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Unleashing greatness – getting the best from an academised system
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However, the model funding agreement (Annex C) appears to suggest
that, in the case of a pupil with a statement of special educational needs,
the local authority can propose to name an academy in a statement
to admit her or him, but the academy can appeal to the Secretary of
State to make a (different) determination. This is rather different. The
Commission has found that even legal experts find the implications
challenging, illustrating the lack of transparency for parents and other
non-expert stakeholders.
Admissions of pupils with special educational needs (SEN)
andbehavioural, emotional and social difficulties (BESD)
Concerns about fairness have focused especially on provision for
pupils with statements of special educational need (SEN), behavioural,
emotional and social difficulties (BESD), and other vulnerable pupils.
The admission of pupils with statements of SEN to academies
is a complicated area, as suggested above, and submissions to the
Commission expressed concerns that academies’ admission arrangements
do not provide equal access and provision.
Two recent moves substantially address concerns about exclusive
practice. First, following the Academies Act 2010, arrangements for
admitting pupils with statements of SEN have changed. Responding to
campaigns and pressure in the House of Lords, the government amended
the legislation to achieve ‘absolute parity’ between maintained schools
and academies in relation to SEN. All funding agreements for academies
opened after 2010 must now include details of their ‘SEN obligations’.
While campaigners welcomed this improvement, concerns remain that
funding agreements still do not give parents the same rights of redress
asthey have in community schools.
Second, the recent high profile First-tier Tribunal Special Educational
Needs and Disability (SEND) cases and decisions in relation to
Mossbourne Academy and Hackney local authority have provided clarity
about whether the legal rights of parents of children with statements
of SEN are the same in academies that were established before 2010 as
they are in maintained schools. The SEND Tribunal treated academies
as independent schools rather than maintained schools (see the note
on terminology in chapter 1); independent schools have no statutory
obligation to admit pupils with statements in compliance with Tribunal
orders. However, the Upper Tribunal ruled instead that academies should
be assumed to comply in the same way as maintained schools. This
decision will now stand. Subsequently, the Tribunal has ruled in favour
ofthe majority of the families bringing cases in the Mossbourne/Hackney
case (IPSEA, 2012). Although, in theory, the Secretary of State remains
the final arbiter in each academy case, on the basis of academy funding
agreements, he has said that he cannot foresee that he would disagree
withor intervene inTribunal decisions related to special educational
needsanddisability.
It remains the case, however, that legislation applied to maintained
schools is different from that applied to academies’ appeals: paragraph 3
of Schedule 27 of the Education Act 1996 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 their child. Where the parent expresses
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73
such a preference, the local authority ‘..shall specify the name of that
school unless the school is unsuitable to the child’s age, ability or aptitude
or special educational needs or the attendance of the child would be
incompatible with the provision of efficient education for the children with
whom he would be educated or the efficient use of resources’. On appeal,
the burden of proving the exception is on the local authority. Where parents
seek to have an academy named, then the Tribunal applies section 9 of the
same Act which provides that the decision maker ‘… 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’. It is a different test, and the local authority is not required to
comply, subject to exceptions, as with maintained schools.
In his evidence to the commission, David Wolfe stated that the legal
rights of pupils to attend academies, and the rights of their parents,
remain confusing (both to parents and to academies), and that legal
recourse is time-consuming.
The Commission heard from judges from First-tier Tribunal Special
Educational Needs and Disability (SEND) that complexity remains,
because of the potential for academies to refer Tribunal decisions to the
Secretary of State. Cases involving pupils transferring from one school
to another are fast-tracked to enable the pupils concerned to start at the
relevant school in the autumn term. However, if applications are made to
the Secretary of State, after Tribunal decisions, this could significantly delay
the final decision. There are consequences for the pupil and, potentially, for
the outcome in that the family might place the child at an alternative school
to avoid the child missing school. In its submission to the Commission, the
ACE raised concerns that in areas where all schools become academies, the
lack of power for local authorities to direct school admissions could leave
vulnerable pupils without a school place for a considerable time.
