Academies diminish the rights of SEN children

Fiona Millar's picture
One reason why I have always opposed the idea of "independent" state schools is because the rights of pupils , parents and teachers are not the same as those enjoyed by the same groups in the maintained sector ( parents and governors in converting schools take note).

This story in today's Guardian points to how that is starting to effect some of our most vulnerable children - those with Special Education Needs. In the case highlighted by this story, Mossbourne Community Academy ( one of the most celebrated and highly publicised independent state schools) has deftly used its independent status to avoid taking in a child with cerebral palsy . The parent had applied to SENDIST - the SEN tribunal - after the school refused to let the parents name Mossbourne on his statement. But the tribunal struck out  the appeal on the grounds that the school is not governed by law that binds all maintained schools because it is independent and therefore only governed by its funding agreement with the Secretary of State.

For a more details explanation of the legal problem here - see lawyer David Wolfe's excellent blog on his website A Can of Worms, which regularly shines a light on the murky freedoms over half our secondary schools now enjoy.

Wolfe writes: "In summary, the judge decided to strike out the appeal on the basis that, even if the Tribunal was to uphold the appeal (and order the LA to name the academy in Part 4 of the child’s statement) the child/parent would not be able to force the academy to admit, such that the appeal had no prospects of success. (That’s the same thinking which leads the Tribunal to refuse to hear appeals where what the parent is seeking is anvbindependent school which is refusing to agree to being named.)"

During the passage of the Academies Act in 2010, ministers assured MPs and Peers that there would be parity between independent and maintained school on the SEN issue. This is clearly not the case and as we have already pointed out on this site, academies and free schools also have the freedom seek a variation to their funding agreements that would  also relieve them of their obligation to abide by the School Admissions Code.

One would have thought that David Cameron, as a parent of a child with SEN, would want to rectify this situation as soon as possible. I suspect it may be harder to do than anyone realises. Even if they manage to close this loophole in the law, ensuring that academies comply with the responsibilities they  have relies on parents complaining or seeking legal action which many are loathe to do.

If people don't complain, academy schools will be able to get away with cutting corners and  manipulating their intakes via admissions and exclusions. The schools that will have to pick up the pieces will be the local maintained schools whose successes in performance compared to academies, seems even more admirable given they are not competing on a level playing field.




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Sarah's picture
Fri, 25/05/2012 - 11:28

Even more worrying from a parental point of view is the situation where all the schools in an area have become Academies (in line with Gove's aspirations) and none of the schools will agree to take a particular child. The parent is left with no school place for their child and the local authority has limited powers of intervention to help them.

Janet Downs's picture
Fri, 25/05/2012 - 14:23

According to the Government, academy conversion allegedly gives schools the freedom to innovate, improve standards and raise the achievement of all pupils. Apart from the obvious nonsense of this statement which implies that non-academies can’t innovate, improve standards or raise achievement, there’s the doublespeak which reverses the meaning of “all pupils”. If an academy can use its independent status to prevent a statement naming the academy, then “all pupils” means “only those pupils we want.”

Andrew Old's picture
Sat, 26/05/2012 - 04:27

Missing the obvious question here: Is it a good thing to force schools to accept pupils whose needs they cannot hope to meet?

It is simply not enough to say it is unfair that academies are able to resist the ideology of "inclusion". You actually need to address the issue of whether that ideology is right for children in the first place. If it isn't, and it is something forced on unwilling schools by ideologues in government and local authorities, then all you have done is identify an advantage of letting schools be academies.

Rebecca Hanson's picture
Sat, 26/05/2012 - 13:22

"You actually need to address the issue of whether that ideology is right for children in the first place."

I've always worked in schools which have actively included students with very severe disabilities. The benefits for both the included students and the rest of the children who learn the skills of interacting confidently and easily with students with severe special needs have been very obvious.

So the reasons for the principles are very clear. Of course I accept that there are children who are better educated in special schools, however cerebral palsy is only a physical disability and children with it are usually educated in mainstream schools.

Where old, poor buildings have been unsuitable for children in electric wheelchairs and so on timetables have been changed to ensure appropriate access. It does seem strange to me that Mossbourne, with it's state of the art modern buildings, has decided it cannot accommodate a child because they are physically disabled.

