In my post on 19 May (below), I highlighted that a decision of the First-Tier Tribunal that Beis Aharon Jewish school was in breach of various independent school standards was reached without consideration of Article 9 of the European Convention on Human Rights, which provides for a right to manifest one’s religious belief. Section 6 of the Human Rights Act 1998 requires Tribunals themselves to make decisions in accordance with human rights like Article 9. Read more »

For those, like me, who keep a close eye on the development of the law on religious rights and freedoms, the decision of the First-Tier Tribunal in Beis Aharon Trust v Secretary of State for Education is certainly eye-catching.

Beis Aharon School is an independent Orthodox Jewish school in Hackney. It appealed against a decision of the Secretary of State ordering it to stop admitting new pupils from 23 October 2015 because it was failing to meet a number of the legislative standards applying to all independent schools (religious or not).

The Tribunal upheld the Secretary of State’s order. Read more »

The Chancellor’s Autumn Statement may be the subject of particularly close attention from local authorities and the governing bodies of maintained schools.

According to a number of mainstream media outlets (see here for the BBC: https://www.bbc.co.uk/news/education-34891689) the Statement will outline “plans to redress differences in school funding across England” following consultation which could begin in the next few months.

The context of the consultation is said to be the overall reductions in school budgets which will be seen in forthcoming years. Reductions across the board will hit some schools more than others. The Government seems to want to work out which areas may be most affected to inform how reductions may be made.

Achieving an overall reduction “fairly” is, of course, no easy task. By what indicators can or should it be assessed that particular schools or areas should receive a proportionately greater share of the diminished purse than others? Can or should they be the same as would be applied if now was a time of rising budgets? And to what extent is redressing differences in the quality of schools purely a financial matter, in any event?

No doubt whatever proposal emerges in due course will have its winners and losers. The BBC predicts that “London boroughs are likely to be among those that will lose out”. And no doubt lawyers in such boroughs, and elsewhere, will be examining the development of proposals closely to consider if there is scope for challenge in the courts.

A contention that a decision of a public authority is unlawful because it was taken in breach of the claimant’s legitimate expectation can be generally difficult to make out. R(C) v Westminster City Council (unreported), handed down in the last few days by the High Court, is a rare example of such an argument succeeding. More rarely still, the claimant established not that the council’s decision was in breach of a legitimate expectation that it would follow a particular process before being reached; but rather that it was in breach of his substantive legitimate expectation of a benefit, namely that the council would continue to fund his placement at a residential college for a further three years to allow for his completion of life skills courses and therapy.

The claimant was 21 and statemented. The local authority had confirmed that it would fund his three-year placement at an out-of-area residential college, at which he was to receive an academic course which normally lasted two years, as well as training towards independence, and speech and occupational therapy. The claimant successfully completed the course after two years but the other training and therapy which he was to receive remained outstanding. Upon the college’s requesting funding for a further two years, the authority decided to cease the placement and suggested that he attended a local college with a different support package.

The Court was unimpressed by the council’s change of position. It construed its initial confirmation of funding as being for three years providing the claimant progressed satisfactorily. The claimant had been the recipient of a clear promise to that effect. Although public authorities can seek to justify the frustration of a promise on the basis of an overriding interest, the council here did not seek to do so; it simply denied the existence of the expectation in the first place. So, the Court having found that the substantive legitimate expectation was, in fact, engendered, it followed that the claim succeeded.

Of some more general significance is the fact that the Court emphasized that the nature of the decision meant that it was subject to a greater degree of intrusive review by the court: few individuals were affected by it; it did not have any wide-ranging issues; the importance of what was promised was significant; and it only led to financial consequences for the local authority. This supports the view that the Courts may generally be more inclined to hold an authority to its promises in relation to the funding of special educational provision for an individual, than in other contexts.

The Court went on to find that, but for the breach of the claimant’s substantive legitimate expectation, it would otherwise have been lawful for the council to decide that the provision required by the claimant had changed. The problem for the authority was that the substantive legitimate expectation effectively precluded it from changing his support until the end of the period over which it had committed to provide it.

