February 4th, 2013 by James Cornwell

A short recent decision of the Upper Tribunal (JS v Worcestershire County Council [2012] UKUT 451 (AAC)) has emphasised the importance, when assessing a child’s special educational needs (“SENs”), of considering the context in which he or she is performing.

R had difficulties in the areas of behaviour and emotional and social development. His parents argued that he needed a Statement of SEN because he had ADHD, dyslexia and expressive language and semantic difficulties. R was subject to a statutory assessment by the local authority (following an order in a previous First-tier Tribunal (“FTT”) appeal), but the local authority decided that R did not need a Statement and that his SENs could be met from provision generally available in a mainstream school. At a further FTT hearing the parents’ appeal against the refusal to issue a Statement was dismissed.

R attended an independent school. The evidence before the FTT from the school’s head teacher was that R had all the classic symptoms of ADHD and that his disruption was managed in very small classes (of typically 12 pupils), with 1:1 mentoring throughout the week and constantly high levels of supervision around the school. There was also a report before the FTT from a medical practitioner specialising in community paediatrics indicating that R had significant problems in the area of behaviour/social understanding as well as a diagnosis of ADHD and needed consistent teaching in small classes with a high ratio of staff to pupils.

Judge Mark allowed the parents’ further appeal against the FTT’s decision and remitted the appeal to a differently constituted tribunal. There were several bases for that decision.

First, the FTT had failed to grapple with the key question of what the extent of R’s needs would be in a mainstream school in circumstances where his needs and conduct had been assessed in a context where he was actually receiving high levels of support in a very small class (see at [18]). The FTT failed to address whether the more serious difficulties that R had previously exhibited in a mainstream school would re-occur in the conditions at the mainstream school to which R would go (D School) (see at [22]). The Judge accepted that on the basis of R’s current conduct he could see why no statement was thought to be required, however “a real issue before [the FTT] was whether the sort of attention he was getting at the current school was the reason that his current problems were so limited and whether the transfer to a mainstream school without the small classes and possibly without the same 1:1 mentoring and degree of supervision would give rise to greater problems” (see at [24]). The FTT had failed to address that crucial issue.

Secondly, the FTT had failed to explain why it had rejected the evidence of the community paediatrician that small classes with a high staff ratio were required (see at [23]).

Thirdly, the FTT had accepted some submissions from the local authority’s representative without evidence to back them up. These related to: (1) the level of support that would be available at D School and the fact that the school considered it could meet need; and (2) if R struggled at a mainstream school, it would not be necessary to wait 26 weeks for the statementing process to be completed (see at [19] and [21]). The Judge observed that it was “trite law” that submissions are not evidence and that “the tribunal should elicit how far the facts alleged are within [the representative’s] personal knowledge or based on some other evidence that can be produced”. In the absence of any other evidence, little weight should be attached to such matters (see at [20]).

The two key points to take away from this decision are:

(1) Where a child is not in a normal mainstream environment, a local authority (and the FTT standing in its shoes) needs expressly to consider how (if at all) the child performance would differ were he to be in a mainstream environment (with the provision typically available there).

(2) The situation (which often arises in FTT hearings) where information (often addressing a point that has arisen at, or very shortly before, the hearing) is conveyed to the tribunal by a party’s representative acting on instruction is potentially perilous. If no evidential basis can be pointed to for what is said the tribunal may have to attach little weight to it. The party advancing a point in this way will need to consider asking the tribunal to issue directions to deal with the submission of further supporting evidence, particularly if the point is (potentially) significant. Such a request will potentially cause delay and complicate proceedings and may well be refused if the point could and should have been anticipated in advance.



November 12th, 2012 by James Cornwell

Following consideration of the case on the papers, Mr Justice Cranston has ordered that the judicial review challenge to the grading of GCSE English exams in June 2012 be listed for a 2-day expedited hearing (see BBC News report here).  The hearing is to be on a “rolled-up” basis, i.e. if permission to seek judicial review were to be granted, a substantive hearing of the application would follow immediately. The hearing is expected to take place before Christmas.

