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28th August 2012

Admission to Academies of Children with Special Educational Needs

Academies established under the Academies Act 2010 are required by the provisions of their Funding Agreement to comply with special education needs obligations, which include a requirement to admit a child where the academy is specified in the child’s statement of special educational needs.

Academies established under the Academies Act 2010 are required by the provisions of their Funding Agreement to comply with special education needs obligations, which include a requirement to admit a child where the academy is specified in the child’s statement of special educational needs. An academy may object to a local authority proposing to name it in a statement if admitting the child would be incompatible with the provision of efficient education for other children and where no reasonable steps may be made to secure compatibility. But the academy may not refuse to admit the child if the local authority insists. The academy may, however, ask the Secretary of State to determine that the local authority has acted unreasonably in naming the academy and to make an order directing the local authority to re-consider. A parent, although not an academy, has a right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) in respect of the naming or refusal to name the academy in the child’s statement. The Tribunal’s decision is binding and, if the decision is different to any determination of the Secretary of State, it is substituted for the Secretary of State’s decision. Pre-2010 academies The position with academies established prior to the 2010 Act can be different depending on the terms of their Funding Agreement. The First-Tier Tribunal has very recently (August 2012) ruled that Mossbourne Community Academy (“Academy”) in London (established in 2004) is required to admit a number of children whose parents wished them to attend the Academy but in respect of whom the local authority had named other schools in their statements. The reasoning of the Tribunal is not publicly available because the decisions are circulated to the parties only. But these decisions follow a ruling of the Upper Tribunal dated 21 June 2012 in the case of SC v The Learning Trust (SEN) [2012] UKUT 214 (AAC) by which an appeal was reinstated having been struck out by the First-tier Tribunal. Strike out: First-tier Tribunal’s decision This case concerned the parents of a child with a statement of special educational needs who wished Mossbourne to be the named school. However, the local authority named another school. Mossbourne objected to the child’s admission on the basis that it would be incompatible with the efficient education of other pupils at the Academy and that, due to what it said was severe overcrowding and heavy pupil demand on existing resources, it was extremely unlikely that Mossbourne would be able to fully meet his needs. The child’s parents appealed to the First-tier Tribunal against the decision to name the other school in their son’s statement. The local authority applied to have the appeal struck out on the ground that the Tribunal’s decision would not be binding on Mossbourne because of the terms of its Funding Agreement. The material elements of the Academy’s Funding Agreement in summary were: Where the local authority proposed to name Mossbourne in a statement, the Academy was to consent to being named, except where admitting the child would be incompatible with the provision of efficient education for other children, and where no reasonable steps may be made to secure compatibility. In the event of disagreement between the Academy and the local authority over the proposed naming of Mossbourne in a statement, the Academy may ask the Secretary of State to determine whether it should be named. The Secretary of State’s determination is final. The significant point was that the Funding Agreement does not expressly state whether the Academy was required to admit a child if the First-tier Tribunal ordered the local authority to name it in the child’s statement. The First-tier Tribunal struck out the appeal on the ground that it had no reasonable prospects of success, in essence, because: The relevant statutory obligations regarding the requirement of a school to admit a child whose statement names the school did not apply to Mossbourne as it did not fall within the definition of a “maintained school”. Mossbourne had not provided written confirmation of the availability and offer of a place, which the Tribunal requires to be produced during the course of an appeal in respect of independent schools (to ensure that the decision of the Tribunal is enforceable in the event that the appeal is successful). Mossbourne’s Funding Agreement made no provision for the recognition or implementation of a decision of the Tribunal that a child with a statement should be admitted to the Academy and the Funding Agreement does not import into the agreement any obligation on the Academy to implement any decision of the Tribunal. Therefore, if the Tribunal were to decide that Mossbourne should be named in the child’s statement, the Academy had not consented to admit him and the order of the Tribunal would not be enforceable at law. The child’s parent decided to appeal to the Upper Tribunal. Upper Tribunal’s decision The Upper Tribunal ruled that the First-tier Tribunal was wrong to strike out the appeal. It concluded that, under the terms of its Funding Agreement, the Academy would be required to admit a child if the First-tier Tribunal ordered the local authority to name Mossbourne on its statement. The Upper Tribunal explained that, in the absence of an express provision in the Funding Agreement to this effect, a ruling of the First-tier Tribunal would be binding on the Academy in the following way. A local authority or, on appeal, the First-Tier Tribunal ought not to name Mossbourne unless it is satisfied that the admission of the child would be compatible with the provision of efficient education to other pupils there and that therefore its view is that Mossbourne should admit the child. If an appeal is successful and the local authority is ordered to name Mossbourne, that order would be subject to the consent to Mossbourne or the Secretary of State. However, it would be made in the expectation that Mossbourne would – or, at least, in their view should – give their consent. The local authority must therefore propose to Mossbourne that the statement be amended in light of the First-tier Tribunal’s decision. Mossbourne would be under a public law duty to reconsider its position in the light of the First-tier Tribunal’s decision. It would at least be bound to have regard to the First-tier Tribunal’s reasoning and it would no doubt also have regard to the likelihood of the Secretary of State’s agreeing with the Tribunal if the case were referred to him. If Mossbourne still refused its consent, the case would be referred to the Secretary of State. If he decided that Mossbourne should not be named, the local authority would refer the case back to the First-tier Tribunal which would be able to review its decision in accordance with its rules. If either Mossbourne or the Secretary of State accepted that Mossbourne should be named, the First-tier Tribunal would be fully effective, albeit possibly not always within the prescribed time limit. Comment The decision of the Upper Tribunal is significant in that it has established that academies established prior to 2010 may be subject to the jurisdiction of the First-tier Tribunal in relation to the admission of children with special educational needs. This depends on the terms of their Funding Agreement. Whilst the number of academies to which this decision will be relevant is limited, it does mean that such academies may face appeals to the Tribunal from parents of children with statements of special educational needs and the requirement to admit such children in the event that the appeal is successful, even where the academy does not consent. For further information, please contact Stephen Cole on 01604 233233 or on stephencole@hewitsons.com

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