Personal budgets and special educational needs

May 16th, 2012 by Joe Barrett

The Government has published its formal response to the public consultation on its green paper, Support and Aspiration.

The main elements include: 

  • Commencing in 2014, replacing SEN statements and separate learning difficulty assessments (for older children) with a single, birth to 25 years assessment process and education, health and care plan. Parents with such plans would have the right to a personal budget. 
  • All families including a child with an approved education, health and care plan will have a legal right to request a personal budget, if they choose. Parents will be able to purchase the SEN support identified in the plan. Parents will be given a choice of whether to take control of the personal budget by agencies managing the funds on their behalf or, where appropriate, by receiving direct payments, if they are suitable, to purchase and manage the provision themselves. 
  • Providing statutory protections comparable to those currently associated with a statement of SEN to up to 25-years-old in further education – instead of such support ceasing at the age of 16. 
  • Measures to require ‘joined-up’ working between local authorities and health authorities. 
  • A new legal right for children to seek a place at state academies and Free Schools.

The Government’s intention is that the reforms will be enacted in the Children and Families Bill announced in last week’s Queen’s Speech.

Channeling the spirit of the former Home Secretary the Rt. Hon Dr John Reid, Children’s Minister Sarah Teather declared that the current SEN system is ‘not fit for purpose’ and that the proposed reforms will ‘put parents in charge’.

A number of charities and unions have expressed concern that the reforms are primarily intended to tighten the SEN criteria so as to reduce the number of children entitled to SEN support and open the provision of SEN services to commercial competition. It seems tolerably clear that the proposals do pursue these twin objectives.


Footnote to R ota CVMS v Archbishop of Westminster

May 15th, 2012 by Peter Oldham QC

The Court of Appeal decided in R ota Cardinal Vaughan Memorial School v Archbishop of Westminster [2012] PTSR 291 that reg 18(1)(e) of the School Governance (Constitution) (England) Regulations 2007 allowed the foundation body of a voluntary aided school to appoint, amongst the complement of foundation governors, parents of former pupils as part of the “pupil parent” group of foundation governors. That decision has now been reversed by reg 2 of the School Governance (England) (Amendment) Regulations 2012. Parents of ex-pupils can now be appointed as foundation governors as part of the “pupil parent” group only when in the opinion of the foundation body it is not reasonably practicable to appoint parents of current pupils who could properly undertake the role.


The Education (Pupil Referral Units) (Application of Enactments) (England) (Amendment) Regulations 2012 /1201

May 10th, 2012 by Jane Oldham

The Education (Pupil Referral Units) (Application of Enactments) (England) (Amendment) Regulations 2012 /1201 were laid before Parliament on 8 May 2012.

Regulation 3 remedies (with effect from 1 September 2012) a gap in section 10 of the Children Act 2004, by  extending, so as to include PRUs, the list of relevant bodies with which local authorities  are required to co-operate in order to improve children’s wellbeing.

Regulations 2 and 4, which come into force on 31 May 2012, applies the Academies Act 2012, with modifications, to PRUs, enabling PRUs to convert to become Alternative Provision Academies.

An overview of how PRUs converting to Academy status will be funded, can be found here.

It remains to be seen how PRUs attaining  the autonomy of academy status, will interact in practice with the  local authority and schools which PRUs are established to support.


New DfE guide on school exclusions

May 3rd, 2012 by James Cornwell

The DfE has published Exclusion from maintained schools, Academies and pupil referral units in England: A guide for those with legal responsibilities in relation to exclusion (“the Guide”). From September 2012 this will replace the existing statutory guidance, Improving behaviour and attendance: guidance on exclusions for schools and Pupil Referral Units (September 2008) (“the Guidance”).

Consistent with DfE’s aspiration to reduce the size of statutory guidance aimed at schools, the Guide weighs in at a slender 34 pages compared to the 80 pages of its predecessor. This reduction is principally achieved by removing the various model letters contained in the previous Guidance and expressing the guidance in a more succinct and focussed manner. We shall, perhaps, see whether in the coming years the page count starts to creep back up again. The substantive sections of the Guide are each split into two sections: “a guide to the law”, which explains the primary legislation (principally the new section 51A of the Education Act 2002) and regulations made under it, and a statutory guidance section. The Guide is addressed to head teachers, governing bodies, local authorities, Academy Trusts, independent review panel members and clerks and “SEN experts”. They must have regard to the statutory guidance parts of the Guide, i.e. should follow it unless there is a good reason not to in a particular case.

Although the statutory underpinning of the exclusion regime is now section 51A of the 2002 Act and the Guide obviously reflects that, much of the statutory guidance will look broadly familiar to those used to the 2008 Guidance. A few examples are:

  • permanent exclusion should only be used as a last resort, in response to serious 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 (para.15);


  • headteachers should, as far as possible, avoid excluding permanently any pupil with a statement of SEN or a looked after child (para.22);


  • the governing body in considering an exclusion should have regard to the interests and circumstances of the excluded pupil and the interests of other pupils and people working at the school (para.60).