The case arises out of the decisions by examination boards, the AQA and Edexcel, to set a grade C grade boundary for English exams in the June 2012 sitting that was higher than the boundary they set in the January 2012 sitting. 167 pupils, 150 schools, 42 local authorities and six professional bodies for teachers are participating in the mass challenge against the AQA and Edexcel examination boards for their decisions in relation to the grade boundary and against the exams regulator, Ofqual, for approving the decisions or failing to reverse them. The grounds of challenge include alleged breach of legitimate expectations and breaches of the principles of fairness and rationality.

Six 11KBW barristers are instructed for the various parties in the dispute: Clive Sheldon QC and Joseph Barrett for the claimants, Clive Lewis QC and Jane Oldham for the AQA, and Nigel Giffin QC and Christopher Knight for Edexcel.


Residential Placement: The Upper Tribunal strikes again

November 12th, 2012 by James Cornwell

Special educational needs (“SEN”) cases involving residential placements are often particularly contentious: the pupil will often have (or be alleged to have) particularly significant SENs, but the local authority will be potentially facing a very large bill for such a placement. The issue has again been considered by the Upper Tribunal in London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC)

A is autistic and was placed as a border at a mixed residential and day independent school, PM School. The local authority issued a Statement of SEN naming PM as the placement in Part 4 of A’s Statement until July 2011, and then a mainstream, maintained sixth-form college, WM School, from September 2011. The First-Tier Tribunal (Special Educational Needs and Disability) allowed JH’s appeal against Part 4, ordering that only PM be named. There was a £37,000 per annum cost difference between the two.

Judge Lane in the Upper Tribunal allowed the local authority’s appeal on a number of grounds and remitted the appeal for rehearing.

First, the Judge referred to the well-known authorities that distinguished between a pupil needing a waking day curriculum (“WDC”) and simply needing consistency between home and school (eg. R(A) v Hertfordshire CC [2006] EWHC 3428 (Admin), [2007] ELR 95, The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658 and R (TS) v Bowen (Chair of SENDIST) [2009] EWHC 5 (Admin) (see the Upper Tribunal’s judgment at [18]-[19]). The question a tribunal had to decide was whether it was necessary for a child to have an extended extracurricular educational programme continuing after the school day. The tribunal also had to weigh the educational advantages of such a curriculum against the cost to determine if the resultant expenditure was unreasonable (see at [20]). The Judge also referred to the guidance on residential placements at para.8:74 of the SEN Code of Practice (to which he considered the Tribunal had paid “mere lip service”) (see at [21]-[22]).

The Judge concluded that the Tribunal had failed to compare the evidence relating to the competing schools fairly to see if a WDC was reasonably required. The findings made by the Tribunal were inadequate and there did not appear to be anything of significance to distinguish provision at PM from that proposed at WM (see at [23]-[25]).

Secondly, the Tribunal failed adequately to deal with the local authority’s evidence in relation to a transitional plan (see at [15], [26]). Thirdly, having failed to analyse properly whether a WDC was required the Tribunal’s conclusion that the £37,000 of extra cost at PM did not represent unreasonable public expenditure also fell (see at [27]). The Tribunal had also erred in failing to explain why it preferred the evidence of JH and PM that A would not cope at WM over the available evidence that A would be able to cope (see at [30]).

The judgment also raises three further points of wider interest. First, it is not open to parents to reserve their position on Parts 2 and 3 of the SEN Statement for any remitted hearing, if they have not challenged Parts 2 and 3 the first time round before the Tribunal (see at [8]-[9]). Secondly, in an interesting demonstration of the less formal approach to procedure in the Upper Tribunal compared to old appellate regime in the High Court, the local authority’s SEN case worker was allowed to provide input at the Upper Tribunal hearing on background matters (see at [3]-[4]). Thirdly, the Judge emphasised to parties and tribunals that the SEN process was co-operative and that neither party should be allowed to take advantage of their own lack of co-operation where that results in a lack of proper assessment (in this case the local authority alleged lack of co-operation by the parent in allowing access to A). The Judge also observed that where such lack of co-operation occurs the Tribunal should take particular care to apply its expertise to the evidence before rejecting as inadequate an outline plan for provision from a local authority (see at [17]).


