"It Does What It Says On The Tin"

The Deadline for Amended Statements of Special Educational Needs in Phase Transfer Cases (1)

Douglas Silas

Principal of Douglas Silas Solicitors (2)

 

Introduction

This article analyses the recent case of R (M) v East Sussex County Council (3), and considers the interpretation that now needs to be applied to the regulations applicable to phase transfers (ie transfers between phases of their schooling) in relation to children with statements of special educational needs. It also considers the potential implications of the decision for the drafting of statements. It evaluates the current statutory timetable for phase transfer cases and argues that the current deadline of 15 February in the academic year before transfer be brought back by 3 months to 15 November.

Some say that a decision such as this was a long time coming. It was thought that everyone was already aware that statements were always required to name not only a school but to identify a type of school (eg mainstream/special, primary/secondary). It was also thought that everyone was aware of the changes to the law a few years ago requiring statements to be amended ahead of a child’s ‘phase transfer’ (eg primary to secondary) by no later than 15 February in the academic year before transfer (see below).

The author is not sure whether or not the potentially far-reaching implications of the judgment of Timothy Brennan QC (sitting as a deputy High Court judge) in R (M) have yet been circulated to or understood by those people involved personally or professionally with the education of children who have statements of special educational needs (statements). In essence, the case was brought in order to clarify that reg 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (4) mandated local education authorities (LEAs) to amend statements for children with special educational needs no later than 15 February of the academic year before their phase transfer. The 15 February deadline was legislated for, among other things, having regard to appeals to the Special Educational Needs and Disability (SEND) Tribunal (the tribunal) where parents disputed the contents of the statement. The issue would be primarily the school or other placement named in Part 4 of that statement, but also, by virtue of there being an amendment made to the statement, in respect of Parts 2 and 3, in relation to special educational needs and special educational provision. The aim was that the appeal could be heard before the start of the new school year (5).

Regulation 19

Regulation 19, which relates to a phase transfer, applies (reg 19(1)) where:

‘(a)  a statement is maintained for a child, and
(b)   the child is within twelve calendar months of a transfer between phases of his schooling.’

The regulation states that:

‘(2)  In this regulation a transfer between phases of schooling means a transfer from—

[(aa) infant school to junior school;
(ab)  primary school to middle school;] (6)
(b) primary school to secondary school;
(c)    middle school to secondary school, or
(d)   secondary school to an institution specified in section 2(2A) of the Act.’

The requirement concerning the date is as follows:

‘(3)  Where this Regulation applies an authority must ensure that the child’s statement is amended so that before 15th 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.’

Prior to the introduction of the Regulations some LEAs were either not amending statements ahead of phase transfer or if they were doing so, were only amending statements at the last minute (eg in June or July). In this way, parents would either not get a right of appeal, or, any appeal right that they did have theoretically was by then practically meaningless (or prejudicial). This was because any appeal hearing would then only be able to take place after the start of the new academic year, by which time the child had already (or was meant to have already) changed school. To rectify this reg 19 was introduced and prescribed the deadline of 15 February of the academic year before transfer for statements to be amended ahead of phase transfer.

The reason given for choosing 15 February, it is understood anecdotally, was that (according to the then President of the tribunal) (7) there would be sufficient time for parents to lodge an appeal (8), which should then, theoretically, provide sufficient time for the tribunal to have the appeal listed for hearing before the end of the current academic year in July. Accordingly, the tribunal would then be able to resolve the question of where the child should attend school before the new academic year started in September. (The tribunal does not normally sit in August.) (9)

R (M), however, highlighted a practical flaw in the system.

Background to the case

The background to the case is important. M was the mother of C, an 11-year-old boy who had been diagnosed as having Duane’s syndrome (damaged cranial nerve); an autistic spectrum disorder; speech, language and communication difficulties; other learning difficulties; fine and gross motor difficulties; and a susceptibility to sensory overload. C had been the subject of a statement since 2002, which initially named a mainstream nursery school and then later a mainstream infant/primary school with the provision of additional support. It soon became clear though to everyone that C’s needs could not be met in mainstream, and it was agreed by all that he should attend specialist provision from September 2005. Accordingly, C’s statement was amended to name a special school. The LEA named one of its own maintained special schools, the GP School. M and her husband disputed the appropriateness of the GP School to meet C’s needs. They wanted the LEA to name the SM Special School, a non-maintained special school which, they argued, could provide C with more specialist educational and therapeutic support. In March 2006, the tribunal heard an appeal brought by M and her husband with the assistance of an education solicitor challenging the contents of an amended statement issued for C, seeking amendments to Parts 2 and 3, but primarily to Part 4 of C’s statement.

