Upper Tribunal (Administrative Appeals Chamber)

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 terms and conditions for the running of the “independent school”, makes no provision for recognition or implementation of a decision of the Tribunal and does not import into the agreement any obligation on the Academy Trust to implement any decision of the Tribunal.

 

16. Therefore, even if the Tribunal were to decide that Mossbourne Community Academy should be named in Part 4 of [the child’s] statement at the conclusion of the appeal, the Academy has not consented to admit him and will not admit him as a pupil, and the order of the Tribunal would not be enforceable in law as would a decision naming a maintained school.

 

17. I conclude that in practical and legal terms, the appeal has no reasonable prospect of success and should be struck out pursuant to Rule 8(4)(c) of the Tribunal Procedure Rules 2008.”

 

6. With the permission of the First-tier Tribunal, granted on 18 May 2012, the Appellant now appeals to the Upper Tribunal.  The appeal was lodged on 30 May 2012.  The First-tier Tribunal had alerted the Upper Tribunal to the likelihood of an appeal and had suggested that it be expedited.  Consequently, I had had an opportunity to consider the issues and was able to issue observations and case management directions on 31 May 2012.  Since the funding agreement was made between the Secretary of State for Education and Mossbourne, I gave them an opportunity to apply to be joined as respondents or simply to make written submissions as to the funding agreement’s meaning and the way it should work in practice. 

 

7. Notwithstanding the Jubilee and half-term holidays, the parties and potential parties have been able to stick to a tight timetable.  I am grateful to all of them and their representatives.  Neither the Secretary of State nor Mossbourne applied to be joined as a party to the proceedings.  However, the Secretary of State made a helpful written submission that, for reasons that will appear, is supportive of the appeal even though written in general terms and Mossbourne submitted a copy of a letter it had written to the Secretary of State requesting advice about the admission of pupils with statements of special educational needs.  The Respondent opposed the appeal and has maintained that stance when given an opportunity to comment on the Secretary of State’s submission.  The Appellant has submitted a detailed reply, addressing the points raised in my observations and the points raised by the Respondent and the Secretary of State. I have refused an application by Independent Parental Special Education Advice to be joined as a party to the proceedings.  I considered that its assistance was not required because the points that it had raised had either been addressed in the parties’ submissions and that of the Secretary of State or did not need to be decided.

 

8. Both the Respondent and the Appellant have asked for an oral hearing of this appeal.  I refuse those requests.  It is important to avoid delay (particularly in this sort of case) and unnecessary expense but, more importantly, I doubt that I would be significantly better informed or wiser after a hearing.  This is an appeal on a point of law.  The issues have been argued on paper in great detail.  It is not necessary to deal with all the alternative arguments raised by the parties and, for reasons that I will explain, I regard the Respondent’s position on the key issues to be untenable.  In all the circumstances, I am satisfied that I can properly determine this appeal without a hearing.

 

9. Although, as the First-tier Tribunal pointed out, academies are independent schools rather than maintained schools for the purposes of Part IV of the Education Act 1996 (concerned with special educational needs), they are still part of the state education system and it would be surprising if, on important matters, they did not owe duties to parents and children broadly similar to those owed by maintained schools.  A difference, of course, is that maintained schools are, by statute, largely controlled by local authorities whereas academies have a contractual relationship with the Secretary of State.  The consequence is that duties may be enforceable in different ways and be expressed in different ways.  However, once the structural differences are penetrated, the similarities become more apparent.  Ultimately, though, this case turns on the construction of the particular funding agreement for Mossbourne, for which the broad scheme of education law and practice provides no more than a backdrop.

