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Alternative educational provision under challenge

R(HA) v Governing Body of Hampstead School [2016] EWHC 278 Admin

Successful reported judicial reviews of decisions made by schools as to how to educate their pupils are relatively rare. R(HA), which concerned the transfer of one teenager to off-site provision, against his will, was one such case.

The Claimant was a teenager, due to sit his GCSEs, who was “transferred to off-site provision” at the start of his GCSE year. It seems the school was not happy with his behaviour or his performance (he had got 3 Ds, 3 Fs and a P at the end of Year 10, although this was better than he had done before) and sent him to a vocational training college for training in plumbing, plastering etc. as well as GCSE-equivalent qualifications in English and maths. He was so unhappy with this placement that he effectively dropped out of school altogether. He thought the off-site transfer was a punishment. The school did, in fact, rely on what they said was his poor behaviour, particularly during Yr 10, to justify the transfer, saying that it was necessary in order to improve his behaviour and to justify permanent exclusion.

The mechanism by which schools can transfer pupils to off-site provision is set out in s29A Education Act 2002 and in the Education (Education Provision for Improving Behaviour) Regulations 2010. S29A(1) provides that

“the governing body of a maintained school in England may require any registered pupil to attend at any place outside the school premises for the purpose of receiving educational provision which is intended to improve the behaviour of the pupil”

The Claimant took a point on improper delegation. The power is clearly vested in the governing body, not in any teacher. There was no minute of the governors actually taking any decision to delegate that authority to the Head Teacher. However, DfE Guidance issued in November 2014 makes it clear that the Head Teacher is able to exercise that authority, in the first instance at least, without reference to the governors, and the Court found this sufficient to allow the decision to be taken by the Head Teacher.

There was a further dispute of fact as to whether the Head Teacher had actually, in fact, taken the decision, or further delegated it to the Inclusion Manager at the school. On the facts, the Claimant’s challenge failed on this point. However, the judge may have taken a different view if the decision had not been taken, or at least firmly endorsed, by the Head Teacher. Given the way in which such decisions are often made in practice, especially in large schools, points on improper delegation may well arise again in future challenges of this type.

The Claimant did, however, succeed on two other points of challenge, which related to the notice which was supposed to have been given to his parents of the reasons for his transfer and to the requirement to keep his progress under review (in fact, he was making no progress as he was not attending at all). The judge said at [32] that:

“Section 29A(1) of the 2002 Act requires that off-site educational provision must be "intended to improve the behaviour of the pupil". This plainly requires that individual consideration must be given to the needs of the particular pupil and how the particular off-site provision is likely to improve the behaviour of the pupil in question. This implies (a) an assessment of the pupil's behavioural needs, (b) an assessment of the provision required to meet those needs, and (c) an assessment of why the proposed off-site provision can meet the assessed needs. These are the very questions that must be addressed in the notice required under the regulations.”

The rationale for this requirement, he said, was that, like all duties to give reasons, is promotes sound decision-making.

The school is also required to conduct regular reviews, which should be “frequent enough to provide assurance that the off-site education is achieving its objectives and that the pupil is benefiting from it” (DfE Guidance on Alternative Provision, 2013). The school’s submission that there was no need to conduct such reviews where the pupil was not attending at all was roundly rejected. The judge commented at [45] that

“the fact that a child is so unhappy that they have absented themselves from alternative educational provision altogether may, in some instances at least, be a material factor to be taken into account in a review. Whilst recognising the need to maintain the integrity of the system of alternative placements, it must be recognised that there could be cases in which a re-evaluation of the child's best interests might be called for”

The school’s decision to transfer the Claimant to off-site provision was quashed and the governing body was mandated to reconsider it, with the judge making clear that until that reconsideration had taken place, he had to be re-admitted to the school.

While reported judicial reviews of decisions such as this are relatively rare, many parents will be familiar with schools seeking to place their children in alternative provision. They may also be concerned that, according to government research carried out in 2011-12, only 1.3% of children in alternative provision achieved 5 or more GCSEs at grades A*-C. The decision in HA shows that challenges to these decisions can be successful. Where schools have not used the proper process, the Courts are willing to call them to account.


Ross Beaton / 10th Mar 2016


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