Battle over admission of child with SEN to academies heads for Upper Tribunal

The parents of a gifted 11-year-old boy with cerebral palsy have launched a groundbreaking legal challenge against a high-profile academy over its refusal to offer him a place.

Law firm Maxwell Gillott, which is acting for the parents, said in a statement on its website that Mossbourne Academy had refused on the grounds that his admission “would be incompatible with the efficient education of other children in the school”.

It claimed that the academy had also refused to accept that the Special Educational Needs Tribunal should hear the case, on the basis that the school was not governed by the relevant legislation but by its own funding agreement with the Secretary of State.

The law firm claimed that Mossbourne had “similarly refused to take other children with statements of special educational needs”.

Maxwell Gillott said the academy, through the Learning Trust for Hackney that runs education services in the area, had successfully applied to have their appeals struck out on the basis that the Tribunal had no jurisdiction over the academy “and may not over academies generally”.

The other cases are on hold until the decision of the Upper Tribunal.

Maxwell Gillott said the boy’s cerebral palsy really only affected his ability to get around the school at busy times. “The only real additional provision he needs is a bit of support during these times to make sure he is safe,” it added.

The boy has already achieved an A* at GCSE Maths at the age of 11, which Maxwell Gillott said showed he had no problem keeping up with lessons. His parents would provide him with the appropriate IT.

Maxwell Gillott said: “Our major concern with the whole academy system is that in many cases academies are able to operate outside the laws that apply to all local authority schools.

“Although the Government has attempted to deal with this through the funding agreements they have with the new academies, there are still a considerable number of these schools which do not follow all the requirements which normally apply to children with special educational needs.”

The firm added that what was “particularly difficult” in this case was that the parents were not allowed to appeal against the school admission process as their son has a statement which means the school he attends should be decided by the Special Educational Needs Tribunal.

“At the same time they have tried to ensure that the Tribunal is also not able to hear the case, leaving disabled children with statements in a worse position than anyone else if they want a place at an academy,” it said.

The Independent Parental Special Education Advice (IPSEA) service said that it had received repeated reassurances from the Government “over many years” that parents of statemented children had the same right to obtain a place at an academy as they do if they wanted a maintained school place.

It said it had also received assurances that parents could appeal to the Special Educational Needs and Disability Tribunal to obtain a place if an academy refuses their child.

“For a long time political fudges have kept this situation from becoming an issue: academies have accepted that Tribunals can hear appeals about them, and have rolled over when decisions have gone against them,” IPSEA, which is supporting the parents in the case being brought by Maxwell Gillott, said.

“But now the sticking-plaster has come off: Mossbourne, one of the older academies and a flagship for the Government’s policy, has refused to be named in nine children’s statements, the children’s local authority supports the Academy’s position, and the Tribunal has decided it cannot hear appeals to challenge the refusal to admit them.”

IPSEA said the Upper Tribunal case would test whether the Tribunal can hear the appeals, whether it can order the local authority to name the academy, and whether that would force the academy to accept the children.

“This is a case of enormous consequence for parents of statemented children, especially in areas where most secondary schools have become or are becoming academies, or where the only suitable school is an academy,” it said.

A Learning Trust for Hackney spokesperson told The Guardian it would not comment on cases of this kind as a matter of policy. “Depending on the terms of the funding agreement between an academy and the secretary of state, the academy may not have to admit a child even if the school is named in the child's statement. The Department for Education can provide further information regarding the funding agreements between academies and the Secretary of State."

Philip Hoult