The Special Educational Consortium (SEC 2012) and other
campaigning groups have consistently urged the government to tighten
regulations on academies. In a meeting of representatives from the
SEC, National Parent Partnership Network, National Deaf Children’s
Society, IPSEA and NASEN, the Commissioners heard that campaigning
and support groups were witnessing a growth in reports from parents
who are either unable to gain access to academies for their children or
who are concerned about the provision in these schools. The following
concernswere raised in the meeting:
• an apparent trend towards not appointing coordinators for
special educational needs (SENCOs)
• a detrimental effect of academisation on the central provision
of services for pupils with SEN by local authorities, with some
specialist units for pupils with low-level disabilities (such as
hearing impairment) cut back; and worries for the future of
these units after 2012/13 when funding for specialist services
willno longer be ring-fenced
• the possible emergence of a population of pupils who cannot
be placed or are placed permanently in alternative provision
academies
4. Admissions
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Unleashing greatness – getting the best from an academised system
74
• academies/chains setting up Free Schools and alternative
provision for their SEN and BESD pupils, so removing them
from the performance data of the original academy; and a
consequent move away from inclusive practices.
Other submissions also alluded to the last concern. For instance,
inwritten evidence to the Commission, UNISON said:
‘The impending introduction of alternative provision academies means
that, in a local area, both schools and Pupil Referral Units could come
under the umbrella of the same academy sponsor or chain. Without proper
safeguards in place, this could lead to protectionism and create perverse
financial incentives to keep pupils in alternative provision (with higher
per-pupil funding rates) rather than integrate them back in to schools.’
There certainly appears to be a trend for alternative provision under the
banner of Free Schools. In 2012 there are three special Free Schools and five
Alternative Provision Free Schools (DfE, 2012p). Of the 113 Free Schools
approved to open from 2013 (as at November 2012), five are special Free
Schools and 13 are Alternative Provision Free Schools (DfE,2012g).
David Braybrook, specialist educational consultant for SEN and
disability, raised several of these concerns in his oral evidence to the
Commission. He reported that while some excellent practice takes place in
some academies that have a thorough understanding of their obligations,
this is not consistent; some academies are extremely poor in terms of dealing
with special educational needs and interpreting their obligations. He also
observed covert practices of steering SEN pupils towards other schools,
along the lines of ‘This school is not for you. Your child would be happier
elsewhere.’
However, the SEN reforms progressing through Parliament are
intended to give parents greater powers.
13
The Coalition’s response to the
SEN Green Paper (May 2012) suggests that parents will not only be given
more say in managing budgets for the provision for their child, but also
that they will have the right to seek a place at any local school, including
academies and Free Schools.
Exclusions
High rates of exclusion have implications for the pupils concerned, as well
as for the local schools that have to admit these pupils. We already know
that pupils with statements of SEN are among the groups most likely to
be excluded, alongside pupils eligible for free school meals, and pupils
from some Black and minority ethnic groups (DCSF, 2009; DfE, 2011c).
There is evidence of significantly higher rates of exclusion within
academies than in local authority maintained schools (NAO, 2010;
DfE, 2011c, DfE, 2012o; Office of the Children’s Commissioner School
13. For further details, see: www.education.gov.uk/inthenews/inthenews/a00209040/
changes-to-sen-support-for-2014.
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57
75
Exclusions Inquiry, 2012
14
). Recent research by the Local Schools Network
(2011) and Anti Academies Alliance (2012) shows that in 2008/09 and
2009/10 academies permanently excluded twice as many pupils as local
authority secondary schools did. There was also a significant gap between
the two for fixed-term exclusions. The DfE’s report (2012) shows that
academies had the highest rate of permanent exclusions; however, in
comparing academies with maintained schools with similar intakes,
the DfE argues that the average permanent exclusion rate for academies
was only slightly higher than for the comparator schools (0.32% and
0.25%respectively).
