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							                              Quality. Efficiency. Value. Excellence.




Education: Academy and SEN
           Update
 London Boroughs Legal Alliance

            7 June 2011




                                            www.ashfords.co.uk
Key Contact
     SECTION 2




             Helen Tucker
             Partner
             Education


     +44(0)117 321 8078
     h.tucker@ashfords.co.uk




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Overall Context


 The Coalition agenda
   – Introduction of free market principles
   – Consumer (parent) choice and control
   – "Big Society"
 Funding
   – Comprehensive spending review / budget cuts
   – Budget cuts
 Changing Roles
 Groups




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Session overview - Academies


 Academy context
 Academies Act 2010
   – The current position
   – Role of Local Authorities in the conversion process
   – Practical Issues and overall impact for Local Authorities
 Education Bill 2011
   – Current status
   – Proposed expansion of the academy programme
   – Consultation
   – School land



                                                                 3
Session overview - SEN


 SEN – Overview
  – Responsibility of the Local Authority
  – Responsibility of the Academy Trust


 SEN Green Paper
  – Aims and aspirations
  – Core principles and the 5 Strands
  – Practical issues and comment




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Academies Act 2010


 Context
 Status
   – In force July 2010
   – Primary, secondary and special schools can apply to convert
 Local Authorities – role in the conversion process
   – Academy Orders to be provided to Local Authority (s4b)
   – Notification of LA where application to covert has not been approved (s5b)
   – Community Consultation – section 5 / DfE Guidance 1.8
       • Such persons as the Governing Body consider appropriate
       • On the question of whether a school should convert
       • Before or after the granting of an Academy Order


                                                                                  5
Academies Act 2010 cont'd


 Role of Local Authorities in the conversion process cont'd
   – Transfer of school surpluses (s7)
      • Local Authority must determine and pay to Academy Trust any surplus
      • Academy Conversions (Transfer of School Surpluses) Regulations 2010
      • 3 month from conversion date
      • 1 month to apply to Secretary of State for review (3 months to review)
   – Property Transfer Schemes (s8)
   – Land Transfer Schemes (Schedule 1)
      • Where land no longer used for a maintained school
      • For new schools




                                                                                 6
Academies – Land issues


 Land Transfer
   – Overall premise of transfer from landowner to Academy Trust, and transfer 'as is'
   – Differ s depending on the land ownership (often relates to status of the school)
   – Negotiation between the relevant parties / reply to requisitions
   – DfE Model Documents

 Potential issues
    DfE timescales / volume of schools
    Extent of land to be transferred
    Registered / Unregistered
    Public / private land / church land
    Rights of access / rights of way / shared use



                                                                                         7
Academies – TUPE obligations


 Transfer of Undertakings (Protection of Employment) Regs 2006
 Provision of Information (reg. 11)
   – Outgoing employer to provide Employee Liability Information
   – ET awards for breach (£500 minimum)
 Duty to inform and consult employee representatives (reg. 13)
   – Information to be provided by the outgoing employer (transferor)
   – Long enough before conversion to enable consultation
   – Information from the school (transferee) to the outgoing employer
   – Definition of 'measures' – a wide interpretation
   – Obligation to consult about measures 'with a view to reaching agreement'



                                                                                8
Academies – TUPE obligations cont'd


 Liability for breach (informing and consulting obligations)
   – Academy Trust jointly & severally liable for breaches
   – Max. award 13 weeks' actual pay per 'affected' employee
 Commercial Transfer Agreement
 Indemnities by outgoing employer and Academy
   – Breach of TUPE obligations
   – Pre and Post transfer liabilities (e.g. pay, awards relating to pre-transfer acts)
 Assets and Contracts
   – Contracts which relate to multiple schools




                                                                                          9
Academies – Role of Local Authority


 New Academy Trust
   – Restrictions on Local Authority influence (Articles of Association)


 Responsibilities of the Local Authority
   – Admissions coordination and ensuring fair access
   – SEN statementing
   – Home to school transport
   – School place planning




                                                                           10
Academies – the role of the Local Authority


   Services
    – Offering services to academies
    – Competition


 Overall Impact on Local Authorities?
    – Capacity / Resources in managing the process
    – Potential liabilities (e.g. breach of TUPE)
    – Meeting own obligations to schools
    – Securing future role – strategic?
    – Supporting schools to promote spread of effective innovation




                                                                     11
Education Bill 2011


 Current Status
   – Introduced on 26 January 2011, passed third reading 11 May 2011
   – Second reading in House of Lords on 14 June 2011


 Extension of academy programme (part 6 and schedules 11 & 14)
   – Presumption that new schools will be academies (sch 11)
   – Removal of requirement of specialism (cl.51)
   – Extension to 16-19 and alternative provision academies (cl. 52)