 

10. The first ground of appeal, advanced by Mr Raj Desai of counsel (instructed by Mrs Elaine Maxwell of Maxwell Gillot Solicitors, Lancaster), joined in the reply by Mr David Wolfe QC, is that the First-tier Tribunal erred in having regard to the potential enforceability of a decision in favour of the parents when considering whether or not to strike out the appeal.  I reject this ground of appeal.  The appeal was not struck out under rule 8(3) of the 2008 Rules for lack of jurisdiction but under rule 8(4)(c) for lack of any reasonable prospect of success.  A school ought not to be named in a statement of special educational needs if it is under no obligation to consider admitting a child who is named in a statement and has made it clear that it will not do so.  The question whether a decision will be enforceable is obviously relevant to the question whether, in practical terms, an appeal has any prospect of success.  The Appellant’s representatives are right that enforceability may not be determinative, since a favourable decision may confer a practical advantage on a party without actually being enforceable, but it is plainly relevant.  Indeed, an appellant may be able to point to a potential practical advantage such that proceedings should not be struck out, even though his or her appeal is ultimately bound to be dismissed (see Welsh Ministers v Care Standards Tribunal [2008] EWHC 49 (Admin); [2008] 1 WLR 2097).  The question whether there might have been any practical advantage in the appeal proceeding in this case even if the decision was not enforceable is raised by the second ground of appeal and the question whether the First-tier Tribunal was right in its view as to enforceability is raised by the third ground.  As an independent ground, this first ground fails.

 

11. The second ground of appeal is that the First-tier Tribunal erred in concluding that Mossbourne would not admit the Appellant’s son if the parents’ appeal were successful.  The Respondent, through Ms Sarah Hannett of counsel, instructed by Ms Breda Maynard, submits that the First-tier Tribunal was entitled to conclude that Mossbourne would not change its position.  However, the real burden of the ground of appeal seems to be that the First-tier Tribunal merely assumed that Mossbourne would not change its position, without actually addressing its mind to the issue (see paragraph 16 of its decision).  What is also said is that, at the very least, Mossbourne would have been under a public law duty to reconsider its position in the light of the First-tier Tribunal’s decision.  This is a point that is best considered together with the third ground of appeal. 

 

12. I turn then to the third ground of appeal, which raises the key issue in this case.  It is submitted that the First-tier Tribunal erred in finding that a decision in favour of the parents would be unenforceable.  Three alternative methods of enforcement are proposed, but it is sufficient that I merely consider the role of the Secretary of State under paragraph 26 of Annex 3 to the funding agreement.

 

13. It is worth setting out in full the Secretary of State’s submission, put in by Ms Rachel Landau of the Legal Advisor’s Office of the Department for Education.

 

1.               The Secretary of State does not wish to make an application to be joined as a respondent in these proceedings at this stage but welcomes the opportunity to make a written response to clarify his views on the matters raised by the Upper Tribunal in its Observations dated 31 May 2012 (the Observations) in relation to this appeal This submission does not seek to comment on the details of this particular case, but rather intends to address the wider issues that appear to be relevant in light of the Observations.

 

2.               The Secretary of State wishes to make it clear at the outset that the Department's policy is that parents who wish an Academy to be named in a child's statement of Special Educational Needs (SEN) should have the same rights of appeal to the First-tier Tribunal (the Tribunal) in relation to the statement as parents who wish for a maintained school to be named.

 

3.               All funding agreements between the Secretary of State and Academies require that where a local authority proposes to name an Academy in a statement of SEN made in accordance with section 324 of the Education Act 1996, the Academy must 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 determining whether a child's inclusion would be incompatible with the efficient education of other children, the Academy is required to have regard to any relevant guidance issued by the Secretary of State to maintained schools. Where there is any disagreement between the Academy and the local authority over the proposed naming of the Academy in a statement of SEN, the funding agreements make provision for the Academy to request the Secretary of State to make a determination.

 

4.               The vast majority of funding agreements, namely those that were entered into from 2010 onwards, also place a contractual obligation on Academies to admit a child where they are named by a local authority in a statement, or where the Tribunal has determined that an Academy should be named following a parental appeal. This includes cases where the Secretary of State may have previously determined that an Academy was not under an obligation to admit and so a local authority had named a different school but the Tribunal had determined on appeal that the Academy should be named.

 

5.               However, the Secretary of State is aware that there are a very small number of Academies with funding agreements that were entered into prior to 2010 that, whilst specifying that the Secretary of State's determination in the event of a disagreement between the Academy and the local authority is final, do not specify this to be subject to any right of appeal to the Tribunal, nor that any decision of the Tribunal is to be binding.

