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.

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