Although the tribunal agreed to make extensive amendments to Parts 2 and 3, it rejected the appeal in relation to Part 4. This was on the basis that it was persuaded by the evidence given by the LEA (primarily through oral evidence at the hearing) that the GP School should be able to meet C’s needs and make the provision required in Parts 2 and 3 of the statement, as amended by the tribunal. Since there was currently a vacancy at the GP School, which was funded on a place-led basis and it was argued that there were little or no additional costs to the LEA for placing C there, the tribunal felt bound by the Court of Appeal’s judgment in Oxfordshire County Council v GB and Others (10). Since the cost of placing C at SM School as a day pupil would amount to well over £20,000 per annum plus transport, the tribunal held that placing C at SM School would amount to ‘unreasonable public expenditure’ (11).

M and her husband felt that they had come to the end of the road. Although they had major concerns about what they felt to be misleading oral evidence given by the LEA at the hearing and regarding the factual findings of the tribunal in its decision, they sought alternative legal advice, but were advised that they had no strong legal grounds to appeal to the High Court against the tribunal’s decision. Accordingly, M and her husband decided that they had no choice but to place C at GP School, which they duly did shortly afterwards.

Within just a few weeks of placing C at GP School, it became evident to M and her husband that the school was clearly unable to make all of the provision that the LEA had informed the tribunal it could (and would) provide to C - in particular in relation to occupational therapy and being able to provide an appropriate environment and peer group. M and her husband, therefore, quickly removed C from GP School and arranged for him to start at SM School in July 2006 at the end of year 4 on a privately funded basis. At the time of the High Court hearing, C had remained at SM School since that time, making slow but steady progress. The LEA was aware of C’s move from GP to SM School and did not seek to challenge the appropriateness of SM School in any way. However, they refused to amend C’s statement to reflect the fact that he was attending SM School at parental expense, or to make any of the amendments to Parts 2 and 3 of the statement as recommended in the reports of the annual review meetings held in 2007 and 2008.

M and her husband approached another solicitor (the writer of this article) in January 2008 to see whether any further steps could be taken to enable them to challenge the LEA. They were advised that there was nothing that could be done at that stage, but were told that since C was by then already in year 5, and moving to year 6 in September 2008 (and thereby by definition moving to secondary school/year 7 in September 2009) the LEA would be required to amend C’s statement by 15 February 2009, in accordance with the phase transfer provisions. This would then provide them with a further right of appeal to the tribunal against the contents of the amended statement, allowing M and her husband to again appeal for SM School to be named in C’s statement at secondary level.

It was expected that the amended statement should be issued to them by 15 February 2009; and therefore, that their appeal could be lodged within a month or so, with the intention of ensuring that their appeal was then listed for hearing by the tribunal by the end of July 2009 (expedited if necessary). This would resolve the question of where C should be placed at secondary transfer from September 2009.

M and her husband had anticipated that the LEA would not amend C’s statement substantively and would again name the GP School at secondary level. This was because it was an ‘all-through’ special school which was registered to take pupils at both primary and secondary level as a legal entity, although the primary and secondary parts of the school were located on different physical sites. The LEA invited M and her husband to express a preference for a secondary school for C by way of a standard letter sent to them in September 2008 together with an application form for them to complete. M and her husband sent back the completed form with a detailed letter outlining the reasons why they were again seeking a placement for C at SM School at secondary level, which the LEA then indicated would be considered by their special educational needs panel by the end of November 2008.