 

6.               The Secretary of State considers that the absence of any reference to an appeal to the Tribunal by a parent in the provisions of these pre-2010 funding agreements does not mean that no such right exists, nor that the Tribunal has no role to play. However, he agrees with the views of the Upper Tribunal expressed in paragraph 6 of the Observations that, in such cases, in the event of an appeal to the First-tier Tribunal by a parent, the Tribunal would stand in the shoes of the local authority and, were the Academy to disagree with an order for it to be named on the child's statement of SEN, the Secretary of State would then have the final say as to whether the Academy should be named. Were the Secretary of State to subsequently determine that the Academy should be named then the Academy would be obliged under the terms of the funding agreement to comply with this. Should an Academy refuse to comply, the Secretary of State could seek to enforce compliance by way of an application to the courts for specific performance of the funding agreement.

 

7.               In practice, in cases relating to pre-2010 funding agreements, the Department would always expect an Academy to act reasonably and not fetter a parent's right to appeal to the Tribunal in relation to the naming of the Academy in their child's statement of SEN. Furthermore, were the Tribunal to order a local authority to name an Academy with a pre-2010 funding agreement the Secretary of State finds it very difficult to envisage circumstances in which he would disagree with the Tribunal should an Academy refer the matter to him for determination.”

 

14. Presumably, if the Secretary of State considered that the First-tier Tribunal had misapplied the law, he would suggest to the local authority that it appeal.

 

15. By clause 5 of the funding agreement, questions arising on its interpretation “shall be resolved by the Secretary of State after consultation with the Academy”.  However, I need not consider precisely what effect that has because, firstly, as the Respondent observes, the Secretary of State has not explicitly commented on the construction of this particular agreement and, secondly, I do not disagree with anything the Secretary of State has submitted.

 

16. The Respondent submits that the Secretary of State’s analysis fails to consider three important points.

 

17. First, it is submitted by the Respondent that the funding agreement contains no requirement, either express or implied, that Mossbourne admit a child whose statement of special educational needs names it as a result of an order of the First-tier Tribunal and, secondly, it is submitted that the dispute mechanism in paragraph 26 does not apply where a child is named in a statement following an order of the First-tier Tribunal.

 

18. It is true that there is no equivalent of section 324(5)(b) of the 1996 Act in the funding agreement (unless, perhaps, it can be considered part of “admissions law” for the purposes of clause 9(c)).  However, it is the clear – and I think undisputed – implication of paragraph 24 of the funding agreement that, where a child is named in a statement following a proposal of a local authority, Mossbourne must admit the child.  Why else would there be a need to impose a duty to consent to being named? 

 

19. The question is then whether the word “proposes” in paragraph 24 and the phrase “proposed naming” in paragraph 26 have the effect that paragraphs 24 and 26 would not apply if the First-tier Tribunal orders the local authority to name Mossbourne in the statement.  The Respondent submits that there is no “proposed naming” in those circumstances.  I disagree, for two reasons.  First, the language is no less apt where the First-tier Tribunal has ordered the naming than it is in other cases because, in the context of this particular funding agreement, any such order is necessarily subject to the consent of Mossbourne or the Secretary of State.  Secondly, I can see no proper reason why the parties to the funding agreement should have wished to draw a distinction between a case where a proposal comes on the initiative of a local authority and a case where the local authority is required to make it by the First-tier Tribunal.  In particular, why should Mossbourne be the sole arbiter of what is compatible with the provision of efficient education of other children in the latter case, when subject to the Secretary of State’s ultimate decision in the former case?

 

20. The third point argued by the Respondent is that paragraph 26 of Annex 3 of the funding agreement says that Mossbourne “may ask the Secretary of State to determine whether the Mossbourne Community Academy should be named”, which, it submits, confers an unfettered discretion and also makes no provision for the local authority to require the Secretary of State to determine the issue.  I do not accept that there is an unfettered discretion as to when to exercise the power.  The word “may” is presumably used because a disagreement may be resolved.  However, if it is clear that a disagreement will not be resolved, it seems to me that there is a clear public law duty on Mossbourne to refer the matter to the Secretary of State.  Otherwise, the purpose of the provision would be frustrated.  If Mossbourne failed to refer it, the local authority could no doubt itself draw the Secretary of State’s attention to the case.

