Authors:Angela Jackman KC (Hon) and Eleanor Wright
Last updated:2023-10-03
Education law rights: a shifting picture
Marc Bloomfield
Description: LAG 50 Years
Angela Jackman KC (Hon) and Eleanor Wright started working together not long before they began writing for Legal Action nearly 20 years ago, and have seen many changes in education law over that period, largely but not entirely reflecting political and economic developments. Here, they summarise some of the main developments in the field over that time.
Special educational needs
Description: Education recent developments Angela Jackman_ Pat Wilkins and Eleanor Wright Mar...
This is the area that has perhaps seen the most change. The Education Act 1996 refined the system of school support for special educational needs and disability (SEND) and the statementing system, but had a number of defects, leading to the reforms through the Children and Families Act (CFA) 2014. In theory, the basis of the reforms was a recognition that learning difficulties do not exist in an education silo but are generally intricately tied in with health and social care needs, leading to the replacement of statements with education, health and care plans (EHCPs). However, in practice, health and social care aspects have generally not been adequately or fully dealt with in EHCPs, although there has been a slight improvement since the First-tier Tribunal (Special Educational Needs and Disability) began using (initially on a trial basis, and substantively since 2021) a power to consider and make recommendations on those aspects of EHCPs.
A further major benefit of the CFA 2014 arose when support was extended from a system that did not apply to further education colleges or to anyone over the age of 19 to one covering children and young people from 0–25 years old, with young people (with capacity) over the age of 16 having the right to make decisions about their educational support. The current law has its defects, but it is generally accepted among practitioners that it would be workable if properly funded and with full accountability. There have, however, been widespread problems arising primarily from systemic failures to comply with the law, particularly with regard to time limits, writing sufficiently specified and detailed provision into EHCPs, and in ensuring that provision is actually delivered, including an adequate supply of specialist placements. This is substantially due to inadequate funding, but it is not clear whether the government recognises this; recent green paper proposals1SEND Review: right support, right place, right time, CP 624, March 2022. for reform focus instead on imposing ‘national standards’ with little or no indication of how this will remedy current problems and ensure that very necessary help is given to children and young people with SEND. At the time of writing, we await further developments.
Legal aid
Unsurprisingly, one of the main changes for the worse has been in relation to legal aid. When we began working together in this area, a number of specialist firms had legal aid contracts with hourly rates and supervision regimes that were workable although not generous. A telephone advice system was created alongside this but was only taken up by two firms, and other contracts followed the pattern seen elsewhere: the imposition of fixed fees; tightening of financial eligibility criteria; hourly rates remaining unchanged or being reduced; and fairly onerous compliance requirements.
This all changed in 2012 with the Legal Aid, Sentencing and Punishment of Offenders Act 2012, under which it was ordained that work could only be done through the telephone advice system, and some areas of education work (particularly education negligence claims, and school exclusions and admissions challenges) were taken out of scope. Unsuccessful attempts were made to widen the pool of firms offering telephone advice. More recently, some limited legal aid contracts have been granted, but this coincided with one of the major telephone advice providers deciding not to retender and the Ministry of Justice has not been able to find a full replacement. The reality is that it is simply not viable to offer legal aid work in education without a separate source of funding, and the limited number of people who qualify for legal aid are finding it increasingly difficult to locate a firm able to take on their cases.
Education negligence
Description: Education recent developments Tony Hyams-Parish Sep 1998
Education negligence claims reached their high point with Phelps v Hillingdon LBC [1999] 1 WLR 500, when Ms Phelps won her claim for failure to recognise and provide for dyslexia. However, case law since then shows a fairly rapid succession of unsuccessful claims. Practitioners have found it increasingly difficult to bring claims to a successful conclusion due to a combination of expense and difficulty in obtaining and examining evidence, demonstrating negligence and causation, establishing what was or was not consequential loss, and arguments around contributory negligence and failure to mitigate loss. Such claims have now, in effect. stopped: legal aid is not available for them, insurers are unlikely to be prepared to underwrite the fairly high risks involved, and solicitors will not accept them on a contingency fee basis. While this is understandable, it is a pity that this has removed a further element of accountability for negligence.
Arguably, the extension of academisation and the underlying ethos are reflected in some key government policies, legislation and guidance. Should local authorities have a central role in providing education or not?
The Academies Act 2010 facilitates publicly-funded schools in England to convert to academy status, with the attractions of having more autonomy than their maintained counterparts, greater investment of capital and a free market environment, enabling industries to invest and thus influence the curriculums and pupils’ futures. This also encouraged some parents to set up Free Schools with their own admissions criteria. While this may all sound very positive to some, others have been concerned that too much power is handed over to principals and the safeguard of local authority oversight is lost due to a lack of transparency.
In a 2012 reported Upper Tribunal (UT) appeal, parents successfully challenged Mossbourne Community Academy’s refusal to admit a gifted child with a statement of special educational needs in Dr SC v Hackney LBC [2012] UKUT 214 (AAC). The academy’s position was that it already had a high number of pupils with special educational needs and it could not be forced to admit another, by virtue of its status. The First-tier Tribunal decided that it did not have jurisdiction due to the independent nature of the school, but the UT decided otherwise.
