on this issue and confirmed that parties should have an opportunity to comment if their submissions might affect the outcome.

The Upper Tribunal noted the need for a First-tier Tribunal to form a view on the steps that would need to be taken to remove any incompatibility with the provision of efficient education for other children. It commented that it might take a school a significant period to put these reasonable adjustments into effect. It concluded that it was open to a First-tier Tribunal to name, as an interim measure, a school that was not mainstream until the local authority had had a reasonable opportunity of making the adjustments (§40).

The outcome of this case was that the First-tier Tribunal’s decision was set aside and the matter remitted to a new First-tier Tribunal.

Finally, the Upper Tribunal confirmed that a First-tier Tribunal which is reviewing its own decision has no power to set aside part of a decision or to amend a statement. Its only options are to correct accidental errors in the decision or in a record of the decision; amend reasons given for the decision; or set the decision aside, and then either re-decide the matter or refer it to the Upper Tribunal. The Upper Tribunal commented that, generally, it would not be a proper exercise of the First-tier Tribunal’s discretion for it to refer a matter to the Upper Tribunal which required practical educational expertise. (See §§12-18.)

Tom Cross of 11KBW represented F’s mother.

Rachel Kamm, 11KBW

Inter-authority recoupment

March 13th, 2013 by Rachel Kamm

Following on from Paul‘s post about hot education topics in February, the Inter-authority Recoupment (England) Regulations 2013 have now been made and will come into force on 1 April 2013.

These regulations are about whether one local authority should contribute towards the costs of a SEN statement for which another local authority has responsibility. It is worth noting that they do not affect which local authority is responsible for the statement, which continues to depend on which area the child is in (see section 323 of the Education Act 1996 and the Guidance on Looked After Children with Special Educational Needs placed out-of-authority). Where a local authority is responsible for a statement, that responsibility can only transfer to another local authority if the child has moved from the area of the original local authority to the area of the new local authority (see paragraph 7 of Schedule 27 to the 1996 Act and regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001).

Recoupment is a separate issue. Until the new regulations come into force, the current position is that the Education (Inter-authority Recoupment) Regulations 1994 provide for a local authority which is responsible for a SEN statement to recoup the costs of that statement from another local authority to which the child belongs. The Education (Areas to which Pupils and Students Belong) Regulations 1996 set out the test for deciding to which local authority a child belongs.

That scheme will change from 1 April 2013 in England. The new regulations will amend the Education (Inter-authority Recoupment) Regulations 1994 so that those Regulations only apply to recoupment where the home authority is in Wales (with one exception). As the covering letter for the consultation on the draft regulations explained:

In future schools that provide for pupils with a statement of SEN and certain other high cost needs will get base funding from their maintaining local authority, or if they are not a maintained school from the Education Funding Agency (EFA), while funding above the base funding level (“top-up funding”) will pass directly between the local authority where the pupil is resident and the school.  We have made adjustments between the baselines of authorities in England in order to make this new system cost neutral for authorities. …

The proposed regulations will continue to require recoupment between English local authorities in the case of looked after children …

We are also proposing that the recoupment arrangements should remain in place for authorities in England in so far as they relate to pupils from England educated in Wales, and pupils from Wales educated in England. …”

Hopefully the changes will simplify the current system, which relies on local authorities agreeing between themselves on the sum to be recouped and with disputes resolved by the Secretary of State. However, no doubt there will be other  issues arising from the new funding regime to keep the lawyers busy.

Rachel Kamm

Welsh Consultation on SEN

July 5th, 2012 by Holly Stout

The Welsh Government has launched a consultation on reform to the SEN system – Click Here 

The proposed legislative reforms are similar to those proposed for England following the consultation last year Support and aspiration: A new approach to special educational needs and disability (click here  for the latest on that).

The Welsh Government also proposes new legislation that will 

  • give a statutory footing to the concept of additional needs (AN);
  • replace SEN statements with new integrated Individual Development Plans (IDP) for children and young people;
  • replace the framework for the assessment and planning of provision for children and young people with SEN with a simpler more person-centred system;
  • set out how integrated plans will cover those aged 0–25 years who fall within different categories of need;
  • set out the duties to be imposed on relevant bodies (such as local authorities and the NHS);
  • set out the resolution process for any disputes;
  • impose a duty on the Welsh Ministers to issue a code of practice in relation to the new statutory framework for AN; and
  • impose a duty on relevant bodies to collaborate in respect of AN provision.

 Responses to the consultation are invited by 19 October 2012.

