TB v Essex County Council (SEN) [2013] UKUT 0534 (AAC)

UKUT-AAC
TB v Essex County Council (SEN)
[2013] UKUT 0534 (AAC) · 2013-10-03
Section 9 - Pupils to be educated in accordance with parents’ wishes.

IN THE UPPER TRIBUNAL Appeal No. HS/230/2013

ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

DECISION

The decision of the Tribunal dated 5 November 2012 and heard under Tribunal reference SE881/12/00078 involves an error on a point of law. The tribunal’s decision is SET ASIDE and RE-MADE to the same effect under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007.I DIRECT that there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify any person who has been involved in the circumstances giving rise to this appeal, pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

REASONS FOR DECISION

1 The Appellant is Mrs B, brings this appeal with my permission. The appeal concerns the validity of a Statement of Special Educational Needs relating to her son, AB. Mrs B attended the oral hearing of the appeal at Field House, London, on 3 July 2013. Mr B, the child’s father, also attended. Ms Amelia Walker, of counsel, represented the appellant.2 The respondent is the Local Authority that maintains the Statement of Special Educational Needs for AB. They attended the hearing and were represented by Mr D Lawson, of counsel.3 I am grateful to both counsel for their careful submissions and supplementary submissions on the difficult points that arose. I am also grateful to Mrs and Mr B, who sat through a long day of technical legal submissions with great patience.4 The main issue in the case appears to be a novel one: Is the specific entity named in Part 4 of AB’s Statement of Special Educational Needs – ‘GROW Project’ (‘GROW’) - a school or other institution within the meaning of section 4 of the Education Act 1996? If it is, was it lawful to name it in conjunction with another entity, a pupil referral unit, at which A would be formally registered? If it is not a school or other institution, did the Tribunal comply with the requirements of section 319 of the Education Act 1996 in deciding to send him there?5 Unless indicated otherwise, all references to legislative provisions are to the Education Act 1996, which I will also refer to as ‘the Act’. The main provisions of the legislation to which I refer in the decision are included in an appendix at the end of the decision.