Teacher power?
An ongoing issue subject to political and public debate is whether the correct balance has been struck between teachers being able to maintain discipline in schools, on the one hand, and the rights of children and their parents, on the other. Teaching unions traditionally advocate for increased teacher powers to maintain discipline. The political nature of the debate and competing concerns have been highlighted in a string of cases such as Re L (a minor) [2003] UKHL 9, when teaching unions threatened strike action if pupils were reinstated following successful exclusion appeals. The court decided that it was lawful for pupils to be segregated in those circumstances.
League tables have pitted schools against each other, and had an impact on attendance, appearance and discipline policies. Over the past 20 years, this has led to greater focus on schools being able to remove children from class on these grounds, arguably to the detriment of pupils when an incorrect balance is struck. G v Head Teacher and Governors of St Gregory’s Catholic Science College [2011] EWHC 1452 (Admin); December 2011 Legal Action 38 was an example of an inflexible, culturally insensitive appearance policy. The High Court decision resulted in a review of the policy by the school as it was held to lead to indirect race discrimination.
Description: Education law training ad Mar 2002
What has been stark is the erosion of young people’s rights in the exclusions framework. In 2003, when we started these updates, a pupil who was permanently excluded from school could seek a review by the governors and subsequently appeal to the then independent appeal panel (IAP). If successful, they could obtain a binding decision from the IAP directing their reinstatement. However, Education Act 2002 s51A(4) replaced the IAP with the independent review panel (IRP), which can no longer directly reinstate. Its maximum power only enables it to quash the decision of the responsible body and direct it to reconsider the matter. While there are potential punitive financial sanctions against a governing body for not following the direction, this does not provide an effective remedy where the IRP effectively overturns the permanent exclusion and the pupil wishes to return to the school.
Other concerning practices have been the increased use of internal exclusion and the use of isolation booths in schools. A judicial review was brought against the Outwood Grange Academies Trust in 2018, which resulted in the academy reviewing its practices. However, many schools still use isolation booths. The new behaviour guidance,2See page 30 of this issue. which came into effect on 1 September 2022, makes it clear that this should be a last resort in terms of internal discipline, and places a requirement on governing bodies to collect, monitor and analyse data on removal (previously referred to as isolation) so that they can identify and address repeat patterns.
Exclusion of disabled students
Arguably, more measures are also required to stop the misuse of exclusion for disabled pupils and those with unmet special educational needs. Pupils in this category are between two and five times more likely to be permanently excluded, and recent changes in the exclusions guidance3As footnote 2, above. do not seem likely to make a substantial difference. The UT determined in C and C v Governing Body of A School [2018] UKUT 269 (AAC); November 2018 Legal Action 27 that a child with autism who had a tendency to physical abuse was protected under the Equality Act 2010, and exclusion on account of his behaviour was unlawful.
Gains and losses over two decades
Description: Education law and practice Jun 1986
There have inevitably been numerous statutory, case law and policy developments over the past 20 years. Not all of these have been favourable to young people and their parents, particularly legal aid cuts and the ongoing national underfunding of special educational needs provision. Equally, the restructuring of appeals against permanent exclusions has led many to feel that they are not afforded an effective remedy. However, there have also been significant gains such as extending the SEND framework so that it now covers 0–25 year olds. Parents’ increased awareness of the range of available remedies in education law has also been a welcome development, assisted by a number of committed local and national charities.
Thank you
Description: Education law book covers
LAG is so grateful to Angela Jackman KC (Hon) and Eleanor Wright for their enormous commitment to sharing knowledge on education law and practice in Legal Action over the past 20 years, as well as their contribution to LAG training courses and events. Other names to mention include the author of the very first ‘Recent developments in education law’ series, which started in 1998, Tony Hyams-Parish (now HHJ Hyams-Parish), and Angela’s and Eleanor’s original co-author, Pat Wilkins. An early prolific writer for the magazine on education issues was Neville Harris. David Ruebain trained for LAG and also co-wrote LAG’s 1999 Education Law and Practice with John Ford and Mary Hughes. More recent books include Special educational needs and disability discrimination in schools: a legal handbook, by Sarah Hannett, Aileen McColgan and Elizabeth Prochaska, and Disabled children: a legal handbook, which includes education issues, by Steve Broach and Luke Clements, now in its 3rd edition. This is not an exhaustive list – we thank everyone above and anyone else who has contributed to LAG’s events, training and publishing in education law over our long history.
LAG Education Law Conference
LAG’s sold-out inaugural Education Law Conference, sponsored by Garden Court Chambers, took place on 12 October at 1 Lady Hale Gate. We Belong’s founder and CEO, Chrisann Jarrett, gave the keynote speech, and delegates heard from a wide range of other speakers, including Eleanor. Special thanks to Ollie Persey of Garden Court Chambers for his work on the event. We hope it’s the first of many to come!
2     See page 30 of this issue. »
3     As footnote 2, above. »