Pilot scheme for SEN direct payments

February 10th, 2012 by Rachel Kamm

I posted back in March 2011 about the Green Paper “Support and aspiration: A new approach to special educational needs and disability” and the plan to test proposals in local areas from September 2011. The Green Paper included a proposal that all families with children with a statement of SEN or a new ‘Education, Health and Care Plan’ would have the option of a personal budget by 2014.

Section 532A of the Education Act 1996 came into force on 15 November 2011. It allows local authorities to make a payment to a person with a SEN statement or learning difficulty assessment for the purpose of securing (a) special educational provision specified in a SEN statement, (b) provision identified in a learning difficulty assessment (under section 139A of the Learning and Skills Act 2000) as required to meet education and training needs, and/or (c) transport or anything else that may be subject to arrangements in section 508B(1) (school children), section 508F(1) (adult learners) or section 509AA(7)(b) (sixth formers). Local authorities are only permitted to make such a payment in accordance with a pilot scheme made under section 532B.

Section 532B enables the Secretary of State to make pilot schemes by order. There are now regulations made under this section: the Special Educational Needs (Direct Payments) (Pilot Scheme) Order 2011 (SI 2012/206). The regulations came into force on 30 January 2012 and the pilot scheme is for a period of two years. The pilot applies to the 36 local authorities listed in Schedule 2. The pilot scheme is fairly complicated, so the following is just a summary:

  • The local authority must provide information and advice about direct payments to parents / beneficiaries who are 16+ whenever it serves a copy of a SEN statement or prepares a learning difficulty assessment;
  • Direct payments can be made to parents of beneficiaries who are under 16 or to beneficiaries who are 16+. In either case, it must appear to the local authority that the recipient is capable of managing direct payments without assistance (or with any available assistance), is 16+, has capacity to consent to receiving direct payment and is not excluded by Part 4 of the regulations.
  • Alternatively, direct payments can be made to a person nominated by the parent (if the beneficiary is not 16) or the beneficiary (if 16+) provided that the parent/beneficiary has capacity to consent to receiving payments and the nominee agrees to act on behalf of the parent/beneficiary, to use the direct payments to secure the agreed provision and to act in the best interests of the beneficiary. Anyone who is excluded by Part 4 cannot be a nominee.
  • Alternatively, direct payments can be made to a representative if the parent (of a beneficiary under 16) or the beneficiary (if 16+) does not have capacity to consent to receive direct payments and the representative agrees to act on behalf of the parent/beneficiary, to use the direct payments to secure the agreed provision and to act in the best interests of the beneficiary. Anyone who is excluded by Part 4 cannot be a representative.
  • There are transitional provisions where a beneficiary reaches the age of 16.
  • Before making a direct payment, the local authority must agree with the recipient which goods/services are to be secured by means of direct payments and the recipient must consent. In the case of a nominee, the parent or beneficiary (as applicable) must also consent. The written consent must include the name of the beneficiary, the agreed provision, the amount of the direct payment, whether there is a lump sum and if so the date, and whether there are instalments and if so the intervals.
  • Before deciding to make a direct payment, the local authority must be satisfied that the way in which the recipient proposes to use the payment to secure the provision is appropriate, that the parent/nominee/representative will act in the best interests of the beneficiary, that the direct payment will not have an adverse impact on other local authority services for other people with a SEN statement or learning difficulty assessment, and that the direct payment is compatible with the efficient use of its resources.
  • Where a direct payment will be used for goods/services in a school or college, the head teacher / principal or equivalent must consent.
  • Where a local authority decides not to make direct payments, it must inform the proposed recipient and parent and any beneficiary who is 16+ of the decision and its reasons. They have a right to request a review.
  • The amount of a direct payment must be sufficient to secure the full cost of the agreed provision. It can be increased or reduced at any time provided that the local authority is satisfied that the new amount is sufficient. The local authority can also reduce the amount if direct payments have not been used and it is reasonable to offset the accumulated sums against future provision.  It must give reasonable notice of any change, with reasons for any reduction.
  • The local authority must monitor the use of direct payments. A review of specified matters must take place at least once in the first three months, at the end of the first year and thereafter at appropriate intervals. It must also undertake a review whenever any changes are made to the goods/services.  If notified of a change in circumstances, it must consider whether the amount is sufficient. If the local authority reduces the amount following a review, the recipient can request a reconsideration.
  • There are specified circumstances in which the local authority must stop making payments. There are also specified circumstances in which the local authority can require repayment of sums that have not been spent on agreed provision.
  • There is a duty to provide information, advice and support to recipients and beneficiaries.
  • The recipient must use the direct payments only to secure the agreed provision, must notify of any change in relevant circumstances, must ensure a bank account approved by the local authority is only used for purposes connected with direct payments and only accessible by the recipient and approved named persons, must keep a record of money paid in and out, and must on request provide information or evidence about that account or the goods/services secured. The local authority has the power to prohibit the recipient from securing services from a particular person or provider.