 

21. In my judgment it follows that the funding agreement is perfectly workable in a way that is consistent with a parent’s statutory right of appeal to the First-tier Tribunal under section 326 of the 1996 Act, without any straining of language.  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 of 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 the light of the First-tier Tribunal’s decision.  Mossbourne 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 agreeing with the First-tier Tribunal if the case were referred to him.  If it 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 under section 9 of the Tribunals’ Courts and Enforcement Act 2007 and rule 48 of the 2008 Rules.  (The Respondent submits that there would have been no “change of circumstances” but I disagree because the decision of the First-tier Tribunal would have been made on the basis that the necessary consent would, or might, be forthcoming and the decision of the Secretary of State that Mossbourne should not be named would clearly alter that position.)  If either Mossbourne or the Secretary of State accepted that Mossbourne should be named, the First-tier Tribunal’s order would be fully effective, albeit possibly not always within the prescribed time limit.

 

22. It will be seen that I accept the Appellant’s submission, made in relation to the second ground of appeal, that Mossbourne is under a public law duty to reconsider its position in the light of a decision of the First-tier Tribunal.  It is, I think, implicit in Mossbourne’s letter to the Secretary of State that it does in fact do so.  It would be irresponsible and irrational not to look at a decision by an expert and experienced tribunal on the very issue on which Mossbourne has to express a view.  It is unnecessary on this appeal for me to consider in what circumstances, if any, Mossbourne could properly not accept the First-tier Tribunal’s view.  It is sufficient to note that the Secretary of State, who would be required to settle any dispute, gives the highest possible respect to decisions of the First-tier Tribunal.

 

23. The position of Mossbourne – and, I suspect, any other academy – is therefore totally different from that of a private independent school, which does not have any obligation to admit a child otherwise than on its own terms.  On the contrary and as one might expect, an academy’s position is not greatly different from that of a maintained school.  The First-tier Tribunal is not entitled to strike out a case merely because the academy’s current view is that it will not admit the child in question, although it could in theory strike an appeal out on the basis that the appellant had no prospect of persuading the First-tier Tribunal to take a different view from that of the academy.  I also observe that more recent funding agreements explicitly make decisions of the First-tier Tribunal determinative and also impose an express duty to admit a child who has a statement of special educational needs naming the academy in question.

 

24. It is unnecessary for me to consider the fourth ground of appeal, which raises points under the European Convention on Human Rights.

 

25. For the reasons I have given, the First-tier Tribunal, which did not have before it the detailed submissions that have assisted me, clearly erred in law in finding that the appeal before it had no reasonable prospect of success merely because of the terms of Mossbourne’s funding agreement and Mossbourne’s refusal to offer a place to the Appellant’s son before the parents’ case had been heard by the First-tier Tribunal.  It therefore erred in law in striking out the appeal.  I must allow this appeal and substitute a decision refusing to strike out the appeal, which consequently remains to be determined by the First-tier Tribunal.

 

26. This decision should not be taken to imply any view on my part as to the merits of the appeal before the First-tier Tribunal.  Indeed, it is not clear to me what the parents’ case is on the specific points raised by the Respondent that, firstly, the named school could adequately meet their son’s needs and, secondly, Mossbourne is overcrowded.  Accordingly I direct the Appellant to make a submission to the First-tier Tribunal by the end of next week.

 

27. It may be that, behind the substantive appeal before the First-tier Tribunal, there lies a general question about the co-ordination of the naming of schools in statements of special educational needs and the normal admission arrangements of oversubscribed schools and the consequences of that not being satisfactorily achieved.  In relation to Mossbourne and the facts of the present case, I draw attention to what may be an unintended lacuna in Annex 2 to the funding agreement, dealing with initial admission arrangements, although it is possible that there has already been an amendment.  Under paragraph 9(a), children with statements of special educational needs where Mossbourne is named in the statement have priority in the admissions process.  Note 2 to paragraph 12 and note 3 to paragraph 13 make it plain that children with special educational needs but without statements will receive equal consideration with other applicants in the allocation of places under paragraph 9(c).  However, no mention is made of children who have statements in which either no secondary school is named or in which another school has been named but there is an ongoing dispute as to whether Mossbourne should be named.  Should the notes to paragraphs 12 and 13 cover those children too?

 

 

 

 

 

Mark Rowland

21 June 2012