Dr SC HS 1736 2012
| Jurisdiction | UK Non-devolved |
| Judge | Judge M. Rowland |
| Judgment Date | 21 June 2012 |
| Neutral Citation | 2012 UKUT 214 AAC |
| Subject Matter | Special educational needs |
| Respondent | London Borough of Hackney |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1736 2012 |
| Appellant | Dr SC |
IN THE UPPER TRIBUNAL Case No. HS/1736/2012
ADMINISTRATIVE APPEALS CHAMBER
Before Upper Tribunal Judge Rowland
Decision: I refuse both parties’ requests for an oral hearing before the Upper Tribunal.
The appeal is allowed. The decision of the First-tier Tribunal dated 10 May 2012, whereby it struck out the appeal before it, is set aside and I substitute a decision that that appeal not be struck out. Accordingly, it remains to be heard by the First-tier Tribunal.
Subject to any further direction by the First-tier Tribunal, I direct that –
(a) the Appellant make, by 29 June 2012, a written submission to the First-tier Tribunal in reply to the Respondent’s response; and
(b) an oral hearing before the First-tier Tribunal be fixed as soon as possible.
REASONS FOR DECISION
1. Mossbourne Community Academy (“Mossbourne”) is a well-respected, and therefore oversubscribed, secondary school in Hackney. The Appellant is the mother of a Year 6 boy who has had a statement of special educational needs since March 2005. She expressed a preference for her son to be admitted to Mossbourne in September 2012 for Year 7. However, on 10 February 2012, the Respondent, which runs education services on behalf of the London Borough of Hackney, amended the Appellant’s son’s statement so as to name another school from September 2012. The Appellant and her son’s father appealed against Parts 2, 3 and 4 of the Statement but the grounds of appeal were primarily, if not entirely, aimed at Part 4. They wished Mossbourne to be the named school.
2. It is not clear, on the material before me, to what extent, if at all, the possibility of the Appellant’s son attending Mossbourne was discussed with Mossbourne before the statement was amended. In any event, by a letter addressed to the Respondent dated 16 March 2012, Mossbourne wrote “in response to the proposal to name Mossbourne Academy on the statement of special educational needs” to state that it was “unable to agree to the proposal to be named” on the ground that the Appellant’s son’s admission “would be incompatible with the efficient education of other pupils at the Academy” and, additionally, “due to the severe overcrowding and heavy pupil demand on existing resources, it is extremely unlikely that Mossbourne would be able to fully meet his needs”.
3. In its response to the appeal, the Respondent applied for the appeal to be struck out on the ground that a decision of the First-tier Tribunal would not be binding on Mossbourne, due to the terms of its funding agreement with the Secretary of State. It also opposed the appeal on the ground that the Appellant’s son’s attendance at Mossbourne would be incompatible with the efficient education of other children in the school and that his special educational needs would be adequately met at the school it had named in the statement. The parents, who did not have legal representation at the time, resisted the application for the striking out of the appeal on broad grounds that did not directly answer the Respondent’s points.
4. The most relevant provisions of the funding agreement are paragraphs 23 to 26 of Annex 3, concerned with the admission of pupils with special educational needs. With the deletion of the obvious error noted by the First-tier Tribunal, they read –
23. The Governing Body of the Mossbourne Community Academy shall ensure that pupils with SEN are admitted on an equal basis with others in accordance with its admissions policy.
24. Where a local education authority proposes to name Mossbourne Community Academy 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 with the provision of efficient education for other children, and where no reasonable steps may be made to secure compatibility.
25. In deciding whether a child’s inclusion would be incompatible with the efficient education of other children, the Academy shall have regard to the relevant guidance issued by the Secretary of State to maintained schools.
26. In the event of any disagreement between the … Academy and the local education authority over the proposed naming of the Mossbourne Community Academy in a statement, the Academy may ask the Secretary of State to determine whether the Mossbourne Community Academy should be named. The Secretary of State’s determination shall be final.”
5. On 10 May 2012, the First-tier Tribunal struck out the parents’ appeal on the ground that it had no reasonable prospects of success (see rule 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699)). In its reasoning, it broadly adopted the Respondent’s arguments. The judge said –
“5. I conclude that the position under the current legislation is as follows: Part IV of the Education Act 1996 (“the Act”) sets out the obligations in relation to children with special educational needs. Section 321 imposes a general duty upon a local authority towards children with special educational needs; section 323 the obligation to make an assessment of the child’s educational needs and section 324, the duty to make and maintain a statement of special educational needs where necessary.
6. Section 324(5)(b) states that the governing body of a maintained school, the name of which is specified in a statement, shall admit the child to the school.
7. Schedule 27 of the Act has effect in relation to the making and maintenance of statement and paragraph 3 of the Schedule sets out the process for enabling parents to express a preference as to the maintained school at which they wish education to be provided for the child.
8. Section 312(5) provides the definition of a “maintained school” for the purposes of Part IV. The definition does not include an academy. Hence, section 324(5)(b) and [paragraph 3 of Schedule 27] do not apply to academies.
9. The Funding Agreement of Mossbourne Community Academy dated 6 April 2004 and made between the Academy Trust and the Secretary of State for Education and Skills, identifies at paragraph 7 the Academy Trust’s undertaking to establish and maintain an independent school and the agreement sets out the characteristics, conditions and requirements imposed upon the Academy and the Academy Trust.
10. The Tribunal, on appeal, can name an independent school in Part 4 of a statement. In the absence of the statutory obligation imposed by section 324(5)(b) of the Act to admit a child following a successful appeal, the Tribunal has imposed a requirement that independent schools, in respect of which a party is appealing, provide written confirmation of the availability and offer of a place for the child. The written confirmation must be produced in the course of the appeal, thus ensuring that the decision of the Tribunal is enforceable in the event that the appeal is successful.
11. Mossbourne Community Academy has refused to provide the parents in the present appeal with such a confirmation of place and has provided a letter explaining why it is not prepared to make an offer of place for [their son].
12. The arrangements for admission of pupils with special educational needs are contained in Annex 3 of the Funding Agreement and contains no reference at all to the Secretary of State’s expectations of Mossbourne Academy in the event of a Tribunal decision naming it in Part 4 of the statement. Paragraph 24 states that where a local authority proposes to name the Mossbourne Community Academy in a statement, the Academy shall 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.
13. Paragraph 26 provides that “In the event of any disagreement between the City Academy and the local education authority over the proposed naming of the Mossbourne Community Academy in the statement, the Academy may ask the Secretary of State to determine whether the Mossbourne Community Academy should be named. The Secretary of State’s determination shall be final”.
14. The Annex does not include any agreement to implement decisions of the Tribunal and whilst I assume that the reference to “City Academy” in paragraph 26 is a typing error, the paragraph makes provision for resolution of any dispute regarding the suitability of Mossbourne Community Academy by the Secretary of State, whose determination shall be final.
15. The Funding Agreement, which is an agreement between the Academy Trust and the Secretary of State setting out the...
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