THE BACKGROUND

6 AB, who was born on 2 August 2003, has special educational needs which are addressed in a Statement of Special Educational Needs issued in July 2011. He has serious behavioural problems probably due to a combination of ADHD and autism. He could not cope in the mainstream school he was previously attending, nor could the school cope with him. The appellant, fearing that her son would be permanently excluded, withdrew him from the school.7 Mrs and Mr B and the relevant educational personnel at the school agreed that a mainstream school was not appropriate for AB. The Local Authority nevertheless initially named ‘a local authority maintained mainstream primary school’ for AB in Part 4 of the Statement of Special Educational Needs. Mrs B appealed the Statement on 1 June 2012. She and Mr B wished AB to attend D School, an independent school for children with autistic spectrum disorders.8 The Local Authority then changed its mind and submitted that AB should attend ‘GROW’, a unit based at WH Academy (‘WHA’). The Local Authority objected that D School was not entirely suitable for AB and that the cost of placement there would represent unreasonable public expenditure.9 There was not a great deal of evidence about what GROW actually was at the hearing, but the Tribunal was told that:(i) it was a new concept devised by Mr Whitfield, a senior educational psychologist employed by the Local Authority’s Educational Psychology Service, in discussion with the Executive Head Teacher of WHA. Mr Whitfield was heavily involved with the project, devoting four days a week to it.(ii) GROW’s aim was to support pupils with behavioural problems, whatever the cause, and help them reintegrate back into their mainstream schools. The Local Authority was prepared to provide funding for it. The pupils for the project were either registered at other schools which then referred them to GROW, or registered at a pupil referral unit (which, in the respondent Local Authority’s area are collectively called the Children’s Support Service (CSS)), which then referred them to GROW.(iii) unlike other pupils referred to GROW, AB could not be registered at another local mainstream primary school because Mrs B had withdrawn him from his previous school. Nor could he have been registered at WHA. Instead, the Local Authority would have him registered with CSS, with actual provision of his education at the GROW unit located at WHA. The Local Authority intended to keep AB at GROW until he transferred to secondary school in September 2014.(iv) WHA would have little to do with the work of the GROW project, but that pupils at GROW would wear WHA uniforms, have the opportunity to attend WHA assemblies and have break time with WHA pupils. The staffing at the GROW unit, its provision of the National Curriculum were described.10 It should be stressed at this point that the educational psychologists for both sides, Mr Bainer (for the appellant) and Mr Whitfield (for the Local Authority) agreed that GROW would be suitable for AB. Mr Bainer had reservations about GROW as a long term solution, if a suitable special school for AB could not be found in 2014, but the Tribunal did not share his concerns, which they found too speculative. The question of where he would be placed when the time for transfer came was a bridge to be crossed later.11 The appellant’s solicitor, Mr Duff, however, raised a new issue at the hearing: Was GROW a school as defined by section 4 of the Education Act 1996 (‘the Act’)? If it was not, the Tribunal could not place him there unless it found, under section 319(1) of the Act, that it was inappropriate to place him at a school. He argued that, since the Local Authority did not have any fundamental objection to placing AB at D School (the parents’ choice), it followed that it could not be inappropriate to place him at a school, so that naming GROW (which was not a school) was unlawful.12 This point was a fair one, albeit made at the last minute, and the Tribunal grappled with the conundrum on the hoof. It decided that section 319 was not engaged and, although both choices of school were appropriate, GROW was to be named in Part 4. The formula it used in Part 4 was -
‘[AB] will attend the GROW Project at the WHA… He will be formally registered at the Local Authority’s Children’s Support Service.’
13 The relevant paragraphs in the written decision explaining its reasoning are 33 and 34:33. ‘In reality AB would receive his education in a school setting; he would be taught by a teacher or learning support assistant in a portacabin within the grounds of WHA; his education would be provided ‘ within a school setting’ . [italicised by First-tier Tribunal]34. Secondly, and more important, we accept [Ms Y’s] submission that if he were placed at the GROW project, AB would formally be registered with CSS which has an appropriate departmental registration. It does not mean that if the placement turns out to be unsuccessful, or in 2013, [AB] would necessarily remain registered with CSS – urgent consideration would need to be given by the LA to his future placement and the likelihood would be that the future placement would be at a suitable special school. It is far from certain at the present time, on the evidence, whether the primary barrier to [AB’s] learning is his autism or his ADHD.’14 It should be noted here that AB was to be registered with CSS, without specifying any particular CSS unit. He would, however, attend GROW at WHA. There was no question that he would be sent to CSS unit at Wivenhoe which the appellant did not consider appropriate for AB.15 The Tribunal’s decision is easy to grasp, but hard to categorise in legal terms. It clearly intended AB to be registered at a pupil referral unit, which is a school under section 19. Pupil referral units have the power to send pupils ‘off site’ for instruction or training, as explained below, but all of educational provision for AB would be made off-site ‘in a school setting’ on the premises of another school (WHA).