Allan Beavis's picture
Sun, 27/05/2012 - 09:09

Well the obvious answer to this, Andrew, is where do you allow schools to draw the line on pupiils they deem unacceptable because they cannot meet their needs? Perhaps you have indentified and laid bare the ideology behind the drive for academies. Not only are they great portals through which an avalanche of private companies can make handsome profits from tax payer funded schools but their freedoms and lack of accountability allow them to make arbitrary decisions on what types of students they wish to accept.

andy's picture
Sat, 26/05/2012 - 08:27

There are many that will bristle and rail at what follows.

For me the heart of the issues does not lie with whether an academy or free school refuses to admit SEN pupils, no, it falls with the decisions of several governments who decided to effectively dismantle the 'Special School' provision that was designed, structured and staffed to meet the needs of children/pupils with specific educational needs. If my memory serves me well the decision to dismantle the provision was based purely on economic needs during the Thatcher era. We than had the Labour years where in Mr Blunkett championed inclusivity (no matter what the cost). The true cost of this debacle of course was not in £ and p but also in the dimunition of provision to all pupils: the able, disabled and SEN, none of whose needs could be adequately or appropriately met through the loss of special schools and inclusion agenda.

Far too much of the debate on these issues is focused on political point scoring, personal agendas, sentimentalism, emotivision and the it's my right agendas. Noticeble none are predicated on what is best for the children directly and indirectly involved or on what mainstream schools can and cannot provide, are and are not funded, trained and equipped to deliver.

Rebecca Hanson's picture
Sat, 26/05/2012 - 09:17

The SEN issue was being discussed at a union meeting I was at on Thursday.

One key concern raised was that the LA used to train and employ a number of people who were trained in a wide variety of specialist SEN support roles which schools could then call on as and when necessary.

One example used was that they had someone who was trained to teach children with one hand to type with special keyboards and provide schools with other guidance and support regarding the issues such children face.

Of course all these people are gone now so the skills base for many kinds of disability has gone.

The support team for many hundreds of looked after children has been cut from 17 to 3 and is simply not coping at all.

And of course it's ludicrous that parents should be fighting with individual schools about places for children with significant SEN. There should be LA advice for them to guide them in finding schools which can give appropriate provision for their children and a local plan to ensure that such provision exists somewhere.

Sirkku Nikamaa-Berg's picture
Sat, 26/05/2012 - 12:31

I cannot possibly comment on the specifics of this case as I do not know anything about the student or parents in question, but as a foreigner it is difficult for me to understand that the parents are put in a situation where they have to defend their choice of school through legal means.
In many other countries (incl. Finland) the situation is reverse. The local school is the first choice and in secondary the school of their choice.
"The first alternative for providing special needs education is to include pupils with special education needs in mainstream classes and, when necessary, provide special needs education in small teaching groups.
Students may receive part-time special needs education by a special needs education teacher if they have minor difficulties in learning or adjustment. The student may have an individual learning plan if required. The individual study plan includes a plan on arranging education, whether it is integrated, partly integrated or a special class, the goals, contents, support and principles of assessment. Only when this is not feasible is the second alternative considered: the provision of special needs education in a special group, class or school. An official decision needs to be made if a student is transferred to special needs education. The decision is based on a statement by a psychological, medical or social welfare professional, with the mandatory hearing of the guardians. The decision on the transfer to special needs education is made by the school board of the pupil’s municipality of residence. According to the Basic Education Act, admission or transfer of pupils to special needs education always require consultation with the parents or other guardians. Where the decision on transfers to special needs education is made against the consent of a parent or guardian, the parent or guardian may appeal against the decision to the Provincial State Office."
A large percentage of students in Finland are in need of some kind of learning support during their basic education. Generally speaking the trend is to fade out the concept of SEN, statements and labels and provide early and appropriate support for learning. That should not be too difficult. The immense legal cost of arguing provision, admission etc could and should be put into better education for all.

