More parents will use tribunals to challenge academies that refuse to admit children with special educational needs (SEN) after a landmark legal judgment, experts have predicted.
Some academies set up before 2010 claimed they were exempt from SEN tribunal hearings. But in a case decided this week, parents were successful in challenging a decision to refuse their child a place at the highly praised Mossbourne Community Academy in Hackney, East London.
The appeal, the first of its kind, follows a ruling by a judge in June that parents should be able to challenge academies’ admissions decisions at SEN tribunals.
In the case at Mossbourne, the school had refused to admit a boy with cerebral palsy, claiming it had a disproportionate number of SEN children compared with other schools. It also said that admitting the boy would make the school “inefficient”.
When the child’s parents first tried to take the case to an SEN tribunal, representatives for the Hackney Learning Trust, which runs education services in the area, argued that Mossbourne did not come under the jurisdiction of the tribunal.
The trust applied to have the case struck out, and succeeded, but the family lodged an appeal, which resulted in this week’s ruling. Mossbourne has faced a total of eight appeals from parents at SEN tribunals.
Eleanor Wright, partner at Maxwell Gillott, the law firm that represented the family involved in this week’s decision, said a precedent had been set that would allow more parents to come forward.
“This clears up a serious potential problem, particularly for statemented children wanting places at older academies,” Ms Wright said. “There was a major gap in the law, which could have potentially caused massive injustice to disabled children. Had the original decision to strike out the case been upheld, it would have meant that families who want their children to attend one of the older academies would have been left with no remedy against the wrongful refusal of a place.
“They would have no right to appeal to an ordinary admission appeal panel because statemented children are supposed to appeal to the SEN tribunal, but they would not have been able to use the tribunal either. This gap has now been closed.”
Christopher Robertson, lecturer in inclusive and special education at the University of Birmingham, said the case could have a significant impact on other parents of SEN children. “It is possible that more parents will seek to make use of the tribunal. More parents may recognise that children with SEN have the right to go to academy schools. But I’m hoping what might happen is a change in behaviour in academies, so teachers take their admissions responsibilities much more seriously,” he said.
Evidence submitted to the tribunal by legal advisers for the Department for Education said that, in cases relating to pre-2010 funding agreements, the DfE would always expect an academy “to act reasonably and not fetter a parent’s right to appeal to the tribunal”.
The vast majority of academies set up after 2010 have it written into their funding agreements that they must accept the decisions of SEN tribunals. That is not the case in a “very small number” of academies opened before that date, according to the evidence.
For the 2012-13 academic year, 200 places were available in Year 7 at Mossbourne. More than 1,500 applications were received, including 56 for children with SEN. After the admissions process, 94 appeals were made, eight of which were reviewed by the SEN tribunal service.
A spokesman for Hackney Learning Trust said it had a responsibility to identify appropriate provision for children with SEN statements. “There is no evidence to suggest the admissions process needs to be reviewed following the outcome of the cases brought before tribunal service,” he said.
STATEMENT STATISTICS
3,280 - Number of appeals registered at the SEN tribunal service in 2009-10.
1,159 - Number of the appeals that were about a local authority refusing to assess a child for SEN.
55% - were appeals against the content of statements.
7% - were about a local authority refusing to give a child a statement.