Two of the most significant differences between the Guide and its predecessor concern Independent Review Panels (“IRPs”) and “SEN experts”. IRPs replace Independent Appeal Panels. The remedies that an IRP can impose are limited to recommending reconsideration of a permanent exclusion by the governing body or quashing the exclusion and directing a reconsideration. These appear to involve the IRP in two quite distinct exercises. The IRP may only quash and direct reconsideration if it considers the decision flawed by reference to “the principles applicable in an application for judicial review” (para.132), which are explained to be illegality, irrationality and procedural impropriety (see paras.148-149). Presumably these could also (in the appropriate case) include less traditional, but now recognised grounds for judicial review, such as breach of legitimate expectation. In determining that the exclusion decision should be quashed the IRP may only consider the evidence that was actually before the governing body or which would or should have been available had the governing body acted reasonably (para.135). If the IRP does not consider that the decision should be quashed, it may nonetheless in the light of any lesser procedural defects or the evidence recommend the governing body reconsider the case (para.135). The IRP can receive and consider new evidence and indeed it is expected that those involved in the incident leading to exclusion will give evidence (see paras.108 and 134). The IRP can take account of such evidence when deciding whether to recommend reconsideration. IRPs will have to be on their toes as to which evidence falls into which category and which test they applying at what stage of their reasoning.

If the IRP quashes the exclusion and directs a reconsideration, that is binding on the governing body. But, of course, the governing body is not obliged following reconsideration to reinstate the pupil. The IRP does, however , have something of a stick in the form of a power to order that in the event of the pupil not being reinstated the school pay the local authority a sum of £4,000 in addition to any funds that move with the excluded pupil (see para.163).

There is an interesting question as to whether the new powers of the IRP would amount to an adequate alternative remedy such as to persuade the Administrative Court to decline to grant permission if a parent or pupil sought to challenge the outcome of any governing body reconsideration. If, for example, the IRP quashes an exclusion because the governing body has simply acted outside its powers (eg. because on any view the pupil was not excluded on disciplinary grounds) and the governing body reconsiders and simply makes the same unlawful decision again, there would seem to be a strong likelihood that the Administrative Court would be willing to intervene. Similarly, if the IRP hears compelling new evidence that wholly undermines the exclusion and recommends a reconsideration and if the governing body then declines to reconsider, there may be an issue as to whether the governing body has unlawfully failed to take account of a relevant consideration.

The SEN expert’s role is described at paras.155-158 of the Guide. It is said to be “analogous to an expert witness, providing impartial advice to the [IRP] on how special educational needs might be relevant to the exclusion”. The SEN expert should focus on whether the school’s policies which relate to SEN, or the application of these policies in relation to the excluded pupil, were legal, reasonable and procedurally fair and, if not, the possible contribution that this could have made to the circumstances of the pupil’s exclusion. The SEN expert may also (where the school does not accept that the pupil has SENs) express a view on the school’s approach to the identification of any special educational needs that the pupil may potentially have, and any contribution that this could have made to the circumstances of the pupil’s exclusion. A SEN expert must be appointed if the parents request one (even if the school does not recognise that the pupil has SENs) (see paras.117-121). Paragraphs.122-125 give guidance on appointing a SEN expert.


School Standards and Organisation (Wales) Bill

May 1st, 2012 by Peter Oldham QC

This Bill was introduced into the Welsh Assembly on 23rd April.

Its aims are stated on the Welsh Government website ( as being to:-

•provide a clearer process for school intervention and drive up school improvement through the introduction of statutory guidance.
•reform the statutory process for school organisation so that decisions are taken locally wherever possible.
•remove the requirement for School Governing Bodies to hold Annual Parents’ Meetings and introduce a new right for parents to call meetings with School Governing Bodies.
•give Local authorities and schools greater flexibility over the pricing of school meals.
•mainstream several grant-funded programmes to help streamline current processes.
•make local authorities accountable for planning Welsh-medium provision by making Welsh in Education Strategic Plans statutory.

Peter Oldham QC


Garner v General Teaching Council for Scotland

May 1st, 2012 by Peter Oldham QC

Section 12 of the Teaching Council (Scotland) Act 1965 gives the right of appeal to the Court of Session against decisions of the General Teaching Council for Scotland. In Garner v General Teaching Council for Scotland [2012] CSIH 39 (13th April 2012), the appellant was a maths teacher accused of incompetence. The appellant, appearing in person, alleged that the Discplinary Committee had made 113 errors of law.

The Court said that were two questions for the Committee: whether the appellant had “been guilty of serious professional incompetence” and, if so, and if the Committee (as it did) was considering whether to remove her name from the register, whether the nature of the incompetence is such as to warrant that step.

The Court of Session found that the Committee’s decision entirely failed to indicate that it had dealt with important statistical evidence related to pupils’ results. There was a conflict of evidence on the point, so that Lord Osborne said “we are at a loss to understand how proper conclusions on those matters could have been reached”. The Court also held that there was a more wide-ranging failure by the Committee to advert to other, voluminous evidence.

In essence this was a reasons challenge. But note that the Court (as it expressly pointed out) was exercising a truly appellate, rather than supervisory, jurisdiction, making it easier for the appeal to succeed. But the failings were such that, even in a supervisory role, a Court would probably have allowed the appeal.

Peter Oldham QC


Garner v General Teaching Council for Scotland

May 1st, 2012 by Peter Oldham QC