In November 2008, M and her husband received a letter from their caseworker at the LEA informing them that the special educational needs panel had now considered their request but had concluded that C’s needs could continue to be met at GP School and would, therefore, refuse to comply with their preference for SM School. Given the fact that M and her husband had been advised that the LEA was required to serve an amendment notice or amended proposed statement prior to finalising an amended statement for C no later than 15 February 2009 (and given that an LEA has only 8 weeks to finalise any proposed amendment) (12) M and her husband had expected to receive something from the LEA by around the middle of December 2008.

Parental concerns

By January 2009, M and her husband had still not received anything. On re-reading the LEA’s letter to them of November 2008 they became concerned that it could be interpreted as suggesting that the LEA would not only again name the GP School for C at secondary transfer, but was not even going to amend C’s statement (or at least re-issue it) by 15 February 2009 which would give them a right of appeal.

M and her husband wrote urgently (through their solicitor) to the Director of Children’s Services by fax on 16 January 2009. In their letter they pointed to the phase transfer provisions and the LEA’s mandatory duty to amend C’s statement ahead of his secondary transfer. Any failure would not only breach a statutory duty but would consequently deny M and her husband their right of appeal to the tribunal against the contents of the statement. They sought an urgent assurance that the LEA would issue an amended statement for C by 15 February 2009 so that they could then exercise this right. The letter requested a response within 7 days. But despite chasing on numerous occasions there was no substantive response. It therefore became necessary for their solicitor to send a very urgent letter (again by fax), on 5 February 2009, stating that a response was now required by close of business the next day. A response was finally received by fax just before 5pm the next day on 6 February 2009 (a Friday).

In a few short paragraphs the LEA’s solicitor stated that, as the LEA was of the view that C could continue to attend GP School at secondary phase, there was no legal requirement on the LEA to amend C’s statement. The letter added that the LEA was not of the view that this would in any way breach a statutory duty or deny M and her husband their right of appeal.

M’s solicitor had also written to the tribunal on 5 February 2009 asking if they would be willing to register any appeal looking to be lodged by M and her husband, without the formal letter sent to them by the LEA giving them their statutory right to appeal (as is normally required) on the basis that this would serve as an ‘alternative remedy’ to the lodging of a judicial review claim. The senior joint acting judicial lead of the tribunal responded in a letter of 9 March 2009 stating they could not, as without an amendment the tribunal’s jurisdiction was not engaged under any provision of the Education Act 1996.

Given the delay, an urgent detailed letter before claim was sent to the Director of Children’s Services on 19 February 2009. The reply from the LEA’s legal department of 27 February 2009 was very short and simply reaffirmed the position that the LEA considered that it was under no legal obligation to amend C’s statement.

The judicial review application

M and her husband thus took the difficult decision to proceed with an urgent application for permission to apply for judicial review, on a privately funded basis. Counsel was instructed to prepare the grounds. Realising that time was against M and her husband it was decided that not only should an urgent application for permission be made, but the court should be requested to abridge time for service of the defendants’ acknowledgement of service and requested to list a ‘rolled up’ oral permission and substantive hearing at the earliest opportunity.

The hearing was quickly listed for 28 April 2009. The need for the urgent timetable was an obvious one. If M succeeded in her claim the LEA would be required to amend C’s statement (albeit notionally) forthwith, so that she and her husband would then be able to lodge an appeal as soon as possible after that (ie by mid-May 2009) and thereafter try and get the hearing expedited by the tribunal and listed before the end of July 2009.

The claim

In the judicial review claim M had lodged witness statements from both her solicitor and the Chief Executive of IPSEA (the Independent Panel for Special Educational Advice) which, between them, set out the historic need for the phase transfer provisions to be brought into effect and how the failure by the defendant to amend C’s statement in this case was part of a much wider problem. IPSEA’s witness statement stated, among other things, that as at January 2008 there were approximately 223,600 children in England and Wales who had a statement and who could experience transition a number of times through the different phases of education. It pointed out that when a statement was first issued or amended a parent had a statutory right of appeal against Parts 2, 3 and/or 4 of the statement.

IPSEA argued that by narrowing the issue of amending a child’s statement at phase transfer to that of the school that they consider the child should attend, the LEA was failing to consider the wider requirements of the statement to decide needs first, then provision and only then to decide upon which placement was appropriate to make that provision. By refusing to allow for the adequacy of the statement to be challenged the child’s needs and provision could theoretically never be reviewed. As the intention of the legislation was to ensure both that parents had time to appeal and, more importantly, that no delay would ensue in the child attending a new school with all of the appropriate provision that they needed in place, by not issuing the statement by the 15 February deadline the LEA was purposefully preventing parents from asserting their right to appeal against it.

