| IPSEA Independent Panel for Special Education Advice | Defending children’s right to special education provision | |
IPSEA complaint upheld -- Birmingham parents' rights restored |
The two complaints detailed below are about incorrect procedures used by an LEA for the transfer of children with statements from primary to secondary school. In November 2001 IPSEA became extremely concerned about one aspect of the policy being operated by Birmingham LEA concerning children with statements of special educational needs transferring from primary to secondary school. The policy used a technicality to rob parents of children with Statements of Special Educational Needs of their right of appeal to the Special Educational Needs Tribunal against the kind and amount of support their child would be entitled to receive at their new secondary school. IPSEA believed the policy to be unlawful but we were unable to persuade the LEA to our way of thinking. IPSEA had to make a formal complaint to the Secretary of State. The Secretary of State has now (20 January 2002) ruled that the policy is unlawful, and has asked Birmingham to put into place the proper procedures immediately. However, Birmingham uses another primary-secondary policy which is also prejudicial to the rights of children with statements, that of using the same admissions procedures for children with statements as for those without. On this issue, IPSEA has an outstanding complaint.
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The Secretary of State's ruling |
Letter to IPSEA from the Department of Education and Skills20 January 2003 Dear Mr Wright FORMAL COMPLAINT BY IPSEA AGAINST BIRMINGHAM CITY EDUCATION AUTHORITY I am writing further to my colleague, Sue Mackenzie's letter of 17 December following the complaint made by IPSEA against Birmingham City Education Authority. The Department has fully investigated the matter under sections 496, 497 and 497a of the Education Act 1996 and it appears that Birmingham LEA is failing to comply with its statutory duty to amend statements of children in respect of phase transfers, as set out in Schedule 27 and the Education (Special Educational Needs) (England) Regulations 2001. I enclose for your information a copy of the Department's letter to the Chief Education Officer, Tony Howells, informing him that the Secretary of State is minded to make an order on under section 497 of the Education Act 1996 unless the Authority confirms within 5 day that they will adopt their procedures in accordance with the above Regulations. We will write to you again when we receive their response. Yours sincerely Eileen Strevens Letter to Birmingham LEA from the Department of Education and Skills20 January 2003 Dear Mr Howell FORMAL COMPLAINT BY IPSEA AGAINST BIRMINGHAM CITY COUNCIL UNDER SECTIONS 496 & 497 OF THE EDUCATION ACT 1996 I am writing further to our earlier correspondence in relation to the above complaint and I note your response of 6 January 2003, to our letter of 13 December 2002. As I explained in that letter, the Department is of the view that the procedure for handling amendment of statements at the phase transfer stage is covered by paragraphs 2A, 2B and 6 of Schedule 27 of the 1996 Act, and the Education (Special Educational Needs) (England (Consolidation) Regulations 2001. Regulation 19 provides that: "an authority must ensure that the child's statement is amended so that before 15 February in the calendar year of the child's transfer, the statement names the school or other institution which the child will be attending following that transfer' It is therefore the local education authority's responsibility to amend the child's statement reflect the name of the new school. I also pointed out to you in my letter of 13 December that when sending a copy of the proposed amended statement to the parent with the name of the new school, the LEA must also send out the accompanying notice in the mandatory form set out in Part B of Schedule 1 to the Regulations, i.e. the notice accompanying a copy of a proposed amended statement served under paragraph 2A(4) of Schedule 27 (see regulation 15 and paragraph 9:43 of the Special Educational Needs Code of Practice to which LEAs must have regard). That standard letter makes it clear that parents have a right to appeal against all aspects of the statement at the stage of phase transfer, as provided for by section 326(1) of the Education Act 1996, not just the name of the school in part 4. As I explained in my letter of 13 December, paragraph 8 of Schedule 27 is not applicable to phase transfers as it only applies where a parent makes a specific request for the child's statement to be amended, to specify the name of a maintained school. Under sections 496, 497 and 497A of the Education Act 1996, the Secretary of State has various powers to issue directions to a governing body or LEA. Under section 496, the Secretary of State may issue a direction if he is satisfied that a governing body or LEA has acted unreasonably in the exercise of a statutory duty or power. Under section 497, the Secretary of State may issue a direction if he is satisfied that a governing body or LEA has failed to