SEN and Academies: The Upper Tribunal has its say

July 11th, 2012 by James Cornwell

Academies are independent, non-fee-paying schools funded by the Secretary of State. For special educational needs (SEN) purposes, although Academies are deemed to be mainstream schools (see the Education Act 1996, s.316(4)(b)(iii)), they are not subject to the duties in relation to SEN that maintained schools (as defined in s.312(5)) are. That gap is, however, (at least partially) plugged by the terms of the Funding Agreement between the Secretary of State and the Academy Trust. Indeed, in relation to Academies created since the Academies Act 2010, s.1(7) of the 2010 Act requires the Funding Agreement to impose “SEN obligations” (i.e. the obligations under Chapter 1 of Part IV of the 1996 Act) on the Academy.

But what is the position of an Academy with an older funding agreement that pre-dates the 2010 Act and which may not contain such extensive requirements in relation to SEN?

That was the issue that arose before the Upper Tribunal in SC v The Learning Trust (SEN) [2012] UKUT 214 (AAC). Mossbourne Community Academy (MCA) is an oversubscribed Academy in Hackney. SC’s son has a statement of SEN. She expressed a preference that MCA be named in Part 4 of his statement. MCA opposed this on the grounds that admitting the child would be incompatible with the efficient education of other children. The Learning Trust (which performs the role of local education authority in Hackney) refused to name MCA. SC appealed to the First-Tier Tribunal (Health, Education and Social Care Chamber) (Special Educational Needs and Disability) in relation primarily to Part 4. The Learning Trust opposed the appeal on the grounds that the child’s attendance at the Academy would be incompatible with the efficient education of other children and that his SENs could be adequately addressed elsewhere.

The Trust also applied for the appeal to be struck out on the basis that due to the terms of the funding agreement the decision of the Tribunal would not be binding on MCA. The Tribunal acceded to that application and struck the appeal out on the basis that the appeal had no reasonable prospect of success.

MCA’s funding agreement, which was not in the current form of the DfE’s Model Funding Agreement, dealt with admissions of pupils with SEN at paras.23-26 of Annex 3. Paragraphs 24 and 26, in particular, provided that:

“Where a local education authority proposes to name [MCA] in a statement of SEN made in accordance with section 324 of the Education Act 1996, the Academy shall consent to being named, except where admitting the child would be incompatibly [sic] with the provision of efficient education for other children, and where no reasonable steps may be made to secure compatibility.

In the event of any disagreement between the … Academy and the local education authority over the proposed naming of [MCA] in a statement, the Academy may ask the Secretary of State to determine whether [MCA] should be named. The Secretary of State’s determination shall be final.”

In reaching its decision the Tribunal’s reasoning was essentially: (1) an Academy is not a maintained school so s.324(5)(b) of, and para.3 of Schedule 27 to, the 1996 Act do not apply; (2) MCA had not provided a confirmation of place which the Tribunal would expect from an independent school before it would name an independent school and it was not prepared to; (3) the funding agreement was silent as to the effect of any Tribunal decision and neither imposed nor imported into the agreement any obligation on MCA to comply with a Tribunal decision; (4) even if the Tribunal were to name MCA, the Academy would not admit the child and the order would be unenforceable; and therefore (5) the appeal had, in practical and legal terms, no reasonable prospect of success.

SC appealed to the Upper Tribunal. Judge Rowland allowed the appeal without an oral hearing and remitted the case to the Tribunal to proceed to a full hearing.  SC’s first ground of appeal was that the Tribunal had erred in having regard to the potential enforceability of a decision in favour of the parents. Judge Rowland rejected that argument: the enforceability of the decision was a plainly relevant consideration in relation to the appeal’s prospects of success and a school ought not to be named if it was under no obligation to consider admitting the child and made plain that it would not. The parents’ second ground of appeal was that the Tribunal erred by assuming that MCA would not change its mind even if the Tribunal decided in their favour. Judge Rowland ultimately accepted this argument: MCA was under a public law duty to reconsider its position in the light of the decision of the Tribunal and it would be “irresponsible and irrational” not to look at the view of an expert and experienced tribunal on the very issue that MCA had to express a view on.