Secondly, IPSEA pointed out that no right of appeal to the tribunal would be triggered and no other effective means of challenge would be available to parents. This would place parents of children in all-age special schools (some of which go from 3 to 19) at a substantial disadvantage compared with those whose children who attend ordinary (mainstream) schools. It also stated that in IPSEA’s experience, it was the school to be named at phase transfer that caused most disagreement between parents and LEAs as over 80% of the parents who contacted IPSEA for advice did so at these points in their child’s education.

The LEA’s acknowledgement of service, received on 14 April 2009, failed to engage with any of these arguments. To make matters worse, it tried to imply that M had further rights of appeal against a refusal to comply with a request for a change of named school, and against a refusal to comply with a request to reassess.

M’s solicitor and the chief executive of IPSEA therefore compiled and served further witness statements addressing those points. They stressed that a parent only had a right of appeal against a refusal to name an alternative maintained school and how a refusal by an LEA of a request for a reassessment did not found a right to appeal against a statement but only provided for a right of appeal against the LEA’s refusal to reassess. They concluded that both these remedies were of no practical or realistic benefit to M.

The hearing and judgment

Although the hearing of the claim was listed for a half-day, legal arguments took less than one hour. The judge, Timothy Brennan QC, after taking just a few minutes to collect his thoughts, gave an extemporare judgment granting M permission, stating that she ‘clearly had an arguable case’ and then allowed the claim in full. The judge both quashed the defendant’s refusal to issue an amended statement to C and issued a mandatory order that the defendant should amend C’s statement and serve it on M within 7 days. He said that this was so that M and her husband could lodge an appeal as quickly as possible with the tribunal with the hope of having the appeal listed for hearing by the end of July 2009. The judge also summarily assessed the claimant’s costs in full against the local authority.

The need to name a type of school in part 4

At the beginning of this article it was submitted that this judgment has potentially far-reaching consequences for children with statements of special educational needs. The reader may understandably draw the conclusion that this simply refers to children in a similar position where an LEA argues that there is no need to amend their statement at phase transfer because the school named in Part 4 is also able to provide for the next phase of education (eg it is also a secondary as well as a primary school). However, the judgment seems to go further than this.

The judge was referred by M’s counsel to the fact that both primary and secondary legislation make clear that Part 4 of a statement must prescribe either the type of school that the child should attend or in some cases the name of the school. Section 324 of the Education Act 1996 which deals with the requirements of statements states:

‘(4)  The statement shall—

(a)    specify the type of school or other institution which the local education authority considers would be appropriate for the child’ [emphasis added].

While ‘type’ is still not formally defined, R (M) has now implied that it means not only mainstream or special school, but should also state whether that school is a primary or secondary school, and so on.

Regulation 16 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (13) states that a statement must ‘be in a form substantially corresponding to that set out in Schedule 2 to these Regulations’. Schedule 2 to the Regulations then sets out a template that can be used for drafting a statement which states under Part 4:

‘[Here specify]

(a)   the type of school which the authority consider appropriate for the child and if the authority are required to specify the name of a school for which the parent has expressed a preference, the name of that school, or, where the authority are otherwise required to specify the name of a school or institution, the name of the school/or institution which they consider would be appropriate for the child and should be specified; or
(b)   any provision for his education otherwise than at a school which the authority make under section 319 of the Act and consider it appropriate to specify.’

During the course of the proceedings the judge had pointed out to him by M’s counsel that, although East Sussex’s counsel was attempting to argue that the naming of a school as being ‘primary’ or ‘secondary’ school was otiose (since the child’s age would determine whether they should be at primary or secondary school) there are also other phases of schooling such as ‘infant’, ‘junior’ and ‘middle’ school.

Accordingly, it could well be that a child is back-classed (ie kept down a year) so that although they are of secondary school age they are still in a primary school setting. The judge seemed to take this on board when delivering his judgment.