THE LOCAL AUTHORITY’S DUTIES

16 It is convenient to start with the Local Authority’s duties, as relevant to this appeal. The Local Authority must provide appropriate education to pupils in their area who are of compulsory school age (s. 13A). A Local Authority is required to identify children for whom they are responsible in their area who have special educational needs [s. 321] and to make effective arrangements for them. A pupil may be educated at school or otherwise. A school is defined in s. 4 as an educational institution for primary or secondary education.17 Where the Local Authority maintain a statement of special educational needs for a child who should be educated in a school, they must educate him in a mainstream school, so long as that is not incompatible with the wishes of his parent or the provision of education for other children [s. 316]. If a Local Authority are satisfied that it would be inappropriate for a child’s special educational needs (or part of them) to be made in school, they may arrange to provide for those needs otherwise than in a school [s. 319].18 A Local Authority have power to make exceptional educational provision for children who would otherwise not receive suitable education for a period (through illness, exclusion or otherwise) by making special arrangements for them at school or otherwise than at school [s. 19(1)]. In England, a school which is established and specially organised to provide for these children (and which does not fall within certain other types of ‘school’), is called a pupil referral unit (s. 19(2B)). Under section 4(2), nothing precludes the making of part time arrangements at a school under s. 19(1), and a school which makes part time provision under s. 19(1) (rather than full-time education) is nevertheless to be treated as a school.19 It is not disputed that the Local Authority’s CSS is a school under this definition.20 Pupil referral units are funded by local authorities (School Standards and Framework Act 1998, s 45(1A)) as amended by the Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010/1158 Schedule 2(1) paragraph 7(2)).21 The management committee of a pupil referral unit was previously its governing body (paragraph 14 of the Education (Pupil Referral Unit)(Application of Enactments)(England) Regulations 2007 (SI 2007/2979)). In 2010, Schedule 1 of the Education Act 1996, paragraph 1 was amended to read ‘references in any enactment to the proprietor or governing body of a school shall be read, in relation to a pupil referral unit, as references to the Local Authority.’ The overall effect is that the Local Authority is the governing body of a pupil referral unit.22 Schedule 1 to the Education Act 1996 contemplates the legality of dual registration of pupils and attendance at more than one site where a pupil referral unit is involved. Paragraph 4 of Schedule 1 (Education Act 1996) provides that a person who is registered as a pupil at a school other than a pupil referral unit shall not, by reason only of being registered also as a pupil at such a unit, cease for the purposes of the Education Acts to be treated as a registered pupil at that school. This ensures that a pupil retains his status with the referring school whilst involved with the pupil referral unit.23 Under paragraph 6 of Schedule 1, the Local Authority, management committee and teacher in charge of a pupil referral unit must secure a balanced and broadly based curriculum for the purposes of the Education Act 2002 (ss 77(1)) though this does not specifically mean the National Curriculum.24 While pupil referral units are schools over which Local Authorities maintain financial and managerial responsibility, they are not technically ‘maintained schools’ which, for most purposes under the Education Acts, are defined as community, foundation or voluntary schools, community or foundation special schools, or maintained nursery schools.25 Local Authorities (and maintained schools) are encouraged, as ‘qualifying bodies’, to implement innovative projects to raise educational standards (Education Act 2002, s. 1).26 The 2002 Act allows the governing body of a maintained school to require registered pupils to attend at any place outside the school premises for the purposes of receiving any instruction or training included in the secular curriculum for the school (s ection 29(3)), and to require any registered pupil to attend at any place outside the school premises for the purpose of receiving educational provision which is intended to improve behaviour of the pupil (s. 29A). This applies equally to a Local Authority in respect of a pupil referral unit by virtue of Schedule 1 paragraph 14 of the Education (Pupil Referral Units)(Application of Enactments)(England) Regulations 2007.27 The wording in ss 29 and 29A of the 2002 enables a Local Authority to require any pupil to attend off site for the purposes envisaged, whether the pupil was registered at a maintained school or at a pupil referral unit. The Local Authority could, therefore, require a pupil with special educational needs to attend off site if this was an appropriate way of providing for his special educational needs. However, if the off site provision was to be made, ‘otherwise than at school’, s. 319 would come into play, and the Local Authority would have to be satisfied that provision wholly or partly at a school was inappropriate.IS GROW A SCHOOL?28 Under section 4 of the Education Act 1996, a school simply means an educational institution. Both sides accept that the term has not been explored in case law. R(Campbell) v Special Educational Needs and Disability Tribunal [2003] EWHC (Admin) CO/1632/2003 was brought to my attention, but it does not contain any learning on the issue.29 Like so many words in English, ‘institution’ can bear more than one meaning, but the common meaning is an establishment or organisation. In my view, the linking of ‘educational’ and ‘establishment’ also indicates formality of structure.30 The Tribunal in the appeal before me took two pronged approach to the status of GROW: it considered that GROW was a ‘school setting’ and that, in any event, AB would be registered at CSS, which counted as school. A school setting is not defined in the Act, and I have not been directed to any legislative provision which elevates a school setting into a school. To say that the education would be in a school setting begs the question of whether the AB would be attending an educational institution and, as mentioned in paragraph 26, if it is not an educational institution (‘school’) the requirements of s. 319 must be met before AB could be sent there.31 Mr Lawson submitted that whether something is a school is a question of fact to be decided according to the context in which the word is used [1]. (The bracketed references are to paragraphs in counsels’ skeleton arguments.) The definition in s. 4 is broad and inclusive. There is no justification, he argues, for reading into it limitations from other legislation unless the context or a particular provision so requires.32 Ms Walker, on the other hand, argues that in order to qualify