Update: education

The past year has been exciting for practitioners in the field of education law. The new rules governing the appeal process of a Statement of Special Educational Needs have bedded in, although the jury is still out on how the First-tier Tribunal (Special Educational Needs and Disability) (SEND) is coping with ongoing appeals.

The Lamb Enquiry has called for greater emphasis on parental rights and confidence in the system when dealing with children with special educational needs (SEN) and disabilities. In particular, the report recommends two statutory changes:

(1) parents will have the right to appeal against their child's statement if the local authority does not amend the statement following an annual review. This change will benefit those circumstances where the local authority knows that it should amend the statement; it is fairly obvious that it should but chooses not to knowing '“ primarily because of issues of funding '“ that the parent has no recourse against its decision; and

(2) to place a specific duty on Ofsted to report on the quality of education provided to children with SEN and disabilities.

On publication of the Lamb report, the education secretary, Ed Balls, announced that parents will have greater rights if they are not happy with the statement. This is a positive development because it will empower parents to ensure that objectives set for their children in the statement are attained. There is little doubt that the Lamb report will lead to a full review of the current system in place for special educational needs. Ed Balls has indicated that Ofsted will be charged with the responsibility of ensuring that inspections are such that they increase confidence for parents that their children are supported in the right way in SEN schools.

School admissions

2009 also saw the Supreme Court deliver judgment on R (ota E) v The Governing Body of JFS (1) & ors (JFS) [2009] UKSC 15. This case concerned an admissions appeal against the refusal of a place for a child at JFS school. The father of the child is Jewish by birth, and the mother is Jewish by conversion. The admissions policy of JFS gives priority to those who are Jewish as recognised by the Office of the Chief Rabbi (OCR). The mother was not recognised by the OCR as being Jewish and the child was therefore refused admission to JFS. The Supreme Court upheld the Court of Appeal's decision that the child was discriminated against on grounds of ethnicity. This is because the child did not receive a place as he was not recognised as Jewish because his mother was not recognised as Jewish, and therefore the court determined that discriminating on the ground that he was not Jewish amounted to direct racial discrimination. The motive for discrimination did not matter, i.e. that the motive in this case was theological.

Admissions continues to be a topical subject in light of the recession '“ the increasing number of parents wishing to seek admission for their children in the state sector and the competition to get children into the better schools. One interesting consequence of this is the rise in cases brought against parents who make fraudulent applications; in that they will use false addresses or other means to gain admission to the school of their choice. Local authorities have demonstrated that they are now quite prepared to prosecute on the basis of these fraudulent applications. Ian Craig, the chief school's adjudicator, published his report on this issue on 1 October 2009. In the report he raised concerns about fraudulent and/or misleading applications but noted that the law currently does not dissuade parents from lying on their applications to obtain places, as the only risk is that they will lose the place if they are found to have lied. No other remedy is currently available to local authorities and the parents therefore are put back in the position they would have been in had they not lied. It is, however, evident that the majority of parents want a fair and open system and it is a minority of parents that are prepared to go to the lengths of lying on application forms. It is also clear that schools and/or local authorities are taking their responsibilities one step further and seeking alternative ways of ensuring that the information provided by parents is true, by, for example, employing private investigators to verify the addresses provided by parents.

Parental expectation

One issue that has come to light recently is whether parents are a help or a hindrance in schools. In this age of consumerism, parents believe more strongly than ever that they are entitled to have a say in the way in which their child is educated at school. Parents want more information from teachers, expect a high level of communication in the technological era and are becoming more and more demanding on teachers and staff at schools. School complaints are increasing as a consequence of this changing attitude, and the time and effort taken up by teachers responding to these complaints has become a concern for the profession at large. Teachers and their unions will complain that they are being drawn away from teaching to focus on managing difficult parents. It will be interesting to see how this area develops over the next few years as there are signs that parents and parent groups are coming together in a bid to set up their own schools.

Burden of proof

The issue of the burden of proof in school exclusion cases has been around for some time. Exclusions from school have a serious impact on children and there have been many arguments put to the High Court about the appropriate standard of proof, particularly where a child may have been involved in an incident that may amount to a criminal offence. Recent case law has shown that the courts are not keen to impose a burden of proof higher than that of the balance of probabilities. In Re B (Children) (Sexual Abuse: Standard of Proof) [2008] UKHL 35, the House of Lords reiterated that the burden of proof in the context of care proceedings must be that of a balance of probabilities. The Lords addressed the issue of incidents amounting to a criminal offence and gave guidance on how decision makers should assess and give weight to the facts in determining the outcome. This case gives very clear guidance on this point when one considers that it concerned a sexual abuse allegation. Baroness Hale was clear when she said: 'I would go further and announce loud and clear that the standard of proof in finding the facts necessary'¦ is the simple balance of probabilities, neither more nor less. Neither the seriousness of the allegation nor the seriousness of the consequences should make any difference to the standard of proof to be applied in determining the facts.'

Further and higher education

The Office of the Independent Adjudicator for Higher Education (OIA) saw a significant change in leadership in 2009 when Rob Behrens took over as the independent adjudicator from Baroness Deech in May 2008. So far, there have been no successful judgments in the High Court against the OIA. There have been a number of challenges, all of which have failed. The two cases that went to a full hearing are Siborurema v OIA [2007] EWCA Civ 1365, and Arratoon v OIA [2008] EWHC 3125 (Admin). In both cases, the High Court found in favour of the OIA and neither claimant pursued the matter to the Court of Appeal.

In 2009, two cases have been granted permission to go to a full hearing before the High Court. Both cases are likely to be heard in or around April 2010. In the first case, the court granted permission because the OIA did not request a copy of the exam script to assist it in making its decision. The court reiterated that it was not concerned with academic judgment but took the view that without sight of the exam script it was not possible for the OIA to determine whether or not it had been properly marked. The second case concerns disability discrimination and raises an interesting jurisdictional issue. The question posed by the court in the permission stage was whether or not the OIA has the jurisdiction to determine issues relating to disability discrimination. Judge Hickinbottom said, in granting permission: 'The crucial issues it raises are: does the OIA have the 'jurisdiction' to make findings on discrimination, and, if so, ought it to have done so in the circumstances of this case?' The Disability Discrimination Act 1995 stipulates that disability discrimination claims must be challenged in the county court. However, section 18 of the Special Educational Needs and Disability Act 2001 gives SEND jurisdiction to make findings on disability discrimination.

Disability discrimination is a complex area of the law and if the court finds that the OIA does have jurisdiction to deal with disability claims it would necessarily require a change in their rules to ensure that any adjudicator dealing with disability claims has the requisite training to understand how the claim falls in law, and whether or not the complainant does indeed have a disability within the definition, and has been discriminated against as a result of that disability. There are a significant number of students who do complain about universities not making reasonable adjustments for their disabilities. It is evident that although universities do have specialist units to assess disability, the problems arise because the information relating to that disability, or indeed the reasonable adjustments agreed with the student, have not been disseminated to lecturers and tutors. For example, students that suffer from depression may be considered disabled within the definition, but no reasonable adjustments are made except to request that the student submits extenuating circumstances for coursework or examinations that may be affected. That is not a reasonable adjustment, particularly if the depression is severe.

The decisions in both these cases will provide a further insight into the court's desire to interfere with the OIA's decision-making powers. So far the courts have been very reluctant to do so.