All schools, including academies, must comply with the Equality Act
'I am applying for a Secondary Academy place for my child who has a Statement of SEN. Are Academies under the same legal obligation to admit children with SEND as a priority? And what advice can you give parents of SEND children applying for a place at an academy to strengthen their application and if the application is refused - what should parents then do?'
Academies and the law
All schools, including academies, must comply with the Equality Act. The law regarding academies and statements of special educational needs is more complex and continues to develop. Academies are independent schools and so the law is slightly different. Academies are still publicly funded and must operate in accordance with the funding agreement they have with the Department for Education. This confirms which statutory provisions apply to the school.
The funding agreements can be overridden by changes in legislation. For example, all academies now have to comply with the latest Exclusion Guidance regardless of what it says in their funding agreement. This means that in practice academies now have to comply with most, if not all, of the SEN obligations that maintained schools do. Under the proposed Children and Families Bill all SEN obligations will apply equally to academies.
Children that have statements should not be considered for a secondary school place through the usual admissions process. Instead, the Local Authority (LA) and the parent should consider schools that might be suitable for the child well in advance of their anticipated transfer.
Parents should be given the opportunity to express a preference as to which school they want their child to attend. The LA must consider the parental preference and, if the LA agrees that the school would be suitable, then it should be named unless it would be an inefficient use of public resources, if substantial additional costs would be incurred due to travel, for example.
The LA must then issue an amended statement naming the secondary school it considers appropriate for the child. This must be issued no later than February 15th of the year in which the child is due to transfer to secondary school. Once the final amended statement has been issued, the parent has a right of appeal to the Special Educational Needs and Disability Tribunal (SEND). This is the best way to challenge the LA's choice of school if you do not agree with it. Any appeal must be lodged with SEND within a strict 2 months of the date of the covering letter sent with the final statement.
Both the LA and SEND can name an academy in the statement even if the academy objects. If named by the LA, the academy can ask the Secretary of State to intervene and it can ask the LA to reconsider. If the matter is decided by SEND, the academy must comply with the tribunal order.
Academies are legally bound to make the provision set out in the statement of any child on their school roll.
If a parent is concerned about their child's attendance at or admission to an academy school, they would be wise to seek legal advice at an early stage. It can become complex and time is often of the essence.