The parents’ third ground of appeal was, however, the crux of the case: had the Tribunal erred by considering that a decision in the parents’ favour would be unenforceable? The Secretary of State provided written submissions to the Upper Tribunal setting out his understanding of what would happen in those (now rare) cases where the funding agreement contained no reference to the effect of Tribunal decisions. The Secretary of State’s position was that on appeal the Tribunal stood in the shoes of the local authority and proposed the naming of a school. If the Academy disagreed with that proposed naming then it could object to the Secretary of State whose decision would be final. However, the Secretary of State found “it very difficult to envisage” circumstances where he would disagree with the Tribunal.

Judge Rowland essentially accepted the Secretary of State’s position. First, on the basis of the funding agreement if MCA was named in a statement following a proposal, MCA had to admit the child. Secondly, the Tribunal naming MCA could be construed as the “proposed naming” of the Academy for the purposes of the funding agreement. Thirdly, if there was a clearly unresolvable dispute between the local authority (or, standing in its shoes, the Tribunal) MCA was obliged (not simply permitted) to refer the matter to the Secretary of State to make a binding determination. The Judge concluded that the funding agreement was perfectly consistent with the parents’ right of appeal to the Tribunal. Following a successful appeal the local authority would propose to MCA its naming in the statement and MCA would then (in deciding whether to consent to the naming or refer the matter to the Secretary of State) be bound to have regard to the Tribunal’s decision and the likelihood of the Secretary of State agreeing with it.

The Judge concluded that the position of MCA and other Academies was “totally different” to that of a private independent school and was not greatly different from that of a maintained school.


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.


Some new SIs relating to teachers

March 8th, 2012 by James Cornwell

On 5th March 2012 a small cluster of statutory instruments following on from some of the changes brought in by the Education Act 2011 were laid before Parliament. Primarily, these address some of the consequences of the abolition of the General Teaching Council for England (“the GTCE”) (abolished by section 7 of the 2011 Act as from 1st April 2012). The regulations are the Teachers’ Disciplinary (England) Regulations 2012 (SI 2012/560) (“the Disciplinary Regulations”), the Education (Teacher Student Loans) (Repayment etc) (Amendment) Regulations 2012 (SI 2012/555) (“the Student Loans Regulations”), and the Education (Induction Arrangements for School Teachers) (England) (Amendment) Regulations 2012 (SI 2012/513) (“the Induction Amendment Regulations”) . All three regulations come into force on 1st April 2012.

The Disciplinary Regulations are the most substantial of the three. They provide for the procedure to be adopted by the Secretary of State when considering making a prohibition order under the new arrangements for teacher disciplinary regulation under sections 141A to 141E of the Education Act 2002 (inserted by the 2011 Act) following the abolition of the GTCE. The main points are:

  • Any decision under the Regulations may take into account a failure to comply with the personal and professional conduct standards set out in Teachers Standards.
  • Where the Secretary of State considers that a teacher may be guilty of unacceptable professional conduct or conduct that may bring the profession into disrepute or has been convicted of a relevant criminal offence, he must consider whether to discontinue the case or refer it to a professional conduct panel.
  • The professional conduct panel will consists of three persons (including at least one teacher and at least one other person) and must hold a hearing unless the teacher requests otherwise.
  • If the panel decides that the case is proven it must consider whether to make a recommendation to the Secretary of State that he make a prohibition order. The Secretary of State has to consider that recommendation and publish his decision. Where he decides to make such an order he must give notice to the teacher setting out the text of the order, the effect of the order and his reasons for making the order. The reasons must also be published. The Secretary of State must specify whether the order may be reviewed and, if so, the minimum period before which an application for review may be made.
  • The Secretary of State may also at any time when a decision is pending as to whether to make a prohibition order make an interim prohibition order if he considers it necessary in the public interest to do so. The teacher must be given seven days’ notice. The Secretary of State must review the order within 6 months and thereafter at 6 month intervals if the teacher makes a written application requesting a review.
  • There is a right of appeal against a prohibition order (but not an interim prohibition order) to the High Court within 28 days of notice of the order being served.

