Upper Tribunal decisions on Part 4 of SEN statements

May 31st, 2015 by Rachel Kamm

After a little holiday for the blog, we are back and you can expect a flurry of posts over the next few days.

First up, MA v Borough of Kensington and Chelsea (SEN) [2015] UKUT 0186 (AAC). In this judgment, the Upper Tribunal considers the legal status of an ASD unit within a mainstream school.

MA’s parents’ wanted a particular independent school named in Part 4 of MA’s SEN statement. By definition, an independent school is not a mainstream school (with limited exceptions) and therefore section 316 of the Education Act 1996 (which, in summary, gives parents a right to a mainstream school placement) did not apply. The First-tier Tribunal found that the independent school was not suitable for MA and therefore did not name it in Part 4. The parents were refused permission to appeal against this aspect of the decision.

The First-tier Tribunal went on to consider the local authority’s proposed school. This was an ASD unit, which was set up by a mainstream primary school. The First-tier Tribunal concluded that the ASD unit was part of the mainstream primary school and therefore counted as a mainstream school placement (even though it was in a separate building from the rest of the school and there would be limited integration). The Upper Tribunal agreed. This is thought to be the first decision that has expressly found that a SEN unit within a mainstream school is a mainstream school placement as a matter of law, which is important when considering parental preferences.

The Upper Tribunal also looked at parental wishes in  KC v LB Hammersmith and Fulham (SEN) [2015] UKUT 0177 (AAC). In this case, B’s parents wanted her to attend a specialist independent school. This was not a mainstream school for the purposes of section 316 of the Education Act 1996. The local authority proposed a special maintained school (also not a mainstream school). The first task for the First-tier Tribunal was to carry out the balancing exercise required by section 9 of the Education Act 1996 and to compare these two schools. It found that a placement at the parental preference specialist independent school would be unreasonable public expenditure. There was no appeal against this finding.

Once the parental first choice had been rejected, B’s parents’ second choice was a Free School, which was an independent mainstream school. The local authority did not object. However, the First-tier Tribunal found that it did not have jurisdiction to name the Free School. The Upper Tribunal found that this was an error of law.

Once the local authority had accepted that B could attend the Free School, the parents sought to resurrect the argument that the specialist independent school (their first choice) should be named. They asked the Upper Tribunal to carry out a section 9 balancing exercise, comparing the Free School and the specialist independent school.  The Upper Tribunal rejected this argument. There was no need to take section 9 into account for a second time, given that the local authority now only proposed the Free School because they acknowledged the parental right to their choice of mainstream placement (once their first choice specialist independent school had been rejected by the Tribunal).

The Upper Tribunal gave this extremely helpful summary of how the legislation fits together:

“15. The sequence, it seems to me is as follows. There may be a preliminary step in some cases of considering whether it is inappropriate for the child to be educated in school: that is the gateway to making provision out of school (TM v LB Hounslow [2009] EWCA Civ 859; [2011] ELR 137). Among the reasons for considering the question are firstly that there is little point in the local authority naming a school (at any rate as sole provision) if its view is that it is inappropriate for a child to be educated in school; and further, that s316 only applies “to a child with special educational needs who should be educated in a school”(s316(1)) and thus working out whether s319 bites is logically before one can later assess whether s316 is in play.

16. In a case to which sch 27, para 3 applies and the parental preference is not defeated by either of the express conditions in that provision, then the school of preference must be named by the authority. In a case where a preference under sch 27 para 3 case has been expressed , it is only once a parent has failed under that section that one comes to consider s316: (R (MH) v Special Educational Needs and Disability Tribunal and LB Hounslow [2004] EWCA Civ 770; [2004] ELR 424).

17. In a case to which sch 27 para 3 does not apply, in exercising the discretion which s324(4) confers on an authority with regard to naming a school, as with all its powers and duties under the Education Acts, section 9 must still be applied. The result of such an exercise is a factor to which regard must be had (Hampshire CC v R and SENDIST [2009] EWHC 626 (Admin); [2009] ELR 371) but does not exclude other factors (Watt v Kesteven CC [1955] 1 QB 408 at 424.) Section 9 does not create a qualified right to the school of preference as does sch 27 para 3 but that school requires to be addressed at this point, as part of the duty to comply with s9. …

19. At that point, therefore, when the fallback preference had been triggered, a local authority wishing to persist with placement in a special school would not be able to say that placement in a mainstream school would be incompatible with the wishes of the parent for the purposes of s.316(3) (even though there would not have been such incompatibility earlier, when the parent’s preference had been for a non-mainstream school). The fallback preference could be defeated if the authority could show that a mainstream placement would be incompatible with the provision of efficient education for other children, but that is not suggested to be the case here. Therefore, given the fallback preference had been expressed and the acceptance of its validity, the local authority was bowing to the inevitable in agreeing to mainstream provision.