The Education Act 2011 removes parents’ rights to appeal to an
independent panel against the permanent exclusion of their child from
a school (or an academy). The replacement Independent Review Panels
cannot require a school to reinstate a pupil that the panel judges was
unfairly excluded. Although this move has raised alarm about the erosion
of parents’ rights to appeal,
15
other changes in recent legislation provide
some safeguards. The excluding school/academy now retains responsibility
for the pupil’s academic attainment and attendance, and is required to
commission and pay for alternative provision. Furthermore, academies /
schools will all need to take account of the Equalities duties on the
publicsector.
However, the Commission received evidence of cases of ‘unofficial’
or ‘informal’ exclusions within academies. These echo accusations cited
in the report on school exclusions from the Office of the Children’s
Commissioner (2012). For example, it gives the example of ‘a young
person or their family [who] is “persuaded” to move school – a move
usually sold to the family and the child as an alternative to a permanent
exclusion going on the child’s record.’
16
Agreeing and regulating admission arrangements
With a range of parties involved in setting and administering admissions
arrangements, it is important that the ways of coordinating the
arrangements and dealing with alleged breaches of admissions rules
areeffective.
Admissions Forums
All admission authorities have to consult parents and other admissions
authorities whenever they propose to amend their admission
arrangements (DfE, 2012k).
In addition to these statutory requirements, local authorities have
also historically convened admission forums. These have provided
parents with a forum where they can log complaints about admissions
14. The report of Phase 1 of The Office of the Children’s Commissioner School Exclusions
Inquiry (2012) provides evidence. It explores the effectiveness of the current exclusions system,
including alternative provision, support, and mechanisms for appeals, and identifies concerns
about exclusions in academies.
15. See, for example, the Office of the Children’s Commissioner School Exclusions Inquiry,
2012; also Administrative Justice and Tribunals Council (AJTC), 2011.
16. Such practices, and this quotation from the Children’s Commissioner, apply to schools
in general rather than just academies. However, her report specifically recommends that the
Secretary of State should urgently investigate accusations made to the inquiry ‘regarding some
academies failing to abide by relevant law with regard to exclusions.’
4. Admissions
49
Unleashing greatness – getting the best from an academised system
76
arrangements. Admission forums have had a remit in overseeing the
effectiveness of local admissions arrangements, advising local admissions
authorities on improving their arrangements and abiding by fair practice,
and dealing with difficult admissions issues. Although the 2010 Education
Act removed the requirement for local authorities to convene admissions
forums, many forums continue their work. Their effectiveness, however,
appears to be mixed, perhaps because they now lack formal powers and
because working practices differ across authorities (Noden and West,
2009; Rudd et al., 2010). Despite these reservations, forums were identified
as playing an important role in several areas (Noden and West, 2009).
Critics see the removal of the requirement for local authorities to host
admissions forums as hindering parents’ access to make objections about
admissions. Removing the requirement also appears to present a challenge
to the capacity of the Office of the Schools Adjudicator since it would
have to deal with an increase in complaints about admissions.
17
The
Schools Adjudicator’s 2011 report warns:
‘It seems to be a pity that at a time when the number of admission
authorities is growing, this vehicle that has the potential to improve
arrangements locally is not likely to survive in most LA areas.’
OSA, 2011
The government has extended the right to object to the Schools
Adjudicator to any person or body (see below).
The Schools Adjudicator
Role and remit of the Schools Adjudicator
Schools adjudicators work independently from the Department for Education
but are appointed by the Secretary of State for Education. They are appointed
on their experience and ability to act impartially, independently and objectively.
The school adjudicators’ legal responsibilities include:
•
ruling on objections to schools’ (including academies) or local authorities’
admission arrangements, for pupils entering a school in the September of
the year following the publication of the contested arrangements
•
resolving local disputes regarding statutory proposals for school
reorganisation
•
ruling on appeals from maintained schools against a direction from a local
authority for the school to admit a particular pupil; and
•
resolving disputes on the transfer and disposal of non-playing field land
andassets.