The Education (Teacher Student Loans) (Repayment etc) Regulations 2003 provide for reduction and repayment of student loans owed by newly qualified teachers in subjects where there are shortages of teachers. The Student Loans Regulations do two things. First, they remove the reference to the GTCE from regulation 10 of the 2003 Regulations (which requires the GTCE and General Teaching Council for Wales to provide information to the Secretary of State when he is considering an application by a teacher). Secondly, they revoke the Education (Teacher Student Loans) (Repayment etc) Regulations 2002, which should have been revoked when the 2003 Regulations came into force but were not.

The Education (Induction Arrangements for School Teachers) (England) Regulations 2008 provide that no qualified teacher is to be employed as a teacher at a relevant school unless he or she has satisfactorily completed an induction period. The Induction Amendment Regulations amend the 2008 Regulations in three areas:

  • They allow an induction period to be served in a 16-19 Academy (once the provisions in section 53 of the 2011 Act establishing such Academies are fully in force).
  • They add two new categories to the list of persons exempt from completing an induction period, namely those with Qualified Teacher Learning and Skills status and those qualified to teach in the state sector in Australia, Canada, New Zealand or the USA.
  • They substitute the Secretary of State for the GTCE in relation to certain functions in respect of induction periods. These principally concern: (a) the appointment of appeal panels to consider appeals against a decision that an induction period should be extended or that a teacher has failed satisfactorily to complete an induction period, and (b) the maintenance of a list of persons who have begun, but failed satisfactorily to complete, an induction period.


Local schools for local children

January 3rd, 2012 by James Cornwell

The Administrative Court has held in R (on the application of Roberts) v Welsh Ministers and Cardiff City Council [2011] EWHC 3416 (Admin) ( that a local authority is not precluded from adopting a policy which seeks to match school places with the likely demand from children within the catchment area of the school.

The case concerned a challenge to the decision of the relevant Welsh Minister to approve a proposal from Cardiff City Council to reorganise primary provision in the Whitchurch area of the city. Two English medium schools (Eglwys Wen and Eglwys Newydd – “EW” and “EN”) were to be closed and replaced by a single school located at a site shared by EW and a Welsh-medium primary school, Ysgol Melin Gruffydd.

Section 9 of the Education Act 1996 (“the 1996 Act”) imposes a duty upon the Secretary of State (or, in Wales, the Welsh Assembly Government) and local authorities to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. Section 86(1) of the School Standards and Framework Act 1998 (“the 1998 Act”) obliges a local authority to make arrangements for enabling the parent of a child to express a preference as to the school at which he wishes the child’s education to be provided.  Section 86(2) makes it mandatory for a local authority to comply with that parental preference but the duty does not apply if the preference would prejudice the provision of efficient education or the efficient use of resources.

Wyn Williams J identified the “nub” of one plank of the claimant’s challenge to be to the local authority’s avowed policy of “local schools for local children” (i.e. a policy essentially of ensuring that there were enough places for children in the catchment area but closing surplus places) (see at [123]). The Judge held that the effect of the above statutory provisions was that all local authorities have a duty to comply with parental preference unless compliance with the preference would prejudice the provision of efficient education or efficient use of resources within their administrative area. However, these did not preclude the adoption of a policy which sought to match school places with the likely demand from children within the catchment area of the school. Nor did the provisions make it unlawful for a local authority to have a policy which encourages children to attend the school in whose catchment area they reside. Wyn Williams J held that a local authority has an unqualified obligation to secure efficient primary education to meet the needs of the population of its area (under section 13 of the 1996 Act) and it was open to them to conclude that an appropriate means of securing such efficient education for the whole of its area was to seek to achieve a reasonable match between the number of places at a particular school and the demands for such places from the catchment area of the school. See at [124-125].