The potential ramifications

As such, it is the writer’s opinion that many of the 200,000 plus statements of special educational needs currently in operation in England and Wales may actually be drafted unlawfully because they still only name a school but do not name a ‘type’ of school. If that is the case, many LEAs may now be in breach of their statutory duties, not only in relation to existing statements but also in their system of writing new statements. The corollary to this is that any existing statements not naming a type of school in Part 4 need to be amended forthwith.

Given the fact that any amendment to a statement by an LEA triggers a right of appeal against the contents of the whole statement to the tribunal, we could theoretically be seeing an increased number of appeals in the future because of this fact.

Alternatively of course, many parents who are in dispute with their LEA over the contents of Parts 2 and 3, not only Part 4 of their child’s statement, even if they may have already been unsuccessful in an appeal to the tribunal previously (as had M and her husband), may have the theoretical right to bring judicial review proceedings against any LEA which refuses to comply with a reasonable request to amend a statement in order to ensure Part 4 describes a type of school as well as naming an actual school.

In many ways this was a case which should never have been needed to be brought. As the judge remarked during the course of the proceedings, it could be concluded by M that the real reason that the LEA was refusing to amend C’s statement was not because they were simply adopting a different interpretation of the regulation, but rather because they were attempting to deny M and her husband their statutory right of appeal.

Incisively, the judge made it clear during the course of the proceedings (and in many ways in his overall judgment) that, as C’s statement did not currently name a type of school in Part 4 which it should have done, then it was clear that if the LEA had done what they were required to do initially and named a special primary school in Part 4 at the relevant time, C’s statement would necessarily have needed amendment anyway at phase transfer to name a special secondary school, which would trigger the right of appeal. The judge pointed out that the defendant was therefore trying to argue that there was no need to amend C’s statement by relying on its own illegality!

The practical difficulties of phase transfer appeals

That should be the end of the story in theory, but there are a number of other practical difficulties with the current timetable for phase transfer appeals.

Unfortunately, in practice, many phase transfer appeals still have to be expedited. This is due to the fact that the average time for appeals being decided from the date of registration has been creeping up over the years. The theoretical argument that appeals can be decided by the end of July where a statement is amended by 15 February is often flawed. Many parents are still unable to lodge an appeal until close to the 2-month deadline (ie 15 April (14) for statements sent on 15 February) either because they are still collecting expert evidence or because it had taken them time to obtain appropriate representation or assistance in lodging their appeal. This means that many phase transfer appeals are still not being lodged until the last week of March or the first couple of weeks in April. After taking into account the 2-week target deadline that the tribunal has for registering appeals (15), and the fact that the whole average time for issuing decisions on appeals after registration is becoming more like 5-6 months, some (and critics would say ‘many’) phase transfer appeals may still not able to be heard and resolved before the new academic year begins (or in some cases even later).

Even hearings in July sometimes need to be adjourned for one reason or another, adding more problems. Many parents caught in this situation are then left with the dilemma of what they should do with their child in the September if they cannot get a hearing before then. If they choose to send their child to the school that is named as appropriate by the LEA in Part 4 of the statement (under appeal) during the interim period leading up to the appeal hearing and tribunal’s decision, they understandably fear that the LEA and LEA-named school (which will, more likely that not, be a maintained school within the LEA) can simply argue that the child has already settled well into the new school and is having their needs met adequately (which is, in effect, all that the law requires).

The LEA may even argue that the child’s education should not be disrupted by moving them to the parentally preferred school now that they have settled in. (It is accepted by the writer that parents also try to use this argument if placing their child privately at the school they seek via an appeal.)

This can lead to very unsatisfactory arrangements where parents feel that they have no other choice but to ‘home educate’ their children from the September until the tribunal’s decision is issued or, alternatively, try to reach some sort of agreement (if the current school is a maintained one) with the LEA and (if the school appealed for is independent/non-maintained) with the prospective school to take the child early on a privately funded arrangement. This is not always possible and can sometimes work against the parents in the long run as it may imply that they are trying to emotionally blackmail the tribunal not to move the child.