The Chief Schools Adjudicator submits an annual report to the Secretary
ofState on fair access.
Source: The Office of the Schools Adjudicator.
17. See for example submissions from NASUWT and Comprehensive Future.
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77
The School Standards and Framework Act 1998 introduced the Office of
the Schools Adjudicator to resolve local disputes, including those related
to school admissions. Since then, the role of the Schools Adjudicator has
been expanded to include responsibility for adjudicating on the statutory
requirements of the School Admissions Code and to consider the legality
of schools’ admission arrangements. The role of the Schools Adjudicator
is described above.
There are some differences in how directions to a school to admit
apupil and variations to determined admission arrangements are
adjudicated, in line with the remit of the Schools Adjudicator, with
regardtoacademies and maintained schools.
18
First, a local authority is the admission authority for community and
Voluntary Controlled schools in its own area. It has less direct control
over Foundation and Voluntary Aided schools: if a local authority wishes
a maintained school in another LA or a Voluntary Aided or Foundation
school in its own LA or another authority to admit a pupil it must
issue a notice of intention to direct to the admission authority (school)
concerned. The admission authority concerned can then appeal to the
Schools Adjudicator. The decision of the Adjudicator is final.
However, in respect of academies, if a voluntary agreement cannot
be reached between the local authority and the academy admission
authority, the local authority can appeal to the Secretary of State to make
a direction. The Secretary of State is able to consult the Adjudicator but
itis not obliged to do so.
This anomaly was raised in the Schools Adjudicator’s annual report
in 2011 (Office of the Schools Adjudicator, 2011). It argued that all such
applications (including those from academies) should come to the Office
of the Schools Adjudicator (OSA). The current Schools Adjudicator
confirmed in her oral evidence to the Commission that the capacity of
the OSA would not be a problem in considering requests for a variation
to determined arrangements, since there are relatively few annual
applications.The Commission is of the view that it would be better if the
procedures for academies were the same as those for maintained schools
with the Secretary of State having no role in proceedings.
Second, the OSA takes decisions on objections to and referrals about
determined schools admission arrangements for maintained schools and
academies, taking account of any agreed exemptions from the Schools
Admissions Code that an academy may have been granted through its
Funding Agreement. These distinct arrangements risk confusion and the
suspicion of different treatment for maintained schools and academies.
As noted earlier, in 2011 a disproportionate number of objections
to admission arrangements came from academies. In oral and written
evidence submitted to the Commission, concerns were raised about the
Schools Adjudicator’s powers and capacity to investigate such objections
and ensure fair admissions arrangements in an increasingly academised
system, given reduced local authority powers in this area.
The Commissioners were impressed by the capacity of the Office
of the Schools Adjudicator and its development of effective systems.
For example, the provision of local authority reports to the Schools
18. For further information, see: www.education.gov.uk/schoolsadjudicator/about.
The Commission is
of the view that it
would be better if
the procedures for
academies were the
same as those for
maintained schools
with the Secretary
of State having no
role in proceedings
4. Admissions
59
Unleashing greatness – getting the best from an academised system
78
Adjudicator on local admissions and fair access has previously proved
patchy, despite legal requirements for these to be supplied, with only
58% of authorities having done so on time in 2011. This provoked the
disapprobation of the then Schools Adjudicator (Schools Adjudicator
report, 2011). However, asimpler online process has facilitated 100%
publications/returns of local authority reports in the present year (2012).
The Schools Adjudicator told the Commission that the reporting template
is being reviewed and will be revised for 2013 to ensure that relevant
information is covered.
The Commission recommends that academies and maintained schools
be placed on a common footing with regard to local authority directions
to admit pupils. The role of the Secretary of State in this regard should be
ended and all appeals against directions should be heard and determined
by the Office of the Schools Adjudicator. The adjudicator should also be
granted powers to hear complaints against variations and derogations from
the School Admissions Code that the Secretary of State grants to academies.