as a school, the entity must comply with the requirements of the Schools Standards and Framework Act 1998 [1] (skeleton argument, [8]) and have as its purpose the provision of primary or secondary education, (‘skeleton’ [11]). GROW’s purpose, however, is to provide support for children whose behaviour was a barrier to learning in order to reintegrate them into their mainstream schools. It does not have any of the indicia of an educational institution. It has none of the governance structures required by sections 19(1) and 20(1) of the Education Act 2002. It is not registered as a school, and is not a pupil referral unit under section 19. It is not formally attached to an existing pupil referral unit and there is nothing in the evidence to show that CSS was responsible for, or directed, GROW or its programme. It is not inspected by Ofsted either as part of WHA or as an individual entity. It is not administratively part of WHA – it just happens to be on WHA’s land. It is not on a permanent site. Indeed, when AB first went to GROW, it was on two different sites. GROW has never been referred to as a school, but only as a project, a class base, special enhanced provision, a unit, resource base, or additionally resourced provision. The mere fact that the Local Authority considered that GROW should not be named in Part 4 without also naming in CSS is also an indication that it is not a school. Ms Walker argued that, if GROW is a school within the meaning of section 4, it is difficult to envisage what is not a school, apart, perhaps, from home tuition. Indeed, if the sole criterion is the provision of primary or secondary education, even home education would qualify as a school, and s. 319 is redundant (submission [9]).33 I have come to the conclusion that Mr Lawson is correct in saying that, unless the context otherwise requires, it is not justifiable to encrust the words ‘educational institution’ in s. 4 with the technicalities relating to the regulation, governance, financing and administration of schools associated with the various categories recognised for those purposes.34 This is not to say that the technicalities of ‘school’ or, indeed, the other indicia set out by Ms Walker, are irrelevant. In my view, they are factors which are helpful in assessing whether an entity is an educational institution. This is not, however, a tick-box exercise. Depending on the circumstances, a greater or smaller number of factors may serve to answer the question.35 The Tribunal did not approach the question of whether GROW was itself a school, and this was an error of law.36 Ms Walker’s next submission is that GROW is not an institution for providing primary education. I reject this argument. It places too great an emphasis on ‘for’ – meaning ‘in order to’ – and seeks to wrench out of ‘education’ aspects of discipline and behaviour with which education is intimately concerned. The link between education and behaviour is clear in s. 29A(1) of the 2002 Act, if any statutory provision were required for this proposition. Insofar as the curriculum is concerned, GROW delivers the National Curriculum to its pupils.37 I have come to the conclusion that it is appropriate to remake the Tribunal’s decision in the same terms, with expanded findings of fact, and explanation pursuant to s. 12(2)(b)(ii) of the Tribunals Courts and Enforcement Act 2007. I am in as good a position as the Tribunal below to do so.38 On the question of whether GROW is a school in and of itself, the respondent produced to me a witness statement from Mr Whitfield which gives confirms, in essence, what the Tribunal was told at the oral hearing. It has not been disputed and, indeed, Ms Walker relied on one of the paragraphs in the witness statement in elaborating her submission in relation to Part 4 of the Statement of Special Educational Needs. I have been given no reason to think the evidence in the witness statement is inaccurate. In any event, all it really adds to the evidence given at the First-tier hearing is detail on the governance of GROW and the chain of command linking it to the Local Authority. These are factors to be considered in deciding GROW’s status as a school.39 GROW is the product of a special educational initiative between a partnership of Academies and the Local Authority which is funded by the Local Authority. It has a management committee and a chain of command including the head teachers of two academies, the teacher who works at the GROW sites and Mr Whitfield, the educational psychologist employed by the Local Authority. The management committee is accountable to the Local Authority’s Behaviour and Attendance Partnership, which deals with improving behavioural standards and attendance at schools. Pupils are formally referred to GROW from academies and local schools. The GROW unit at WHA has three pupils, including AB. Two of these pupils (including AB) are on the register of CSS and one is registered at WHA. These pupils attend, generally, full time and may be taught together, as two are in year 5 and one in year 6. There are also 3 part time pupils, two of whom are registered at WHA and one at another mainstream primary school. Two of these pupils are in year 6 and are taught with the other full time pupils when they are present at GROW. The third pupil is in year 3 and is timetabled differently. Pupils from WHA come to the GROW unit about once per week for additional provision, such as social skills and to provide a peer group for the GROW pupils. Pupils attend it as their school for the time being but are also integrated with WHA pupils for PE and breaks, and wear the same uniform. I do not see that as objectionable, given that its pupils’ immediate surroundings are at WHA and its function is to reintegrate its pupils into mainstream education. GROW also offers the National Curriculum. Indeed, GROW looks very like a school specially organised to fulfil the purposes of a pupil referral unit, though it has not been given that name.40 GROW does not have its own premises, but I do not consider that to be of any real significance in the context of an entity funded by a Local Authority and closely monitored by it. It is also, in my view, not determinative that GROW does not fall within a recognised category of school for other purposes. It is true that both the Local Authority and the Tribunal considered it necessary to name both CSS and GROW in Part 4 of the Statement of Special Educational Needs, though they did not give their reasons. This does not suggest to me that GROW cannot be of sufficient standing to be an educational institution for the purpose of fulfilling a child’s special educational and behavioural needs with a view to sending the child back into a more formal setting when he is ready. In any event, this is only one factor amongst many.41 Taken overall, I consider that the factors in paragraph [39] point strongly to the conclusion that GROW is a school for the purposes of s. 4, and I so find. This means that s. 319 is not engaged. The Tribunal did not err, therefore, err in not applying s. 39, though its reasons were not quite right.