Fact-specific as this decision may have been, it provides a salutary warning to authorities about the importance of carefully expressing offers of provision, and encouragement to those who provision is withdrawn or changed in breach of an earlier commitment.

I was assisted in this blog by the case report obtained from Lawtel ©Thomson Reuters

We are grateful to a reader for highlighting the important decision of the Upper Tribunal in NM v London Borough of Lambeth [2011] UKUT 499 (AAC), in which a parent successfully appealed the FTT’s decision that a local authority’s failure to carry out a statutory assessment of her son under s.323 of the Education Act 1996 had been lawful.

Under section 323(1)-(3) of the Act, the question for the local authority is whether it is of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2) of that section. If it is of that opinion, then it is required by subsection (3) to make an assessment of his educational needs. A child falls within subsection (2) if he has special educational needs (which was not in dispute in the present case) and whether it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for. The question here for the FTT had therefore been whether it was probably necessary for Lambeth to determine the special educational provision which any learning difficulty L had called for.

In the Upper Tribunal, Judge Mark found that it had been an error of law for the FTT to have made no reference in its decision to the fact that, as was accepted between the parties, there had been effort and instruction by the school in respect of the child that went beyond a level usually commensurate with provision through School Action Plus, and which had been funded from additional funding delegated to the school by the local authority.

The Judge referred to paragraph 7.35 of the Code of Practice on deciding whether to assess, which requires local authorities to pay particular attention to “evidence that where some progress has been made, it has only been as a result of much additional effort and instruction at a sustained level not usually commensurate with provision through Action Plus”. Here, the authority (and the FTT) had proceeded on the basis that the child’s needs were adequately being met at School Action Plus. The UT held that this was not the test: “in considering whether to make an assessment, it appears to me that a local authority should consider what is appropriate and not just what is adequate” (see para 15: emphasis added). This was on the basis that, notwithstanding the wording of s.323, the fact is that if and when an assessment comes to be made, what would be required by a local authority is advice as to the provision which is appropriate for a child in the light of the features referred to in paragraph 7 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. Were it otherwise one would “end up with a two tier approach in which the local authority only has to consider what is appropriate on an assessment if it has first decided that the existing provision is less than adequate rather than that it is not appropriate” (para 15).

Judge Mark also cast some doubt on the lawfulness of paragraph 7.34 of the Code of Practice, in which it is stated that the critical question is whether there is convincing evidence that, despite the school having, with the help of external specialists, taken relevant and purposeful action to meet the child’s learning difficulties, these difficulties remain or have not been remedied sufficiently and may require the LEA to determine the child’s special educational provision. At para 16 the Judge said: “I am unclear how the requirement of convincing evidence can be reconciled with the “probably” provision of s.323(2). It seems to me that what should be required is evidence sufficient to satisfy the statutory requirement and not evidence that goes beyond that” (para 16).

The full implications of the Judgment still remain to be seen. For the moment it seems set to become a cornerstone of Appellant submissions before the FTT in refusal to assess cases.

