Tribunal over subscribed special school

[Pilaf]

Re-posted here on advice of forum member

Our only preference for secondary transfer was for a well established experienced ASD school. LEA given us a local ASD school lacking in experience with issues we don't find acceptable for our son's education. (appealing part 4 of son's statement)

Problem is the school we want is very popular and oversubscribed by about 10 places. Anybody got any experience/advice in relation to tribunals for oversubscribed schools? It does say in part 3 of the statement that the provision should be for staff experienced in dealing with children with ASD.
Don't how how much weight this will carry.

Not sure who to bring to tribunal. The statement itself we are happy with, just wondering how much help a solicitor would be to us in this case. Both schools are ASD specific schools.

Does anyone know where to get the full transcript to:
NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC)

This case is particulary relevant and I am struggling to find the full transcript (been in contact with IPSEA). Should I get an educational psychologist report? Not contesting other parts of statement apart from part 4

Any advice much appreciated (10 weeks to go till hearing) including child educational psychologist recommendations (Birmingham area preferred).

Hi

I'm a lawyer (this is not my area) but I have access to legal databases. I will try and find it for you and then forward it to you

OK, I've got it and cut and pasted it over from a pdf on Lawtel.

If you want to just read it, PM me with your email address and I will send you a copy but it has a bit of a messy layout as it has been copied from the pdf.

If you need a proper version, I will print it and send it in the post.

This is the case summary:

The Upper Tribunal construed the Education Act 1996 Sch.27 para.3(3)(b), which allowed a local education authority to reject the preferred school of a parent of a child with special educational needs where the child's attendance there "would be incompatible with the provision of efficient education for the children with whom he would be educated".

The appellant parent (P) appealed against a decision of the First-tier Tribunal that the child (D) she was caring for was not to be educated at her preferred secondary school (M).

D had special educational needs. Rejecting P's case that he should attend M, the tribunal concluded that placing him there would have an impact on the efficiency of the education of the other children such as to make his attendance there incompatible with the provision of efficient education, that M had already accepted applications up to and over its admissions number for the relevant year and that the number of statemented pupils had placed a strain on the staff and prevented them from fully meeting the needs of pupils with and without statements. The issues were (i) the interpretation of the Education Act 1996 Sch.27 para.3(3)(b), which allowed a local education authority to reject a parent's preferred school where the child's attendance there "would be incompatible with the provision of efficient education for the children with whom he would be educated"; (ii) whether the tribunal had given adequate reasons for its decision.

HELD: (1) The words "the children with whom he would be educated" did not have any artificially restricted meaning but had to be interpreted as ordinary English words as appropriate in the circumstances of particular cases. But inherent in that was that the words had to be intended as words of limitation; they did not simply allow a consideration of the impact on any children who could be said to be affected by the admission of the child in question. Consequently, the necessary process of interpretation and application to particular circumstances was quite a sophisticated one, which would often require some express consideration in a tribunal's statement of reasons. Depending on the circumstances, it might require an identification of what other children fell into the category of those with whom the child would be educated. "Efficient education" indicated a standard, not the very highest desirable standard or the very basic minimum, but something in between that the members of the First-tier Tribunal were uniquely qualified to recognise. The test of incompatibility with the efficient education of other children was also quite a sophisticated one. It had to be applied by reference to the circumstances only of the child in question and other children who were already known or predicted to be in the category of those who would be educated with the child. Although the overall context of the school would be relevant, especially in relation to whether adjustments could be made elsewhere to avoid an incompatibility that would otherwise arise, the circumstances of other children who might possibly be admitted, particularly as the result of other outstanding appeals, could not be taken into account. Depending on the circumstances, it would often be necessary for a tribunal to identify just what difference the admission of the child would make before it could go on to evaluate whether admission would take the standard of education provided to the other relevant children below the level of efficiency. (2) The tribunal had erred by failing to identify the children that it considered fell into the category of those with whom D would be educated if admitted to M and by failing to conduct an adequate examination of the difference that D's admission would make. The tribunal should have taken those steps and then, given the way that M was already living with what it considered an unsatisfactory situation, evaluated whether the impact of D's admission would be enough to take the standard of education provided to the other relevant children below the level of efficiency and whether there was any way of avoiding that degree of impact.

Appeal allowed

Have a look at the two paragraphs below from the sencop:

Paragraph 8:86 in particular applies to your situation, as the school you want named is a special school. Although you say in your op that the school is oversubscribed by 10 places, the relevant numbers for you are the numbers of children in the class in which your ds would be placed. Can you find out from the school whether his particular intended class is oversubscribed and if so by how many pupils? Even if it is, you may still be able to argue that, despite being oversubscribed, it could still include your son without prejudicing the education of the other children in the class. It will be easier to do so if it is not an infant class (stricter legislation on numbers) or a class including many children who need access to physical aids such as wheelchairs (because of the additional space issue). Although going over numbers in a class could be prejudicial, you can argue that there are reasonable adjustments (such as employing an additional TA to improve the staff: pupil ratio) which could be made. You can argue that the LA and the tribunal should give consideration to the likely benefit for your ds having access to specialist teaching more appropriate to his needs as being greater than any potential negative impact on his fellow students in his class.

link to whole of sencop here in case you haven't got it:
www.education.gov.uk/publications/eOrderingDownload/0581-2001-SEN-CodeofPractice.pdf

"8:85 The LEA should also consider carefully whether the admission of the child to a maintained mainstream school would take the school over the number fixed as the number of intended admissions for the year, which must not be less than the ?standard number? or ?approved admissions number?, in other words, whether the school is already nominally full. Admitting children over this number might be incompatible with the provision of efficient education or the efficient use of resources. In some schools an additional child in a class would be incompatible with the efficient education of others as there might not be enough physical
space, especially if all the children require particular aids that take up a lot of space. LEAs must also comply with the class size legislation in infant classes (see paragraphs 1:33 ? 38).
A local education authority shall, before specifying the name of any maintained
school in a statement, consult the governing body of the school, and if the
school is maintained by another local education authority, that authority.
The LEA must serve a copy of the proposed statement or amended statement, or of the existing statement and the amendment notice to the school(s) whom they are consulting, and if the school is maintained by another local education authority, that authority.
See Schedule 27, Education Act 1996 111 Special Educational Needs ? Code of Practice
The LEA should consider these points very carefully in cases where they are not the admissions authority for the school in question: that is, another authority maintains it or it is a voluntary aided or a foundation school.

8:86 Admissions over the number fixed for admissions in special schools may be more complex because the admissions number is expressed as a global total rather than per class or year group. In such cases, the LEA should consider the number in the class to which the child would be admitted rather than the total for the whole school."

Thank you for your posts. Good and useful information

I have sent a FOI request to the council to get total numbers and numbers of pupils in excess of capacity for the two schools. Hopefully this will give us some useful information to work with. Every year the ASD specific schools here have been over subscribed due to lack of funding. I know this is a nationwide issue.

It is proving difficult to obtain evidence against the school we don't want our son to go to apart from our own. It is known that experience is an issue at that school but proving it is another matter (Ofsted report not very helpful). Any advice appreciated (can you get a psychologist to do a report on the school maybe?) I have been told you need to present as much evidence as possible to the tribunal but rather difficult to do.

If there are any forum members familiar with ASD specific schools in the Birmingham area (you will know the three schools) then I would really like to hear from you (including parents) PM me or otherwise