The Part 4 Order

42 The Tribunal named CSS together with GROW in Part 4 of the Statement of Special Educational Needs. Ms Walker objects that this cannot be done. ‘Cannot’ is a strong word. It may be unusual to see two schools named, but I do not see why that could not be lawfully done if the Tribunal considers that this is what is required to meet the special educational needs of the child. The main task of the Tribunal, after all, is to ensure that a pupil’s special educational needs are appropriately met.43 There is little by way of authority on the point. The special educational needs code of practice refers to naming two schools in paragraph 8.87, but that is in the context of choosing schools where travelling costs are in issue. In that context, R (K) v London Borough of Havering ex parte K [1997] UKHC 780, Sedley J (as he then was) thought there was no reason why more than one school should not be specified in a statement if, in the view of the authority or Tribunal, more than one school would equally answer the child’s needs. The context of his dictum, however, was very different. The Court of Appeal dealt with the issue of naming more than one school in Part 4 where transport issues were involved in Dudley Metropolitan Borough Council v Shervinton [2012] UKCA Civ 346 but expressly declined to give its views on whether more than one institution could be named as a matter of general principle.44 Case law does exist, however, in which tribunals have ordered more than one type of educational provision in Part 4. MS v Brent [2011] UKUT 50 (AAC) is an example. In that case, Upper Tribunal Judge Levenson did not doubt that a Tribunal could lawfully order a pupil to have his education provided partly at a mainstream school and partly at home. The question was how s. 319 was to be interpreted in those circumstances.45 A further scenario would arise where a child with special educational needs was to be assigned to a maintained school (mainstream or special) but required to attend a pupil referral unit for some of his training, as envisaged by s. 29 or s. 29A of the 2002 Act. Although no cases were cited to me, this is a situation which would fit within those sections. Making an order under Part 4 to formalise that provision would, in my view, be lawful. The case before me is somewhere in-between: AB is to be assigned to a CSS, which has the power to send him off site.46 It seems to me that, in order to ensure that a Local Authority or Tribunal standing in their shoes can make the appropriate provision to meets a child’s special educational needs, it must be possible to name more than one institution in Part 4, where that is appropriate. In a situation such as in this appeal, I can see no objection to placing a pupil formally on the school register of, say, CSS and having him attend off site. Since the Statement of Special Educational Needs crystallises the provision to be made and the place at which it is made, AB could not be moved to CSS or anywhere else without amending the statement.47 I am aware of Ms Walker’s argument that, by naming CSS, the Tribunal was naming an inappropriate school. She refers to Mr Whitfield’s witness statement at paragraph 16 to support this. I do not accept her interpretation of Mr Whitfield’s statement and, more importantly, of what the Tribunal said. At [2] and [4] the Tribunal notes objections from AB’s previous head teacher and Mrs Tyndale-Biscoe (an educational psychologist) that Wivenhoe unit would be inappropriate. At [20] – [21] the Tribunal notes the appellant’s objection to CSS, based on her association of CSS with the Wivenhoe unit and that Mr Whitfield does not entirely agree. Its response is not to place AB at Wivenhoe, but at CSS generally. As mentioned previously, AB is not placed at Wivenhoe and cannot attend other than at GROW without an amendment to the Statement of Special Educational Needs.48 For the sake of completeness, I would say that the question of adequacy of the Reasons in other respects was, rightly, not pursued at the hearing. The weight of expert opinion on both sides was that GROW was appropriate for AB for the time being. A specialist Tribunal accepted that opinion. The Tribunal made amendments to the Statement of Special Educational Needs which reflected AB’s needs and the provision that needed to be made. It was satisfied that provision could be met at GROW. There are inevitably elements of futurity, and therefore of prognostication, in a SEN Tribunal’s conclusion that the provision specified would be met at the named school. Nothing raised in the pleadings begins to show that the Tribunal’s analysis of the evidence and conclusion was wrong, let alone so wrong that the Upper Tribunal would have the right to interfere.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 3 October 2013