The High Court this morning handed down judgment in R (on the application of Hurley and Moore) v Secretary of State for Business Innovation and Skills) [2012] EWHC 201 (Admin), in which sixth form students hoping to go to University challenged the Secretary of State’s decision, made through Regulations (SI 2010/3021 and 2010/3022) to allow universities significantly to increase their fees.
The decision to make the Regulations had been preceded by an independent review into university fees chaired by Lord Browne of Madingley. Under the Regulations, the fees which universities are entitled to charge go up to £9000 per year (if they have in place a plan approved by the Director of Fair Access to High Education), or to £6000 in other cases. Previously, the maximum charge in any case was £3,290. The student is not obliged to pay the fees back, however, until his or her studies are completed and his or her salary in employment exceeds £21,000 a year. The Secretary of State’s view is that a quarter of graduates will repay less over their lifetimes than they would do under the present arrangements.
Two grounds of challenge were advanced on behalf of the students.
It was argued, first, that the fees increase brought about by the Regulations was contrary to the right to education in Article 2 of the First Protocol to the ECHR (including if read together with the non-discrimination provision in Article 14). The primary argument was that the almost threefold increase in the size of the fees constituted a limitation on access to education which was disproportionate to the aim the Government was seeking to achieve. It was further claimed that the new funding arrangements indirectly discriminated against those from the lower socio-economic groups.
Elias LJ, giving the lead judgment, rejected both arguments, commenting that it would “take a very exceptional case indeed before it can be said that the charging of fees of itself, absent discrimination, deprives the right of its effectiveness at least where loans are made available to those who need them” (see para [42]). As to Article 14, the Court held that it could not be inferred from the evidence that the Regulations would, in fact, disparately impact on students from the lower socio-economic groups (paras [52] and [54]). Even if that was wrong, the Regulations could still be justified notwithstanding any discriminatory effect. Their objectives derived from the Browne analysis; namely to achieve the sustainable funding of high quality higher education and to secure that education is open to students who have the talent and motivation to succeed (but not simply “to save money”) (see paras [59], [61] and [62]). This was an area of macro-economic judgment involving prioritising particular public resources; significant leeway should be given to the Secretary of State in exercising it (para [63]).
The second ground of challenge was that the decisions to adopt the Regulations breached the Public Sector Equality Duties (“PSED”) which were found, at the material time, in s.71 of the Race Relations Act 1974 and s.49(1) of the Disability Discrimination Act 1995. In response, the Secretary of State relied on impact assessments which drew on material garnered as part of the Browne review.
Elias LJ held that there had on any view been very substantial compliance with the PSED (see [95]), but went on, at paragraph 96:
“However, I accept that if there is any doubt about whether a particular statutory objective is engaged, the issue needs to be explored before any conclusion can be safely reached that it is not. Insofar as the EIA purported to focus on the full package of reforms then under consideration and not merely the decision to increase fees, I cannot be sure that this has been done. I cannot discount the possibility that a more precise focus on the specific statutory duties might have led to the conclusion that some other requirements were potentially engaged and merited considerations…”
He “therefore conclude[d] that the Secretary of State did not carry out the rigorous attention to the PSEDs which he was obliged to do”, but was “satisfied that he did give proper consideration to those particular aspects of the duty which related to the principle of levying fees and the amounts of those fees”. Since the challenge was directed against the aspect of the Regulations which increased fees, it was not appropriate to grant all the relief which the Claimants were seeking (including a wholesale quashing of the Regulations), but it was appropriate to make a declaration to the effect that the Secretary of State had failed fully to carry out his PSEDs before implementing the Regulations. That was also because it would cause “administrative chaos” to quash (see paras [97] and [99]).
The Regulations remain set to come into force on 1 September 2012.

A judicial review which would have looked at the obligations (if any) on “old-style” (i.e. pre 2010 Act) Academies to admit children with Special Educational Needs has settled.
Prior to the Academies Act 2010, there was no doubt that an Academy, which is, in law, an “independent” school, had no statutory obligation to admit children with Statements naming it in Part 4 as the child’s placement. But the transitional provisions in ss.1 and 15 of the 2010 Act now allow for an argument that, whenever an Academy was established, it now falls under the same admissions obligations as “maintained” schools (even though provision is not expressly made for this in the school’s Funding Agreement) . If this is so, it will be obliged to admit a child if named in Part 4 of that child’s Statement.
Even though a mechanism generally exists in Academies’ Funding Agreements for admissions disputes to be resolved by decision of the Secretary of State, it remains unclear what effect such a decision has in law. This makes the issue above important.
This is not the first time that a challenge raising the issue has been settled since the Act has come into force but it is bound to be decided at some point. A safe bet is that a number of cases will give rise to the issue when Statements are finalised in cases of school transfers (e.g. from primary school to secondary school) by 15 February 2012.