20. The key questions in this case are, having arrived at this point in the analysis, (a) whether section 9 has any further life and (b) if it does, how it falls to be applied. …

22. I acknowledge that the Court of Appeal in MH said that it was necessary to apply sch 27 para 3 at the outset and that that provision has no further relevance when a s316 exercise is being undertaken. It would however be in my view an over-simplification to treat sch 27 para 3 (when a qualifying preference is expressed for a maintained school) and s9 (when the preference is for a non-maintained school) as direct equivalents and from that to argue that the relevance of s9, like that of sch 27 para 3, is confined to the front end of the logical process. The former is a provision applicable within a defined procedure, which – subject to defined exemptions – cuts across other provisions so as to create rights: cf. MH at [69]). The latter merely sets out a principle to which a local authority is required to have regard, among other considerations. It also is subject to defined exemptions but its field of application is far wider (the exercise of functions under the Education Acts) and it operates outside the ambit of a defined procedure. …

28. Given the principle of the fallback preference, I cannot see that it does any violence to the language of the section to treat “the wishes of [the parent]” as encompassing first the initial preference and, once that has failed and the fallback preference been triggered, the latter preference. Consequently, where the fallback preference has been triggered, the s9 principle would fall to be applied by reference to wishes under the fallback preference, just as before the fallback preference was triggered, it fell to be applied by reference to the original preference. 29. So understood, although s9 is capable of applying at this point of the analysis, it simply has no purchase as both the parent and the authority are agreed on a particular mainstream school once, applying ss316/316A, a mainstream school has been determined to be required.”

Finally, readers may be interested in this Upper Tribunal decision, where the First-tier Tribunal’s decision was set aside because of inadequate reasons a failure to apply the correct legal test when looking at the suitability of the proposed schools: Cambridgeshire County Council v SF (SEN) [2015] UKUT 0231 (AAC).

Rachel Kamm, 11KBW, (@Kamm11KBW)




Independent schools and the public benefit requirement

October 17th, 2011 by Rachel Kamm

The Upper Tribunal has promulgated its decision in two cases (heard together) about the public benefit requirement for educational charities. The judgment runs to 116 pages.

The Upper Tribunal identified the key issues as follows. First, “what the governing instrument of a school (where such an instrument exists at all) needs to provide in order for the school to be capable of being a charity“. Secondly,  “what a school actually needs to do to be seen as operating for the public benefit“.

The Upper Tribunal found that a trust which expressly excluded the poor from benefit could not be a charity. Charitable independent schools, like any other charity, must (in return for the privileges of charitable status) operate for the public benefit. This meant that they must run their charity to ensure that the poor could benefit in a way that was more than minimal or tokenistic. Once  that threshold was reached, what the trustees decided to do in the running of the school was a matter for them, subject to acting within the range within which trustees can properly act. When it came to considering whether a school which was a charity was operating for the public benefit in accordance with its charitable purposes, the primary focus had to be on the direct benefits which it provided. Scholarships or other forms of direct assistance to students were therefore important. Account could also be taken of other direct benefits, such as arrangements under which students from local state schools could attend classes in subjects not otherwise readily available to them and the sharing of teachers or teaching facilities with local state schools. Account could also be taken of a school making available (whether on the internet or otherwise) teaching materials used in the school and of making available to state schools facilities such as playing fields, sports halls, swimming pools or sports grounds. It concluded that the Charity Commission’s guidance needed to be corrected.

The procedural background to the case highlights the various ways in which issues can reach the Upper Tribunal. One case was a judicial review claim, brought in the Administrative Court by the Independent Schools Council challenging the Charity Commission’s guidance on the public benefit (see our previous post on the topic). When Mr Justice Sales granted permission, he also transferred the JR application to the Tax and Chancery Chamber of the Upper Tribunal. The second set of proceedings was a reference by the Attorney General under the Charities Act 1993, asking the Upper Tribunal to decide certain questions about the operation of charity law in relation to a hypothetical independent school. The Independent Schools Council and Charity Commission were joined as parties to the Attorney General’s reference and it was heard together with the JR application. The National Council for Voluntary Organisations and individuals acting on behalf of the Education Review Group intervened in the JR application and were permitted to make representations in the Attorney General’s reference.

Nigel Giffin QC appeared for the Independent Schools Council.


Non-maintained special schools

July 13th, 2011 by Edward Capewell

The Education (Non-maintained special schools) (England) Regulations 2011 (SI 2011/1627) were laid before Parliament on 8th July 2011 and will come into force on 1st September 2011. They are intended to align the requirements for non-maintained special schools with those for maintained special schools and they consolidate with amendments previous regulations from 1999. Notable effects of this SI include:

– Providing proprietors of such schools with an appeal to the First-tier tribunal against certain decisions of the Secretary of State (to withdraw approval etc.). Previously only judicial review was available

– Making provision for sixth-formers to withdraw from attending acts of religious worship. This aligns non-maintained schools with maintained schools.

– Removal of the requirement (previously in the 1999 regulations) for a non-maintained special school to provide a copy of its prospectus to the Secretary of State

You can read the regulations here and the explanatory memorandum here, both on the government’s helpfully tidied-up legislation.gov.uk website.


Review of private school charity rules

September 30th, 2010 by Rachel Kamm

There are news reports that the Attorney General has ordered the Charities Tribunal to review Charity Commission guidance for private schools on demonstrating the provision of a public benefit (which is essential in order to qualify for charitable status). This follows the Independent Schools Council’s pending application for judicial review, challenging the lawfulness of the Charity Commission’s guidance. The issue is whether the guidance places too great an emphasis on financial assistance by way of bursuries.