Can a local authority enforce a school named on an Education, Health and Care Plan to meet a pupil’s need, if that school is within a multi-academy trust and schools in MATs have no legal status?
Antony says: In answering this question, it is important to consider the key principles in respect of naming a placement, and then consider how they can apply to academies.
Making provisions for SEN
The starting point is that a statement/Education, Health and Care Plan (EHCP) must set out the child’s special educational needs (SEN) and lay out the required provision for those SEN, after which point the placement is determined. Only a school that is capable of meeting the required provision can be named in a statement/plan. So the first question to consider, is whether or not the proposed placement can fulfil the provision laid out in the statement/plan. If it can’t, then it can’t be named. If it can, then it potentially can be named. So if the academy can meet the needs and the school, parents and local authority are all agreed, then the academy can be named. This would be subject to the annual review process in the usual way.
Disputes between local authorities and academies
The question then arises: what if there is a dispute between the local authority and the academy about it being named? The answer will depend on the funding agreement. Since 2012, model funding agreements require academies to be named if the local authority makes this decision. However, academies can complain to the Secretary of State if named against their will.
In broad terms, where a parent requests an academy to be named, then it should be named unless specific statutory conditions apply. Broadly, these are:
1. that the school cannot meet the needs of the child;
2. that the child’s attendance is incompatible with the efficient education of others; or
3. that the child’s attendance is incompatible with the efficient use of resources.
Whether or not an academy can meet the needs of a particular child will very much be a case-by-case consideration. In respect of the impact on other children, any school wishing to make this argument must have cogent evidence. Cost considerations will apply when the parent wants one school that is more expensive than a local authority-nominated school.
Where a school is part of a multi-academy trust and therefore has no independent legal entity, the relevant question for the purposes of a statement/EHCP, is the school where the child will be educated. There has been recent case law on the meaning of a “school” for the purposes of being named in a statement/EHCP. While an academy does not have its own separate legal identity, there is a still a specific funding agreement in respect of the specific school and therefore a particular school would be named in the statement/plan. So, if a particular school is named in the statement/EHCP then this will have to be the place where the child is educated.
If an academy were to seek to move that child … they would be at risk of legal action by the parent
This may give rise to complex issues if a multi-academy trust desires to move a child from one school to another within the trust. If this were a desired course of action, an alternative placement would have to be identified as part of any process reviewing the statement/EHCP. If an academy were to seek to move that child from the school named in the plan it would appear highly likely that they would be at risk of legal action by the parent (and potentially the local authority would be an interested party too) and this may form the basis of a complaint to the Education Funding Agency (EFA). However as the local authority is not a party to the funding agreement, there is a question over what position the EFA would adopt in response to any complaint by the local authority. In any case, where a child has disabilities then any academy trust undertaking such a course of action would have to be very cautious to avoid claims under the Equality Act 2010.
Issues relating to SEN and academies have long been a source of controversy and can raise complex legal issues. This arises because of the legal framework in which academies and local authorities operate. Academies are governed by both the funding agreement and by statute law. Sometimes statute law will expressly apply under the funding agreement or it may apply under the terms of the specific statute. Academies should be aware that where statute law is specified in the funding agreement, then being in breach of that statute law could give rise to a public law claim and/or a complaint to the EFA. When it comes to SEN, local authorities are governed by statute law and have ultimate responsibility for making and maintaining statements/EHCPs.
So when it comes academies and SEN, there are a number of potential legal issues which have not yet been fully tested in case law. One of the commitments of the recent white paper is to work towards a legal framework that is fit for the long term. More clarity with regard to SEN would be welcome.
Antony Powers is a Partner at Michelmores law firm.