This is a significant change to how SEN provision is provided. Whilst it is only a pilot scheme, it applies to a fairly large number of local authorities and those pilot authorities are required to follow the scheme for all people with SEN statements or learning difficulty assessments. This means that there is no discretion for the pilot local authorities to test out the proposals with a small sample of potential beneficiaries for example. It will be interesting to see how many potential beneficiaries choose to take up the option of direct payments and, for those who do, how they choose to secure the goods/services in their statements. It will also be interesting to see how many schools or colleges veto the beneficiary’s first choice for how goods/services will be used in their institutions and whether local authorities use their power to veto a particular provider.

On a separate note, following up from my post on 11 January, as expected the School Admissions Code and School Admission Appeals Code (Appointed Day) Order 2012 (SI 2012/216) provides that the School Admissions Code and the School Admission Appeals Code came into force on 1 February 2012.

Rachel Kamm

Consultation on draft SENT(W) Rules

July 13th, 2011 by Peter Oldham QC

On 6th July, the Welsh Government published draft regulations for the SENT for Wales, with a consultation document, the English language version of which states:-

What are the main issues?

1. These draft Regulations consolidate and overhaul the existing four sets of regulations that apply to SEN appeals and claims of disability discrimination.

2. They set out the procedure to be followed by a person when making a SEN appeal or a claim of disability discrimination in education to the Tribunal. They also set out the procedure governing the proceedings for determining a SEN appeal or a claim of disability discrimination and the procedure relating to compliance with orders of the Tribunal.

3. The Secretary of State for Justice’s consent is required to make provision in the draft Regulations relating to the constitution of the Tribunal, members of the Tribunal panel and compliance with Tribunal Orders. Welsh Ministers are seeking consent.

4. The draft Regulations will give effect to the Education (Wales) Measure 2009 by enabling children in specified pilot areas to make an SEN appeal or claim of disability discrimination to the Tribunal themselves

5. In addition, the opportunity has been taken to improve the structure of the legislation and recast it in more “plain English” terms to improve its user-friendliness.

Peter Oldham QC

Unreasonable public expenditure

March 21st, 2011 by Rachel Kamm

The Upper Tribunal has reviewed the authorities about the meaning of public expenditure in section 9 of the Education Act 1996. In K v London Borough of Hillingdon (SEN) [2011] UKUT 71 (AAC), HHJ David Pearl confirmed that a local authority (and the Tribunal on appeal) is obliged to take account of the wider social and health benefits when it is considering whether the education of a child at an independent school (in accordance with parental wishes) would be incompatible with the avoidance of unreasonable public expenditure.  The judgment is available here: http://www.osscsc.gov.uk/Aspx/view.aspx?id=3201.

Support and aspiration: A new approach to special educational needs and disability

March 9th, 2011 by Rachel Kamm

The Government has published a Green Paper, which promises that its ”new approach to special educational needs and disability makes wide-ranging proposals to respond to the frustrations of children and young people, their families and the professionals who work with them“.

The document is 134 pages long and I haven’t yet got beyond the Executive Summary. Look out for more blogs on the topic over the coming days and weeks, but for the moment here is a summary of what seem to be the main proposals:

Identification and assessment of SEN

  • The Government believes that there is over-identification of SEN because of “perverse incentives” created by the measures of school performance. It proposes to tackle this by “replacing the current SEN identification levels of School Action and School Action Plus with a new single school-based SEN category for children whose needs exceed what is normally available in schools“, introducing new statutory guidance on SEN identification and introducing an indicator in performance tables giving clear information on the progress of the lowest attaining pupils;
  • There will be a new approach to identifying SEN in early years settings and schools, with “a new single early years setting- and school based- cateory of SEN“;
  • A new “single assessment process and ‘Education, Health and Care Plan’” will replace statutory SEN assessment and statements by 2014, whilst providing the same statutory protection to parents. It will include a “commitment from all parties to provide the services“. Local assessment and plan pathfinders will test the best way to achieve this; and
  • The Government is testing how the voluntary and community sector could co-ordinate assessments with input from across education, health and social care. The aim is to increase the independence of the assessment process. It also wants to reduce the time the current statutory assessment process takes.

Personal budgets

  • All families with children with a statement of SEN or a new ‘Education, Health and Care Plan’ will have the option of a personal budget by 2014.