                                                                       12
Education Bill cont'd


 Foundation and Voluntary Schools – duties to inform and
  consult
   – introduces duty on the Secretary of State to consult the trustees, person(s) who
     appoint the foundation governors, and all appropriate religious bodies before
     making an Academy Order (cl.53, 54)
   – Such persons must be either provided with a copy of any subsequent Academy
     Order made, or informed of the reasons why such an Order has not been made
   – Extension of duty on Secretary of State to assess impact of the new academies
   – Extension of duty to consult re additional schools to these new academies (no
     need to consult twice if Local Authority consulted under s9 EIA 2006)




                                                                                 13
Education Bill cont'd


 Staff at academies with religious character
   – Requirement for 'reserved' teachers, who must not exceed 1/5 total teachers
     including principal
 Admissions
   – Schools adjudicator to be able to consider and determine eligible objections or
     referrals relating to admission arrangements (binding) (cl.62)
 Other proposals
   – Federated schools (cl.56)
   – Charges at Boarding academies (cl.59)
   – Transfer of Property, Rights and Liabilities (cl.57)




                                                                                 14
Education Bill cont'd


 Land (Schedule 14)
   – Significant additional powers to transfer publicly funded land
   – Part 1 - Local Authority land
   – Enables Secretary of State to make a scheme to transfer any local authority
     land to an academy proprietor where it is no longer needed for the school, and
     land identified by a local authority as a possible site for a new school
   – Requires Local Authorities to seek Secretary of State consent before
     disposing of or purchasing any existing or former school land (failure to do
     so can result in compulsory purchase)
   – Part 2 enables transfer of publicly funded land held by governing bodies,
     foundation bodies/trustees and voluntary schools once an Academy Order has
     been made.


                                                                                15
Education Bill cont'd


 Land (Schedule 14) cont'd
   – Part 3 – publicly funded land held for an academy. Note where trustees retain
     land for the purposes of an academy on conversion, they must give minimum 2
     years notice to the Academy Trust to terminate the academy's occupation.
   – If land is publicly funded, the Secretary of State can make a direction for transfer
     of the land, subject to payment of compensation for any private share.
   Other points:
   – Where a Local Authority wishes to apply to the adjudicator for a transfer to them
     of publicly funded land considered no longer required by a foundation or
     voluntary school, the LA must notify the Secretary of State, who may direct a
     transfer of the land to an academy.
   – Consents for disposition or change of use of playing fields


                                                                                    16
SEN - Academy Context


 SEN – overview of Local Authority duties
   – Identification and assessment of children with SEN, and making maintaining
     and reviewing statements of SEN
   – Monitoring SEN provision in schools, parent partnerships
   – Education Psychology provision
   – Home to school transport including SEN
   – Arranging SEN provision for pupils with statements
   – Conducting annual reviews of statemented children in academies
   – Individually assigned SEN resources for pupils with statements
   – Provision of Short Stay Schools or education for those no longer registered at
     an academy



                                                                                  17
SEN – Academy Context


 Duties of the Academy Trust
  – SEN Obligations as for maintained schools
  – To make provision for pupils on School Action and School Action Plus
  – Inform parents child has SEN and the SEN provision being made
  – Power for Secretary of State to direct compliance with SEN obligations
  – To have regard to the SEN Code of Practice
  – Where possible to ensure the pupil engages in the activities of the school with
    children who do not have SEN
  – To admit a child subject to a statement naming academy (subject to appeal)
  – Appoint a SENCO who is a qualified teacher and ensure they undergo training




                                                                                 18
SEN – Academy context


 Special academies
  – Since January 2011 Maintained Special Schools (performing well, or in
    partnership with a school which is performing well) can apply to become
    academies
  – Will receive funding equivalent to what they would have received from the LA as
    a maintained school to make the provision in SEN statements
  – No obligation to consult LA. DfE Q&A: "Special academies will wish to maintain
    close and collaborative relationships with local authorities, who are in effect
    commissioning their services on behalf of the children and young people for
    whom those local authorities hold a statutory responsibility. Conversion to
    academy status provides an opportunity to redefine the terms of the relationship
    between special schools and local authorities, with the special academy being
    more autonomous whilst operating in a culture of collaboration with local
    authorities".


                                                                                19
SEN Green Paper March 2011


 Background and context
  – 2006 Report of Education Select Committee
  – Brian Lamb's Report ‘Improving parental confidence in the SEN system’ 2009
  – Ofsted SEN and Disability Review 2010
  – Tickell Review of Early Years Foundation Stage
 Aims
  – To make the system clearer, more efficient, and integrate relevant services
  – To reduce bureaucracy, confusion and the possibility of children falling between
    the different systems
  – Make a less adversarial system




                                                                                  20
SEN Green Paper cont'd


 Core themes
  – Focus on outcomes
  – Integrated approach linking education, health and social care from birth – 25
  – Increased role/collaboration of local agencies and voluntary sector
  – Improved teacher training and CPD
  – Working closely with families
  – Parent Power: Inform and empower parents to take control of the support
  – Enable professionals to be flexible, use professional judgement
  – Testing by local 'Pathfinders' to investigate and establish best way to achieve
    key reforms




                                                                                    21
SEN Green Paper cont'd


 Introduction
   – Sets out an 'ambitious vision' for reform with wide ranging proposals
   – 'detailed proposals' for consultation
 Split into 5 Sections
   – Early identification and assessment
   – Giving parents control
   – Learning and achieving
   – Preparing for Adulthood
   – Services working together for families