APPENDIX - THE LEGISLATION (as amended at the relevant time)

Education Act 1996

Section 2 – Definition of primary … education

(1) In this Act ‘primary’ education means –

(a) full-time or part-time education suitable to the requirements of children who have attained the age of two but are under compulsory school age;(b) full-time education suitable to the requirements of junior pupils of compulsory school age who have not attained the age of 10 years and 6 months; and(c) full-time education suitable to the requirements of junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with junior pupils within paragraph (b)

Section 4 – Schools - general

(1) In this Act, ‘school’ means an educational institution which is outside the further education sector and the higher education sector and is an institution for providing(a) primary education(b) secondary education, or(c) both primary and secondary educationwhether or not it also provides …further education.(2) Nothing in subsection 1 shall be taken to preclude the making of arrangements under section 19(1) (exceptional educational provision) under which part-time education is to be provided at a school; and for the purposes of this Act an educational institution that would fall within subsection (1) but for the fact that it provides part-time education rather than full-time education shall nevertheless be treated as a school if that part-time education is provided under arrangements made under section 19(1).In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.Section 19 - Exceptional provision of education in pupil referral units or elsewhere.(1) Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.(2B) Any school established in England (whether before or after the commencement of this Act) and maintained by a local authority which—(a) is specially organised to provide education for such children, and(b) is not a community or foundation school, a community or foundation special school or a maintained nursery schoolshall be known as a “pupil referral unit”.(4A) In determining what arrangements to make under subsection (1) or (4) in the case of any child or young person a local education authority shall have regard to any guidance given from time to time by the Secretary of State.(5) Any child for whom education is provided otherwise than at school in pursuance of this section, and any young person for whom full-time education is so provided in pursuance of this section, shall be treated for the purposes of this Act as a pupil.

(6) In this section

…

“suitable education”, in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have (and suitable full-time education is to be read accordingly)..
(7) Schedule 1 has effect in relation to pupil referral units.316 Duty to educate children with special educational needs in mainstream schools(1) This section applies to a child with special educational needs who should be educated in aschool.(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–(a) the wishes of his parent, or(b) the provision of efficient education for other children.(4) In this section and section 316A“mainstream school” means any school other than–(a) a special school, or(b) an independent school which is not– (i) a city technology college,

(ii) a city college for the technology of the arts, or

(iii) an Academy.

Section 319 - Special educational provision otherwise than in schools

(1) Where a local education authority are satisfied that it would be inappropriate for—(a) the special educational provision which a learning difficulty of a child in their area calls for, or(b) any part of any such provision,to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.(2) Before making an arrangement under this section, a local education authority shall consult the child’s parent.324.— Statement of special educational needs.(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27 , it is necessary for the local authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.(2) The statement shall be in such form and contain such information as may be prescribed.

(3) In particular, the statement shall—

(a) give details of the authority's assessment of the child's special educational needs, and(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).

(4) The statement shall—

(a) specify the type of school or other institution which the local authority consider would be appropriate for the child,(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.(4A) Subsection (4)(b) does not require the name of a school or institution to be specified if the child's parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.

(5) Where a local authority maintain a statement under this section, then—

(a) unless the child's parent has made suitable arrangements, the authority— (i) shall arrange that the special educational provision specified in the statement is made for the child, and(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and(b) if the name of a maintained school or maintained nursery school is specified in the statement, the governing body of the school shall admit the child to the school.(5A) Subsection (5)(b) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of the School Standards and Framework Act 1998 .(6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section.