The Judge did not accept that, because a possible effect of the proposal might be that pupils who would attend EN or EW (should those schools continue to exist) but who resided out of their catchment areas would be forced to attend a school other than the new school which was intended to replace them, the policy was thereby in conflict with section 9 of the 1996 Act or section 86 of the 1998 Act. The aim of the policy was the provision of efficient education in whole of the administrative area and parental choice in any given case and, more particularly, the fact that choice in an individual case might be denied was not a reason for concluding that the policy was unlawful. See at [127].

Also of wider significance within Wales (although not England) is Wyn Williams J’s consideration of the Welsh Assembly Government’s Circular 21/2009, “School Organisation Proposals”. Section 2 of the Circular contains guidance relating to “popular” schools. The question arose as to whether the Minister should have treated EN as a “popular” school. The term “popular school” is not defined in the Circular. The Judge held, applying R (Raissi) v Secretary of State for the Home Department [2008] QB 836 that it fell to the court to determine the meaning of guidance contained in the Circular (rather than the court being limited to assessing whether the Minister’s interpretation of the guidance was a rational one). The Judge held that, in the context of the Circular, a reasonable and literate person would regard a school as popular only if the school’s surplus places were 10% or less over a period of time (see at [45-46]). The Judge further held that one of the bases on which the Minister had in fact decided that EN was not a popular school, namely relying on the number of surplus places at a particular moment in time when he knew or ought to have known that  the number was very unlikely to be properly representative, was irrational (see at [55-58]).

However the Judge decided not to quash the decision because he was satisfied that had the Minister applied the correct test there was no material that would have permitted the conclusion that EN was a popular school (see at [67-70], [149-162]). Similarly the Judge’s finding that the Minister failed to comply with his duty under Secretary of State for Education v Science v Tameside Metropolitan Borough Council [1977] AC 1014 to ascertain a proper factual basis for his assessment of the capital costs of implementing the proposal (see at [93-97]) did not lead to the decision being quashed because the issue in relation to costs simply did not arise if EN was not a popular school (see at [148], [158]).

Wyn Williams J also considered and rejected a number of other grounds of challenge specific to the particular facts of the case.


Demos, children and school uniform

September 20th, 2011 by James Cornwell

The duty under s.11 of the Children Act 2004 (and the statutory guidance in relation to the duty) to safeguard and promote the welfare of children has received detailed consideration by the Divisional Court (Pitchford LJ and Supperstone J) in Castle & others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin)

The case arose out of the demonstrations against the increase in tuition fees and abolition of EMA in November 2010. The three claimants were school children, aged 16, 16 and 14 respectively, who were peaceful participants “kettled” by the police in Trafalgar Square for several hours. They challenged their containment by way of judicial review alleging, amongst other things, breach of s.11 of the 2004 Act and breach of ECHR, Articles 5, 8, 10 and 11. Section 11 applies to a number of public authorities, including the police, and requires that “Each person and body to whom this section applies must make arrangements for ensuring that (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need (s.11(2)). There is also an obligation in discharging this duty to have regard to guidance issued by the Secretary of State (s.11(4)). The claimants argued that this required the Met’s planning for policing the demonstrations to embrace the need to safeguard and promote the welfare of children, so as to ensure that children would not be confined within crowd containment or were confined for the minimum period necessary.

The parties adopted different approaches to the scope of s.11: the Met argued that the duty only applied to institutional  matters, such as planning and training, rather than the operational decisions to implement and maintain containment on the day of the demonstration; while the claimants argued that the requirement to have specific regard to their duties towards children applied to those operational decisions.

The Court sided with the claimants on this issue. Applying the obiter dicta remarks of Baroness Hale in ZH (Tanzania) v SSHD [2011] UKSC 4 and In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 that the purpose of s.11 was to incorporate the UK’s obligations under the UN Convention on the Rights of the Child, including that the rights of children be a primary consideration in decision-making, the Court held that the chief officer’s statutory obligation was not confined to training and dissemination of information, rather “[i]t is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare”. This did not mean that the duties and functions of the police had been redefined and the impact of the duty would depend on the function being performed. However, in performing his duty to detect and prevent crime a police officer must, as the circumstances require, have regard to the statutory need.