andy's picture
Sat, 26/05/2012 - 15:50

Sirkku, what you describe sounds relatively ideal. That is to say, appropriate professionals make the decision and parents have the right of appeal but surely this represents an equivalent ineffective waste of money asw the English system? You refer to other countries but only cite Finland with no mention of the country for which you describe - unless this is also Finland. While it is quite legimate to cite the Finnish (or any other country's SEN process), the former education system simply does not compare to the UKs and thus is not an apporpiate comparison (e.g. they do not have SATs at KS2 nor formal public exams in KS4 which schools are held to account for). The UK has a high stakes, high pressure attainment education system for which teachers and HTs can lose their jobs if the central benchmarks are not met. This also generates pressure from parents regarding results. UK teachers are results driven and are not adequately trained or given the time to cater for the full range of and numbers of SEN pupils. Hence my comment that it is not the fault of academies or free schools but the UK education structure, which places subject based qualifications as its priorities.

Rebecca Hanson's picture
Sat, 26/05/2012 - 16:32

Sirkku is Finnish Andy.

Would it be fair to summarise your comment by saying that what happens in the Finnish system isn't relevant here because they have an education system which is centred around the needs of children and we have one which is centred around the needs of politicians?

andy's picture
Sun, 27/05/2012 - 08:52

Sirkku, thank you for your response and the clarity with which you describe the Finnish approach to SEN, which compared to the UK approach is, for me, genuinely enviable. And, when set against the UK approach I can appreciate your perception of how perplexing and jarring our system is. On the one hand we have legislation allegedly enshrining entitlement to appropriate educational support (including additional funding for certain categories) but on the other few children actually well served by schools in meeting their needs. It has been my experience - as a parent and teacher - tht the roots of this are in the Primary sector and all to often then perpetuated in the Secondary phase where SEN issues are not identified and dealt with anywhere near quickly enough.

I suppose the bottom-line for me is the crucial difference between the Finnish and UK approaches. In both children clearly matter but any similarities rapidly diminish/disappear thereafter. It is abundantly clear that in Finland education is pupil centred and not results driven, which allows pupils to develop as learners at their own pace and in ways that are dare I say more natural to the individual child; they are then unencumbered by straightjacketed expectations and imprecise predictions of expected progress. Whereas in the UK (or more precisely England and Wales), children are monitored and evaluated against these imprecise measures of progress and force fed to enable to 'achieve' in their SATS. The latter most clearly results in turning children off learning, absorbs far too much teacher time and focus at the expense of supporting a child's learning development (and the time to identify potential SEN issues) and stiffles children as people. I am often amazed that more of our children aren't disaffected and disengaged than current levels indicate.

Thus, it is not that I am against provision of SEN or the concept of inclusivity. Rather the educational system applied in England and Wales militates against it because from pupils to teachers and Headteacher's their learning and educational experience is rooted in and measured by high pressure attainment expectations through formal examinations in Year 6 and Year 11. This has become the focus and reason for schools existing and as such it is my belief that this means that SEN pupils are seen as hindrance/obstacle to meeting the expected levels of progress imposed on pupils and children. So for me then, either we radically reshape our education system or reintroduce appropriate educational provision capable of meeting the needs of our child learners with SEN.

Allan Beavis's picture
Sun, 27/05/2012 - 08:59

You state that it is not the fault of academies or free schools but the pressure on schools to deliver oustanding results in all areas within a rigid one-size-fits-all curriculum and testing process has meant that education in England is at risk of sideliing and excluding students deemed challenging to the school environment. The current government have ramped up this pressure on schools and Gove has to ultimately take responsibility for the fact that their flagship Academy and Free Schools have been given licence, through legislation he drove through at breakneck speed, to exploit ambiguities which permit these rudderless schools to de-select or exclude pupils they consider challenging. It begins with SEN, so where will it end?

It is actually the fault of Academies, Free Schools and Gove himself because between them they have imposed a new and growing network of schools that do not have to abide with the regulations governing maintained schools. We were told by supporters of Academies and Free School posterbores such as Toby Young and Katharine Birbalsingh that Gove's policies would give freedom and choice to parents and those who did not believe them were regularly abused as conspiracy theorists. Well, it seems that an Academy's right to a lack of accountability to parents and the local community works very effectively to deny a parents right to have their child education in their local Academy. Gove and his supporters have claimed these schools are inclusive. Well, not so and it is no surprise that parents are taking legal action.