discharge a statutory duty. The Secretary of State's power under section 497A concerns his power to act against an LEA that is failing to perform an educational function adequately or at all. In reaching his decision, the Secretary of State has considered this matter in the context of his powers under these sections. In this case, it appears to the Secretary of State that Birmingham LEA is failing to comply with its statutory duty to amend statements of children in respect of phase transfers, as set out in Schedule 27 and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. Accordingly, the Secretary of State is minded to make an order under section 497, declaring Birmingham LEA to be in default in respect of that duty and directing Birmingham LEA to follow the correct statutory procedures with immediate effect in order to enforce the performance of the duty. Please confirm by return, and in any event no later than 5 days from the date of this letter, that the LEA will, with immediate effect, adopt the procedures set out above in relation to children with statements at the phase transfer stage. You will appreciate the necessity of an urgent reply to this letter, given that the process for handling such phase transfers will already be under way. I am copying this letter to Mr M F N Ahmed, Chief Legal Officer at Birmingham City Council, Chrissie Garrett, Acting Assistant Director - SEN, and to IPSEA. A W KIRWAN |
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The second complaint |
Letter to Birmingham LEA from Brendan King of IPSEA3rd December 2002 Dear Mr Gailbraith In advising parents of Birmingham children with statements of special educational needs for several years a constant complaint has been over secondary transfer procedures. A particular complaint is the requirement to follow general secondary school admissions procedures involving listing 5 preferred schools and accepting the criteria for admission set down by those schools and the LEA for non-statemented children, and appealing to the local appeal panel if dissatisfied with placement. Having gone through these procedures, parents get confused and angry when they find there is an entirely separate set of statutory procedures for statemented children and set down within the SEN Code of Practice. This involves the need only to make one preference in choice of school which must be complied with unless the placement is inappropriate for the special needs of the child, or inefficient in the education of the children with whom the child will be educated or in the use of the LEAs resources - conditions which the LEA must demonstrate as being reasons of substance. Also, appeals are only to the Special Educational Needs and Disability Tribunal. I am advising parents that Birmingham's policy requiring them to follow the procedures for non-statemented children, in addition to statemented children's procedures, is possibly unlawful and certainly in violation of Annex A of the Code of Practice on School Admissions. This leaves the Authority liable to complaint from aggrieved parents either to the Secretary of State for Education, for unlawful or unreasonable behaviour, or to the Local Authority Ombudsman for maladministration. On behalf of IPSEA I seek an assurance that in future Birmingham LEA will only require parents of statemented children at secondary transfer to follow procedures as laid down under Section 324 onwards and Schedule 27 of the Education Act 1996. If this assurance is not forthcoming within the next 12 working days further action will be considered on behalf of the many Birmingham parents who have contacted us on this matter. I attach the relevant sections of the Annex to the Code of Practice on School Admissions upon which I am relying. Yours sincerely Brendan King (IPSEA) cc Tony Howells (Chief Education Officer) ANNEX ASCHOOL ADMISSIONS: THE LAWA.1 This Annex describes the primary legislation, Regulations and case law most relevant to admissions decisions. Admission authorities, adjudicators, appeal panels, local education authorities and schools need of course to comply with the relevant law as well as to have regard to the Code's guidance. This Annex aims to signpost the applicable law. It does not aim to provide definitive guidance on interpreting the law: that is for the courts. Pupils with statements of special educational needs A.75 If a child has a statement of special educational needs maintained by an LEA, that LEA is responsible for arranging that the special educational provision is made for the child, and considering the school's suitability in finalising the statement or following an annual review. If the parent of a child with a statement of special educational needs wishes to appeal against the school named in the statement, or the fact that no school has been named, the appeal is to the special educational needs Tribunal, not to the local appeal panel. Where a school is named in the statement of special educational needs, the governing body has a duty to admit the child to the school. Further guidance on this is given in the special educational needs Code of Practice. |
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