Choice of school

  • Parents wil be given ”a real choice of school, either a mainstream or special school” by the removal of “the bias towards inclusion” and improved range and diversity of available schools;
  • Parents will have their preference for any state-funded school (including special schools, Academies and Free Schools) met unless it would not meet the needs of the child, would be incompatible with the efficient education of other children or would be an inefficient use of resources;
  • Parents and community groups will have the power to take over special schools which would otherwise be unnecessarily closed; and
  • All maintained special schools will be given the opportunity to become Academies in due course; and
  • Parents or local community members will be able to establish new special Free Schools.

Information and advice

  • Local authorities will “set out a local offer of all services available to support children who are disabled or who have SEN and their families“;
  • With the introduction of the option of personal budgets by 2014, “Key workers will be trained to advise families and help them navigate the range of help available across health, education and social care“; and
  • As part of the new proposed “birth to 25 single assessment process” and the new ’Education, Health and Care Plan’, under 25s who are disabled and/or with SEN will have early and well-integrated support for, and advice on, their future (spanning education, health, social care and support into employment) by 2015.

Post-16

  • For those over 16, by 2015 there will be access to better quality vocational and work-related learning options, “good opportunities and support in order to get and keep a job” and “a well-co-ordinated transition from children’s to adult health services“; and 
  • The Government will explore the feasibility of annual health checks from GPs.

Disputes

  • The Government proposes to give parents more control, which it says means that ”if local authorities and parents disagree, they [will] always try mediation first, to resolve problems in a less adversarial way than having to to take their case to the Tribunal“.

The Green Paper is available here: http://www.education.gov.uk/publications/eOrderingDownload/Green-Paper-SEN.pdf. The consultation period runs until 30 June and there will then be a period of testing proposals in local areas from September 2011.

Keeping the Supreme Court busy … and ones to watch out for

July 28th, 2010 by Peter Oldham QC

At the end of this year, the Supreme Court will hear yet another education case:  G v Governors of X School (CA decision at [2010] ELR 235), which concerns the procedural rights of teachers being disciplined by a governing body where the outcome may affect their ability to carry on teaching.   Never before has our highest Court had such a proportion of its workload coming from the world of education: see blogs below on A v Essex, and  Re JR 17, not to mention the two JFS matters ([2010] UKSC 1 and 15).

One step below, the Court of Appeal is to hear an appeal from the decision of Cranston J in O v East Riding of Yorkshire CC [2010] E.L.R. 318, which is an important case dealing with the interface of special needs provision and social services provision.  The judge held that the local authority had correctly ceased to regard a child as being “looked after” under the Children Act 1989 when he was placed in full-time residential education under his SSEN.  This was because, on the facts, the school provided all his welfare needs, and he no longer needed respite care or accommodation, so that the authority was not providing his accommodation in the exercise of its social services function.

Peter Oldham QC

The role of the Upper Tribunal in education law, and its judgments

July 25th, 2010 by Peter Oldham QC
The Upper Tribunal Administrative Appeals Chamber (UTAAC) deals with appeals from the first-tier Tribunal (Health, Education and Social Care) Chamber, which itself deals with care standards, mental health, primary health lists and, as relevant to this blog, special educational needs and disability.  

 So UTAAC deals with what used to be appeals from SENDIST to the High Court on a point of law.

The Administrative Court is now also transferring some education judicial reviews out of the Administrative Court list to UTAAC.

 A few miscellaneous points are worth bearing in mind.

(1) Some search engines do not include judgments by UTAAC – and this is now where some education law will be made.  Here is Tribunal service webpage from which you can go to a search engine for UTAAC decisions: http://www.administrativeappeals.tribunals.gov.uk/Decisions/decisions.htm

(2) Upper Tribunal judgments can contain recommendations as to how the first-tier Tribunal carries out its functions, whether or not an error of law has been identified.

(3) Appeals to the High Court from what was SENDIST normally involved SENDIST itself as a respondent.  Usually SENDIST took no part, but sometimes it participated, either on points of law or procedure, when it felt a important issue has been raised.   The practice in UTAAC (so far) does not, or does not generally, allow for the first-tier Tribunal to take part in such appeals. 

This has important implications for evidence supporting appeals. If an appellant says that there was a procedural unfairness, the first-tier Tribunal will not take part to defend the claim. Nor is it likely to provide evidence on the issue.  If the appellant says that there was no evidence to support findings on an issue, again the first-tier Tribunal will not take part to explain that there was such evidence. My experience is that it is unlikely to provide notes of evidence to the parties to allow them to make, or refute, such an allegation, though it may be that there is no uniform practice.