Higher education and restricted access

April 4th, 2013 by Edward Capewell

What kind of restrictions can higher education institutions permissibly impose on prospective students? Clearly academic achievement must be one. But is it permissible to combine academic achievement with an overall cap on the number of places available for a particular course? In Tarantino v Italy the Strasbourg court decided that such a cap did not contravene the right to education in Article 2 of the First Protocol (A2P1).

Italy imposes numerical caps on various university courses such as medicine and dentistry based partly on Italian society’s need for members of those professions and partly on the resources of the universities which teach the relevant subjects. The applicants in Tarantino had unsuccessfully applied for medical and dentistry courses, both subjects which were very heavily over-subscribed. They challenged the cap on the basis that it disproportionately interfered with their right to an education.

The ECtHR, applying familiar principles concerning the inherent limitations on the A2P1 right and states’ margin of appreciation, found that the restrictions imposed by Italy were a proportionate means of achieving a legitimate aim and did not therefore violate A2P1. An interesting sub-issue was as to the compatibility of the ‘societal-requirement’ criterion with the principle of free movement of persons enshrined in Article 45 TFEU. The ECtHR seemed to think the criterion a little suspect in EU law terms (whilst obviously not making any finding on the issue) but nevertheless held that the Italian government was “entitled to take action with a view to avoiding excessive public expenditure”. Welcome words in these straitened times no doubt.

On the subject of higher-education restrictions, readers may recall the case of Damien Shannon who sued St Hugh’s College Oxford for refusing him a place on the grounds that he could not demonstrate that he had sufficient means to live in Oxford during his period of study. The case has now been settled with Mr Shannon being offered a place on the MSc in Economic and Social History and the university agreeing to review its existing financial guarantee policy.


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


Admissions and social mobility

September 14th, 2010 by Peter Oldham QC

There are currently news reports that the DfE is thinking about allowing some school to give admission priority  to poorer children.  If this is particularly aimed at academies, whether converters or free schools, then, given that the model funding agreement effectively requires them to abide by the School Admissions Code, are we going to see changes in the Code?

Peter Oldham QC


Admissions and policing the honesty of applications

August 3rd, 2010 by Peter Oldham QC

The Admissions Code deals with applications for admission where the applicant has not told the truth. It is one of the very few situations in which a place may, in certain circumstances, be withdrawn.

Our sister 11KBW blog on information law, https://www.panopticonblog.com/, has an entry for 2nd August written by our colleague Robin Hopkins, dealing with the decision of the Investigatory Powers Tribunal that Poole DC had misued surveillance powers under the Regulation of Investigatory Powers Act 2000 when it sought to police admission applications.

As Robin reports, the Council  suspected that an applicant may have lied about living in the catchment area of a sought-after primary school in Dorset. For about 3 weeks, therefore,  it covertly monitored the family.

The IPT found that:

(1) investigating a potentially fraudulent school application was not a proper purpose in the sense required by RIPA;
(2) the Council’s actions were in any event disproportionate, in that they were not necessary to achieve that aim; and
(3) the Council’s actions had breached the family’s rights under Article 8 of the ECHR.

Peter Oldham QC