Appeals and complaints
The Commission considered the routes available to parents within an
increasingly diverse system, including how complaints about the ways
inwhich schools/academies are drawn up and implementing admission
policies are handled, and individual appeals against decisions. Figure 7
illustrates the diversity.
Academy Trust* appoints
independent appeal panel
Parents of pupils appealing
against the offer or non-offer
of a place at a Community or
Voluntary Controlled school
Governing body*
appoints independent
appeal panel
Local authority appoints
independent appeal panel
All appeal appeals constituted and conducted in accordance with
the requirements set out in the School Admission Appeals Code
Parents of pupils appealing
against the offer or non-offer
of a place at a Foundation or
Voluntary Aided school
Parents of pupils appealing
against the offer or non-offer
of a place at an Academy Trust
The Local Government Ombudsman is able to consider a complaint
if a parent thinks that a place at a school was refused because of
some unfairness or mistake by the admissions authority, or if the
appeal was handled incorrectly
Secretary of State is able to
consider whether an appeals
panel was correctly constituted
and whether an admission
authority acted reasonably in
managing the appeals process
Figure 7: Routes of appeal
*The governing bodies of Foundation and Voluntary Aided schools and Academies may ask another body, e.g. the local authority,
to carry out some or all of their admissions functions on their behalf. However, the admission authority remains responsible for
ensuring those functions are carried out properly.
Source: Academies Commission.
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79
Appeals on decisions relating to the admission
ofindividualpupils
As noted earlier, local authorities continue to be responsible for ensuring
every local child has a school place. Therefore, they play a central role in
admissions to maintained schools. However, they are not able to direct
an academy to accept a pupil. Previously, the local authority was the
admission authority for all community and Voluntary Controlled schools
within an area, but recent legislation has created different structures for
appealing against the decisions of academies. Parents have the right to
appeal against decisions made by an admission authority to refuse their
child a place. Responsibility for making arrangements for appeals against
the refusal of a school place rests with the admission authority of the
school – which in the case of an academy will be the academy trust and
not thelocal authority.
19
The admission authority must appoint an independent panel to hear
appeals and decide whether to uphold or dismiss an appeal. These are run
as quasi-independent bodies. In the case of local authority panels, such
panels are supported by a local authority’s appeals service which recruits,
trains, and supports the panel, including providing a clerk. Different local
authority staff (the admissions team) present evidence to the panel on
behalf of the authority, with the parents and their representatives having
achance to respond.
In the case of an academy, where the trust rejects the appeal, the next
step is for the parents to take the appeal to the academy’s independent
appeals panel. Both local authority and academy panels have to follow
the rules and procedures for establishing such panels and conducting the
appeals process, as set out in the School Admission Appeals Code (DfE,
2012j). However, given that many of these panels deal only with a single
academy, questions may be raised about the extent of their experience and
competence. Community schools converting to academy status will be
taking on this function for the first time. Assessing local authority reports
to the Schools Adjudicator, the Schools Adjudicator’s annual report
(2011) made the following observation (see also SOLACE, 2012):
‘As more and more schools become their own admission authorities, an
increasing proportion of LAs consider that they lack the information
needed to monitor compliance of ‘independent’ panels, and to carry out
their responsibilities as champions of the pupils and parents within their
communities. Many LAs believe that if they are to act as the champions
of local children and parents then they should have the powers to monitor
these panels, without of course compromising their independence.’
In terms of avenues of redress if an appeal hearing is unsuccessful,
differences between maintained schools and academies are significant.
In the case of maintained schools (which include Foundation
and Voluntary Aided schools as well as community and Voluntary
Controlled schools), parents can take their case to the Local Government
Ombudsman (LGO). The LGO can address complaints about appeals
processes and the practices of admissions appeals panels. This extends
19. Foundation and Voluntary Aided schools are also responsible for their own appeals.
4. Admissions
Documents you may be interested
Documents you may be interested