The Court then considered whether a breach of the s.11 duty always renders a decision unlawful. The Court concluded that it was unlikely that, in the general performance of police work, there would be circumstances where that would be the case, because “it will be in rare circumstances that the failure to have regard to the statutory need will have any relevant impact upon or will qualify the ambit of the power [a police officer] is exercising”. However the duty would still be relevant to the issue of lawfulness of the containment. The Court further held that in the context of the duty on the Met to avoid interference with freedom of movement and therefore, where practicable, plan for alternatives to containment, the s.11 duty required that planning, either in advance or at the time the decision to contain was made, should, where appropriate, embrace the need to safeguard children and promote their welfare.

Applying these principles to the facts, the Court held that at the planning stage the Met did have regard to the statutory need. The officer in charge received, shared and sought further intelligence on the possible involvement of schoolchildren and at the planning stage there was no occasion to make specific arrangements for the management of children because there was no intelligence that they would attend in significant numbers. The officer had reminded his subordinates to protect the needs of the vulnerable, which was intended to include children. The Court further held that the claimants had not suggested any alternative to containment. There had been a plan to release vulnerable persons and officers on the ground and in a police helicopter repeatedly sought to identify child demonstrators, particularly those in school uniform (the claimants were not in school uniform), so that they could be released.  Nor, the Court held, was the period of containment of excessive duration. The Court therefore concluded that, while s.11 requires chief officers of police to carry out their functions in a way that takes into account the need to safeguard and promote the welfare of children, that duty had been discharged.


Government consults on new draft School Admissions Codes

June 20th, 2011 by James Cornwell

On 27th May 2011 the Department for Education launched a consultation on new draft School Admissions and School Admission Appeal Codes. The draft Codes and the consultation document are available at The consultation period lasts 12 weeks from the launch date. The draft Codes will then need to be laid before Parliament. They will not affect the next admissions round (for entry in September 2012) but would take effect for the September 2013 intake onwards.

Assuming that it is adopted in more or less the proposed form, then the main changes to the Admissions Code would be to:

• reduce the regulation of schools’ Published Admission Numbers (PAN) by, amongst other things, allowing a school to admit pupils in-year in excess of the PAN without the approval of the local authority.

• improve the current in-year applications scheme so fewer children face delays in finding a new school by placing the administration of in-year admissions in the hands of schools, rather than local authorities.

• allow admissions authorities to give priority to children of school staff when a school is over-subscribed, if the school wishes, making it easier for schools to recruit teachers and other staff.

• allowing children of armed forces personnel and twins and other multiple-birth children to be admitted to infant classes even if it takes the class over the 30-pupil limit.

• ban admissions authorities from using area-wide “lotteries”.

• reduce bureaucracy by requiring admissions authorities to consult on admissions arrangements only every seven years (rather than every three years) if no changes are proposed.

The draft Appeals Code removes what is described as “unnecessary prescription” with the intention of making the process cheaper and less burdensome. The proposals include:

• parents will have at least 30 days to lodge an appeal against primary or secondary school decisions, with the intention that parents are not encouraged to appeal unnecessarily in haste due to the current short deadline.

• The test to be applied by IAPs will be split into three clearer stages: lawfulness and correct application of the arrangements; whether there is prejudice; and balancing. This seems to reflect the Court of Appeal’s clarificatory rewriting of the existing test in R (M) v Haringey IAP [2010] EWCA Civ 113.

• Anyone will be able to object to the Schools Adjudicator about admissions arrangements. The deadline for objections to admissions arrangements will be moved backwards to 30 June.

The draft Codes are drafted on the assumption that the Education Bill (currently before the House of Lords) is enacted. The regulations underpinning the admissions regime will be amended in due course to bring them into line with the new Codes.