The Finnish system absolutely does not compare to us but this does not mean that it cannot be held up as a model in comparison. As we are infected further with the germ of high stakes testing, punitive measures and sidelining of the teaching profession, we are aligning ourselves with the the American system of school "reform" which, over 20 years, has failed to raise attainment across the board. Had we begun to align ourselves with Finland, we might stand some chance of leaping up the PISA rankings as rapidly as they did.

andy's picture
Sat, 26/05/2012 - 17:26

Thank you for answering on Sirkku's behalf but I was quietly confident that she would respond if she wanted to.

No, it wouldn't.

andy's picture
Sun, 27/05/2012 - 09:14

Allan, with the greatest of respect I would invite you to re-read my comments. I make a point of acknowledging the Finnish approach and not only that but praising it, "Sirkku, thank you for your response and the clarity with which you describe the Finnish approach to SEN, which compared to the UK approach is, for me, genuinely enviable. And, when set against the UK approach I can appreciate your perception of how perplexing and jarring our system is."

No I don't blame any school for effectively being forced into doing what it thinks is best for its students within the context they are forced to operate. And, yes, I do blame party politics and sordid money saving measures imposed by parliament - Conservative and Labour - that have ultimately led to the awful situation we have today. That is to say, where results, soundbites, populist measures and vote collecting are more important than the development of our children, who without wishing to sound overly trite are our future.

Sirkku Nikamaa-Berg's picture
Sun, 27/05/2012 - 07:43

My apologies for failing to mention that the "relatively ideal" system described is Finland, and for forgetting to mention my own nationality, which is Finnish. And I am sorry about the delay in replying. I was outside enjoying the beautiful English countryside!
In the UK, the school's right to deny access for certain students effectively denies parents the right to choose a school for their children.
Rebecca points out, quite correctly, that the Finnish education system is centered around the needs of children. Timely and effective support by a multiprofessional staff for various forms of learning disabilities or physical obstacles is a legal right. The difference is a school in Finland can't say 'no'. Even if the care required is nigh-impossible, the school is required to collaborate with the parents to find a solution.
The schools and the professionals in Finland are there for the students - not vice versa. Multiprofessional collaboration and a solid network offering varied forms of support is possible in a strong comprehensive school system - which brings me back to the title: "Academies diminish the rights of SEN children". The UK system, which is complicated and based on competition, testing and selectiveness, can risk access to quality education for all.
However, a change is possible. Moving towards increased professional collaboration and a stronger comprehensive school system will ultimately benefit all learners.
You also write: " UK teachers are results driven and are not adequately trained or given time to cater for the full range of and numbers of SEN pupils". No one expects all teachers to be SEN experts in Finland either. A decree passed in 2011 gives teachers the responsibility to identify students' learning difficulties at the earliest state possible. This widens the teachers' and local level responsibility to seek solutions for supporting these students. Inclusion has been the main principle and the decree strengthens the trend. The key is networking and multi-professional co-operation. Teachers or schools are not left alone in their pursuit of quality education or in their efforts to include all learners. Good learning for all requires time, concern, professionalism and resources that can be made available more economically and more easily in a comprehensive school system than through a network of small units. Admittedly the UK system is different, but a changed mindset that puts the student at the center, coupled with reforms that increase collaboration will help all families here as well. It is not too difficult, nor is it too expensive. It is a question of political will and practical steps towards a more equal system.

Rebecca Hanson's picture
Sun, 27/05/2012 - 07:56

Thank you Sirkku.

In this other current discussion:
contributors are suggesting that some schools in Finland do select based on exam results. Are you able to comment on that in that discussion?

Andy I'm happy to accept that the observation that the comment that "the Finnish system has an education system which is centred around the needs of children and we have one which is centred around the needs of politicians" is my comment not yours.

