Special Educational Needs (SEN) has come under the spotlight recently, with some Academies reluctant to admit a child even if it is named in Part 4 of the child’s Statement of SEN. Is this lawful?

Broadly speaking, for newer Academies (formed after the Academies Act 2010 came into force) there will be a clause in the contract between the Academy and the Secretary of State, setting out that the Academy must admit a child if a Local Authority names that Academy in a Statement of SEN. The only exception to that is if the Academy is able to successfully argue that admitting the child would be incompatible with the provision of efficient education for other children. This would be assessed on a case-by-case basis, however it would normally be difficult for an Academy to argue this successfully. There will also normally be a clause which outlines that an Academy must admit a child if a Tribunal names that Academy in the Statement.

For older Academies (formed before the Academies Act 2010 came into force) it is unlikely that a clause concerning this will be contained in the contract with the Secretary of State. This issue is currently being litigated in a case called SC v The Learning Trust (SEN). In this case, the Academy refused to admit a child on the grounds that his admission would be incompatible with the efficient education of other children in the school.  It was also argued that a decision of the Tribunal would not be binding on the Academy in any event. The case is still in the hands of the Tribunal, however the Upper Tribunal has indicated that:-

• if an Academy was named in a child’s Statement by the Tribunal the Academy would have a public law duty to re-consider its position in light of that Tribunal decision, and it would be “irresponsible and irrational” not to do so; and
• the position of an Academy is “totally different” from an independent school, which can choose to admit a child on its own terms. For the purposes of SEN, an Academy’s position is more akin to a maintained school.

Although a final judgement is yet to be given on this case, it is good news for parents.

If an Academy is named at Part 4 of your child’s Statement of SEN and the Academy refuses to admit your child, then please do contact us to discuss your case in more detail. We can assist by challenging the Academy by way of Judicial Review, where appropriate. Legal Aid is available for such cases, and is assessed on the child’s means.  We also specialise in SEN Tribunal appeals, so if you have any queries about your child’s Statement then please do get in touch.

Amy O’Connor, Solicitor

0121 212 7478

amy.oconnor@anthonycollins.com

Cheryl McLeish, Solicitor

0121 214 3590

cheryl.mcleish@anthonycollins.com