Schedule 1

1-References in any enactment to the proprietor or governing body of a school shall be read, in relation to a pupil referral unit, as references to the local authority.3 -Regulations may provide for any enactments relating to schools maintained by local authorities (or schools including such schools)—(a) to apply in relation to pupil referral units,(b) to apply in relation to such units with such modifications as may be prescribed, or(c) not to apply in relation to such units.4 -(1) A person who is registered as a pupil at a school other than a pupil referral unit shall not, by reason only of being registered also as a pupil at such a unit, cease for the purposes of the Education Acts to be treated as a registered pupil at that school.(2) In this Schedule “registered” means shown in the register kept under section 434.6.—(1) In relation to every pupil referral unit, the local authority, the management committee that the curriculum for the unit satisfies the requirements of section 78(1) or 99(1) of the Education Act 2002 (balanced and broadly based curriculum).

Schedule 27

3.—

(1) Every local authority shall make arrangements for enabling a parent–

(a) on whom a copy of a proposed statement has been served under paragraph 2,(b) on whom a copy of a proposed amended statement has been served under paragraph 2A , or(c) on whom an amendment notice has been served under paragraph 2A which contains a proposed amendment about– (i) the type or name of a school or institution, or(ii) the provision made for the child concerned under arrangements made under section 319 ,to be specified in the statement, to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.(2) Any such preference must be expressed or made within the period of 15 days beginning—(a) with the date on which the written notice mentioned in paragraph 2B ] was served on the parent, or(b) if a meeting has (or meetings have) been arranged under paragraph 4(1)(b) or (2) , with the date fixed for that meeting (or the last of those meetings).(3) Where a local authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless—(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

Education Act 2002

29 Additional functions of governing body

(1) The governing body of a maintained school shall—

(a) establish procedures for dealing with all complaints relating to the school or to the provision of facilities or services under section 27 , other than complaints falling to be dealt with in accordance with any procedures required to be established in relation to the school by virtue of a statutory provision other than this section, and(b) publicise the procedures so established.(2) In establishing or publicising procedures under subsection (1), the governing body shall have regard to any guidance given from time to time (in relation to England) by the Secretary of State or (in relation to Wales) by the National Assembly for Wales.(3) The governing body of a maintained school may require registered pupils to attend at any place outside the school premises for the purposes of receiving any instruction or training included in the secular curriculum for the school.(4) In subsection (3) “maintained school” do es not include a maintained nursery school.

(5) The governing body and head teacher of—

(a) a community or voluntary controlled school,(b) a community special school, or(c) a maintained nursery school,shall comply with any direction given to them by the local authority concerning the health and safety of persons on the school's premises or taking part in any school activities elsewhere.29A Power of governing body in England: educational provision for improving behaviour(1) The governing body of a maintained school in England may require any registered pupil to attend at any place outside the school premises for the purpose of receiving educational provision which is intended to improve the behaviour of the pupil.(2) In subsection (1) “maintained school” does not include a maintained nursery school.

(3) Regulations must make provision—

(a) requiring prescribed persons to be given prescribed information relating to the imposition of any requirement under subsection (1), and(b) requiring the governing body of the school to keep under review the imposition of any such requirement.

(4) Regulations under this section may also make provision—

(a) requiring a governing body exercising functions under subsection (1) or under the regulations to have regard to any guidance given from time to time by the Secretary of State,(b) prohibiting a governing body from exercising the power conferred by subsection (1) in such a way that any pupil is required to receive educational provision outside the school premises for a greater number of days in a school year than is specified in the regulations,(c) requiring the governing body to request prescribed persons to participate in any review of the imposition of a requirement under subsection (1),(d) about the time within which the first review must be held and the intervals at which subsequent reviews must be held, and(e) in relation to any other matter relating to the exercise of the power conferred by subsection (1).Education (Pupil Referral Units)(Application of Enactments)(England) Regulations 2007 SI 2007/297914.—(1) Section 29(1),(2) and(3) of that Act (additional functions of governing body) applies in relation to units as it applies in relation to maintained schools with the following modifications.(2) Section 29(1) and (3) of that Act have effect as if for “the governing body of a maintained school” there were substituted “the management committee”.(3) Section 29(2) of that Act has effect as if for “the governing body” there were substituted “the management committee”.

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[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 3 October 2013

Cited in 3 later judgments