It is based on the reality that all other organisations in Britain have inspectors/regulators who are bound by laws and principles which require them to act in the overall interest of the organisations they inspect but English state schools have an inspectorate which exists entirely for its own purposes and those of politicians and acts in direct contradiction to the standards of good inspection and regulations and that this filters down to create a 'politician centred' education system.

We also have the vote winning policies such as pandering to the needs of adults who feel vocated to open schools rather than putting children at the centre of what is decided going on too of course.

andy's picture
Sun, 27/05/2012 - 08:24

Rebecca: It's very generous of you to be "happy to accept" that your summary of my comments are just that, "your comments" not mine. I didn't need you to tell me that, I already knew it. Please refrain from superimposing your views on mine. Neither am I interested in your justification of your views let alone implying that those views justify overlaying them on mine.

Janet Downs's picture
Sun, 27/05/2012 - 09:37

Allan and andy - you are both actually on the same side. Both recognise the danger of judging schools and teachers by high-stake testing which OECD warns leads to teaching-to-the test, grade inflation, "gaming" (ie cheating) and neglect of non-cognitive skills. Such tests also carry perverse incentives to dissuade certain children from being offered places in schools wishing to be at the top of league tables.

The Government has abandoned the policy of "Every Child Matters". A TES editorial
said that ministers believed the policy was an undesirable distraction from a school's core purpose of educating children. "No longer do children need to "enjoy and achieve" - just achieve. Even if keeping pupils safe and healthy were still an official priority, local cutbacks are making it harder for schools to bring in specialised support."

When a child is given a Statement, the statement names the school most able to serve the child's need. No school, therefore, should be able to deny a child a place in a schools which has been identified as being the one best placed to meet the needs of the child.

andy's picture
Sun, 27/05/2012 - 09:51

Janet: Conversely, there is just the chance that this regrettable situation will lead to the government been forced into a high profile review of SEN admissions. That is to say, as more and more maintained schools become academies and exercise their legal option on refusal this will form clusters of SEN pupils who cannot be allocated a place within their travelling distance, and then the issue will gain national prominence thayt will not simply go away. I think the phrase is hoisted on their own petard.

Allan Beavis's picture
Sun, 27/05/2012 - 10:12

I did read your comment and was essentially in agreement with you. I think this SEN challenge will encourage other parents to come forward with claims - unjustified or not - of discrimination. Tighter legislation, absolute inclusion and local accountability could have protected both school and pupil.

Rosie Fergusson's picture
Sat, 09/06/2012 - 10:12

I was sending bleating emails about degradation of SEN childrens rights to all 45 LIb Dem MPs , Sarah Teather and Labour Shadow Minister 6 months ago and they didn't give a stuff (presumably naively believing the Admissions Code on SEN would still apply to Academies....doh!!) .
However in the interests of full fact finding ....was Mossbourne the most convenient school for these children.. i.e is Mossbourne actually refusing SEN places to children within their catchment area ?

Rosie Fergusson's picture
Wed, 20/06/2012 - 19:24

Recent answer from Nick gibb re sen appeals....I haven't noticed the clause he claims to exist in post 2010 Academy Funding agreements....and I believe the Admissions code allows the Academy the right to refuse being named so he's wrong in suggesting the LEA is responsible for naming the academy or not.

"Local authorities are responsible for deciding whether to name an Academy or other school in a pupil's Statement. Where there are disagreements between a local authority and an Academy about whether an Academy should be named these can be referred to the Department for resolution. Fewer than 20 such cases have been referred to the Department over the past year.

This Government has sought to address the situation that existed in 2010, whereby pupils with Special Educational Needs did not enjoy the same rights if their parents wished them to attend an Academy as would have been the case if their parents wished them to attend a maintained school. Academies opened since the Academies Act 2010 have a clause in their Funding Agreement that means the process for appeals mirrors exactly that for maintained schools. If a local authority decides not to name an Academy in a statement, against the wishes of the parents/carers, the parents/carers of the child should, in almost all cases, be able to appeal to the First-tier Tribunal (Special Educational Needs and Disability). There are a very small number of Academies with older style funding agreements that do not reflect the changes we introduced in 2010. We would always expect these Academies to act reasonably, and we are considering whether any further action is required to ensure that every child with SEN is treated fairly."

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