Many phase transfer appeals still need to be expedited for hearing by the end of July which, in turn, causes a ‘bottle-neck’ and some cases are still not being listed before September. In fact, unless the appeal is lodged/registered quickly, allowing for a hearing by the end of July, the parent will need to make an application for an earlier hearing after registration when a provisional hearing date is fixed (16). Moreover, an earlier hearing will then not usually be listed without the LEA’s consent! (17)

While many LEAs may say that they have no theoretical objection to an earlier hearing being listed, few will then make it practically easy to achieve. An LEA may argue that they are unable to make their witnesses available, saying the hearing can realistically only be in the second half of July and school holidays start in the last week or so of July. This is even where a hearing date is proposed prior to the summer break.

Understandably, LEAs may feel that, by agreeing to an earlier hearing date, they will be shortening their time to obtain further evidence to refute the parental evidence. However the new tribunal Rules (18) have now removed the right for parents to submit a ‘case statement’ at the same time as the LEA submits their response to the appeal (19), which they will normally still have 6 weeks to do.

Given the fact that parents will then only be allowed to submit further reports with the express permission of the tribunal (by way of a direction at a case management hearing which is normally held on the telephone where an earlier hearing is requested) (20), there would seem to be sufficient safeguards to ensure that an LEA is not put at any greater disadvantage than the parents in trying to get any further evidence together in sufficient time.

In fact, it could even be argued that an LEA has an advantage under the new system. Parents are now practically required to put in as much of their evidence with their notice of appeal. In this way the LEA gets to see most of the appeal from the outset. Furthermore, the parents can offer (or the tribunal may require them) to disclose any further evidence as soon as possible after the case management hearing so that the LEA then has even longer than the parents to submit any further evidence or response to what they are saying.

The new rules were meant to stop each side trying to ‘ambush’ each other with further ‘late’ evidence being disclosed as close to the hearing as possible (which would often lead to unnecessary but ultimately fair adjournments so that the other party had the time to consider the new evidence in detail). It was hoped by all that the new rules will stop the ‘ping-pong’ approach of obtaining or submitting evidence which can sometimes go on in perpetuity/ad nauseam.

Finally, it could also be argued that many LEAs may be the authors of their own misfortune by choosing not to amend statements ahead of phase transfer until the very last minute in the week leading up to 15 February.

The Way Forward?

Although this article was first drafted with the intention of simply analysing and explaining R (M),it soon became clear from what has been stated above that there are still a number of other issues that need to be addressed in relation to tribunal appeals about phase transfer. At the risk of sounding overly simplistic, the writer suggests that probably the most effective way to change this for everyone’s benefit is to amend the phase transfer provisions to ensure that statements are amended by an earlier deadline of, say, 15 November, rather than 15 February. Although the writer is fairly sure that there will still be critics of this new date – parents, for example, will argue that this means they now effectively have one less week in which to appeal because of Christmas/New Year and LEAs will argue that they will be required to start amending statements so they can be issued in a proposed form by around the middle of September (21) - this still seems infinitely better than the current situation.

Of course it is accepted that, by definition, there will then need to be an annual review held in the previous summer term to discuss the forthcoming transfer a year ahead. But this all makes good common sense. After all, in cases of phase transfers regarding children without statements, parents are normally expected to get their application/preference to the LEA by the middle to end of October. The LEA then has around 4 months to allocate places according to the co-ordinated admissions framework (ie by the beginning of March). Any subsequent appeals are then submitted and heard within a strict timescale and usually dealt with by the end of July.

While there will not be as many appeals in relation to children with statements, there is usually a great deal more at stake. It is therefore not unreasonable to suggest that deadlines are brought forward by 3 months (or more) to everybody’s benefit (ie parents, LEAs and the tribunal itself).

Conclusion

So what started out as a simple case of theoretical statutory interpretation has resulted practically in a potentially substantial change to the way that statements of special educational needs must now be drafted and issued for those LEAs who were ignoring the primary legislation. It could also now be a ‘wake-up’ call to Parliament to revise the whole timetable that we have now become used to in relation to phase transfers. So perhaps the next time there is a dispute about the meaning of primary or secondary legislation, the simplest (and cheapest) conclusion that should be drawn is that ’It does what it says on the tin’!

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Footnotes

 

© Jordan Publishing Ltd 2009