Case overview

This case was about whether a specific setting referred to as a “unit” was in fact a “school”. A child’s parents appealed to the Upper Tribunal (UT) against a decision made by the SEND Tribunal to name “GROW Project at the WH Academy” in their child’s Statement of Special Educational Needs (this was an earlier version of an education, health and care (EHC) plan). The parents argued that if GROW was not a school in its own right, the SEND Tribunal should not have ordered it to be named.

The UT considered whether GROW was a school within the meaning of section 4 Education Act 1996 – in other words, was it an “educational institution”, that’s not a college or in the higher education sector, providing primary and/or secondary education? The parents’ representative argued it was not for several reasons, including it not being

• registered as a school
• having a permanent site or
• Ofsted inspected.

They also raised its governance structure and that GROW had never been referred to as a school. The UT said that the points the parent’s representative raised were helpful factors to consider but didn’t amount to a tick box exercise.

The UT decided GROW was a school. The reasons for this decision included that

• GROW was an initiative between a partnership of Academies and the LA, funded by the LA
• it had a management committee which was accountable to the LA
• pupils were referred to GROW from schools
• it had six pupils (three full time and three part time) some of whom were not registered at the Academy
• pupils attended GROW as their school and were integrated with the Academy pupils for PE and breaks, and wore the same uniform
• GROW’s function was to reintegrate pupils into mainstream education
• pupils from the Academy would go to GROW once a week for additional provision and to provide a peer group for GROW pupils
• it offered the National Curriculum

GROW not having its own premises wasn’t significant as it was funded and closely monitored by the LA.

GROW fit within the definition of a school so it didn’t matter that it didn’t fall within a recognised category or type of school, although the UT noted it looked a lot like a pupil referral unit (which is a type of school).

What does this mean?

Whether an institution is a school under section 4 Education Act 1996 involves

• deciding if it is an “educational institution” providing primary and/or secondary education that’s not a college or in the higher education sector
• “institution” commonly means “an establishment or organisation”, educational establishment indicates formality of structure and
• the various factors, including the above, are relevant in considering whether a setting fits the definition and is a school.

Something referred to as a “unit” which is located on a school site, but not part of the school itself, is capable of being a school in its own right, depending on all the facts. However, the majority of units are part of the mainstream school at which they are based rather than separate schools, like in this other case about whether a unit was in fact a school.

The full report for TB v Essex CC [2013] UKUT 534 (AAC) [2014] ELR 46 is available online.

For further information, see our pages on choosing a school with an EHC plan.