Picking up the story from the previous post, I continue to examine the Hammersmith decision which holds a rich vein of authority and also examines the opaque nature of some of the statutory provisions.
Having navigated these statutory thickets, the judge observed:
52 What an obscure enactment this is.
53 The first part of regulation 11(3) is clear enough. It imposes a duty on a local authority to identify within each budget share a SEN-related amount, calculated by reference to the matters listed. I note this operates on a budget share as determined in accordance with Part 3 of the funding regulations. It does not itself require a SEN-related amount to be added to the budget share. Instead, the authority is required to flag up that part of the budget share related to SEN in the way it describes. However, the duty serves no obvious purpose under the funding regulations. It does not seem to be linked to any other provision of the regulations. What is it for?
54 The second part of reg. 11(3) enacts a statutory assumption, to be applied when determining the required SEN-related amount. The amount must be calculated “using a sum of £6,000 as the threshold below which [the school] will be expected to meet the additional costs of pupils with [SEN] from its budget share”. While I would not describe this as crystal clear, it does convey the idea that a certain amount of the additional costs of educating pupils with SEN are to be absorbed from the school’s budget share. Flowing from this is an implication that additional costs will be met by the local authority and that is certainly how it seems to work in practice.
55 Now, I know exactly what was intended by regulation 11(3) . Funding guidance shows the intended result is to require maintained mainstream schools to meet the first £6,000 of SEN-related costs for each child. However, it is arguable that what it actually does is expect schools to meet only the first £6,000 of all SEN-related costs during the funding period, rather than the first £6,000 for each pupil. The second part of regulation 11(3) seems to mirror the first part in referring to the “additional costs of pupils”, rather than, as it could have referred to, each pupil. While the Interpretation Act 1978 provides that unless the contrary intention applies “words in the plural include the singular”, it might be argued that this provision demonstrates a contrary intention.
56 However, no party has argued that regulation 11(3) should be construed so that a school is only expected to meet the first £6,000 of all SEN-related costs in a funding period. I therefore make no finding on this point. But the Department for Education may wish to bring forward clarifying amendments.
The judge also commented on mainstream schools which have reserved places for children with special educational needs:
57 Some maintained mainstream schools have reserved places for children with SEN. Neither these places (nor children occupying the places) attract an AWPU amount, in the sense described above, because the AWPU equation subtracts reserved places from pupil numbers ( reg. 13(2) ).
58 Funding of reserved places is dealt with separately by regulation 14(2) :
“In determining budget shares for primary or secondary schools maintained by the local authority with places which the authority have reserved for children with special educational needs, a local authority must include the sum of £10,000 for each place other than places for pupils in respect of whom a sixth form grant is payable and hospital education places.”
59 This amount clearly must be included in the school’s budget share whether or not the place is filled. Note the contrast between the language of regulations 13 and 14 , in that reg. 13 (the AWPU provision) operates by reference to numbers of pupils but regulation 14 , by contrast, operates by references to reserved places.
He also considered the position in relation to maintained special schools:
60 Maintained special schools also receive a budget share but, generally, the date by which their shares are to be determined is 31st March 2014 ( reg. 11(5) ). In determining the budget share, local authorities must “include the sum of £10,000 for each place” ( reg. 14(1) ). As with reserved SEN places in mainstream schools, funding is determined by reference not to pupil numbers but to places.
61 Regulation 23 concerns the re-determination of a school’s budget share if a pupil leaves or is permanently excluded from a maintained school. This does not permit re-determination of the budget share for a special school or in consequence of a child leaving a reserved place. But reg. 23 does provide for re-determination (reduction) where a child is permanently excluded from a maintained mainstream school or leaves to receive education at a school maintained by another local authority.
He the considered some other features of the funding regime:
62 I have not attempted to give an exhaustive account. It should be borne in mind that the regulations allow per pupil funding for maintained mainstream places to be increased, for example where there is “social deprivation” within the meaning of the funding regulations. There is also a procedure for the Secretary of State to alter the operation of regulation 11(3) (reg. 25) . Sixth form funding is often treated differently as well.
He observed how funding arrangements can change from year to year eg: The School and Early Years Finance Regulations 2014
63 The 2013 funding regulations only apply to the funding period of one year from 1 April 2014. The 2014 Regulations apply to the current year. These Regulations are not before me and so I cannot make any finding about them. However, they appear to me to have essentially the same structure as the 2013 funding regulations, as described above. It seems to me likely that the 2014 Regulations have the same implications, for section 9 purposes, as the 2013 Regulations.
He then turned to consider the Children & Families Act 2014
64 In England, Part IV of the EA 1996 is in the process of being phased out. Its replacement is Part 3 of the 2014 Act under which we have Education, Health and Care plans instead of statements of SEN.
65 At one stage, written submissions in these appeals suggested section 9 would not apply to the 2014 Act. That is not correct. The definition of “the Education Acts ” in section 578 of the EA 1996 has been amended to include Part 3 of the 2014 Act. That Part is now one of the Education Acts and so the exercise of powers and duties under Part 3 of the 2014 Act must have regard to the general principle in favour of parental preference expressed in section 9 EA 1996 .
66 In practice, however, section 9 may become less significant in school naming disputes because the statutory right to request a school, and the linked qualified duty to accede to a request, has been widened, as compared with Schedule 27 EA 1996 , to include non-maintained special schools and certain independent special schools (section 39(4) of the 2014 Act). The duty is avoided where a child’s attendance at the school would be incompatible with “the efficient use of resources” which may in some cases reduce the practical relevance of section 9 ( I note there is case law about cases in which both tests are to be applied).
The analysis of this case continues in the next post.