                                                                             22
SEN Green Paper cont'd


 Early identification and assessment
   – Health and development review children 2-2.5 years
   – Integrated approach of health services (visitors), and EYS to assess
     development and identify support needs
   – Health Visitor Implementation Plan – government to recruit and train an
     additional 4,200 health visitors by 2015
   – Extension of free entitlement of 15 hours early education for disadvantaged 2
     year olds




                                                                                 23
SEN Green Paper cont'd


 Single assessment process and Plan
  – Single early years setting and school based category of SEN, replacing 'School
    Action' and 'School Action Plus'
  – Introduction by 2014 of single assessment process and an Education,
    Health and Social Care
  – 0-25 Plan from birth through school and FE/HE and into employment
  – Plan will allocate responsibility for provision and include 'commitment'
  – Provide same statutory protections for parents as current statement of SEN
  – Reduce statement process from 26 to 20 weeks
  – Decision to assess will still be based on statutory criteria – on what basis will the
    new criteria be drawn up?



                                                                                    24
SEN Green Paper cont'd


 Pathfinders
  – Local pathfinders explore replacement SEN assessment and statement
      • Improved multi-agency approach
      • Role of Third Sector?
  – Seek ways to speed up the current assessment process
 Independence of Assessment Process
  – Baroness Warnock October 2010
  – Perceived conflict of interest
  – Can Third Sector co-ordinate single assessments and bring greater
    independence?




                                                                         25
SEN Green Paper cont'd


 Independence cont'd
  – What incentives will there be for such organisations?
  – Does the Third Sector have the resources to ensure reports are prepared within
    the proposed 20 week deadline?
  – Administrative burden of present system
 Comments
  – Current issue of the operation of the three systems
  – No details as to how responsibility will be allocated or how the systems will
    become integrated
  – Accountability of the various aspects of service
  – Is it necessary to overhaul the statementing system?



                                                                                    26
SEN Green Paper cont'd


 Parent Control of support
   – Local Authorities to communicate a clear local offer
   – Personalised funding "greater" control over funding / "more" influence
   – Trained "key workers"
   – Transparent funding information
   – Parent entitlement to respite breaks
   – Clear right to express preference any state funded school, including academies
     and free schools (removal of bias towards inclusion)
   – LA's / health services to explore how to extend personalised funding
   – Restrictions on use of funding?




                                                                                27
SEN Green Paper cont'd


 Learning and Achieving – some examples
  – Argument that SEN label creates and maintains low expectations for pupil
    performance, and lack of appropriate support, hence single SEN category, and
    less identification of SEN
  – Clear guidance and training for teachers
  – Indicator in performance tables of progress of low attaining pupils
  – All maintained special schools in due course to be able to become academies
  – Parents/communities to be able to establish new special free schools
  – Additional funding for ITT to secure more placements in special schools
  – DfE scholarships for teachers and support staff to develop SEN practice
  – Outstanding special schools to apply to be Teaching Schools



                                                                              28
SEN Green Paper cont’d


 Preparing for Adulthood
   – Plan up to age 25
   – DWP to explore role of Disability Employment Advisers
   – Explore supported internships
   – Support for independent living
 Services Working Together for Families
   – Collaboration with health services through new local Health and Wellbeing
     Boards – joint analysis of community needs
   – DoH and GP pathfinders to look at ways of commissioning healthcare
   – Revised statutory guidance for all professionals
   – Review future training and role of educational psychologists


                                                                                 29
SEN Green Paper cont'd


 Dispute Resolution
  – New right for children to appeal if they feel they are not getting adequate
    support
  – Less adversarial: where LA's and parents disagree, always try mediation first
  – How will issues be resolved when they span more than one area of provision?
  – Not clear who will be held to account for failures in delivery
  – Tribunal System to remain – no simpler to present case
  – How will appeal process work? Note proposals include the involvement of
    significant numbers of agencies in both assessing and providing for SEN,
    including the voluntary sector – more scope for passing the buck?
  – More fair and transparent?



                                                                                  30
SEN Green Paper cont'd


 Funding
  – Can these proposals be realised in context of current spending review
  – Plan will include the 'Commitment' from all parties
  – Plan will be transparent about funding for the support
  – Effective integration of education, health and social care will require alignment
    of funding streams in relation to SEN provision
  – How will this be effected?
  – Impact of statutory duty to provide personal budget




                                                                                   31
SEN Green Paper cont'd


 Timeline
  – Consultation and expressions of interest from LA’s to pilot single assessment
    process and join Individual Budget Pilots from September
  – Pathfinders from September 2011 – testing proposals in local areas
  – Detailed plans by end 2011
  – Legislative changes to be taken forward from May 2012 at earliest
  – Key proposals in operation from 2014
 Concluding Thoughts
  – Can it meet its aims?
  – Responsibility on Pathfinders
  – What does the future look like under these proposals?


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Any Questions?
 SECTION 2




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