Education Act 1996, section 326

Appeal against contents of statement

Part IV Special educational needs

[F517 (1)The parent of a child for whom a [F6 local authorityF6] maintain a statement under section 324 may appeal to the Tribunal—

(a)when the statement is first made,

(b)if an amendment is made to the statement, or

(c)if, after conducting an assessment under section 323, the [F6 local authorityF6] determine not to amend the statement.

(1A)An appeal under this section may be against any of the following—

(a)the description in the statement of the [F6 local authorityF6] ’s assessment of the child’s special educational needs,

(b)the special educational provision specified in the statement (including the name of a school so specified),

(c)if no school is specified in the statement, that fact.F517]

(2)Subsection (1)(b) does not apply where the amendment is made in pursuance of—

(a)paragraph 8 (change of named school) or 11(3)(b) (amendment ordered by Tribunal) of Schedule 27, or

(b)directions under section 442 (revocation of school attendance order);

and subsection (1)(c) does not apply to a determination made following the service of notice under [F518 paragraph 2AF518] (amendment by [F1 local authorityF1] ) of Schedule 27 of a proposal to amend the statement.

(3)On an appeal under this section, the Tribunal may—

(a)dismiss the appeal,

(b)order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c)order the authority to cease to maintain the statement.

(4)On an appeal under this section the Tribunal shall not order the [F6 local authorityF6] to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless—

(a)the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or

(b)in the proceedings the parent, the [F6 local authorityF6] , or both have proposed the school [F519 , orF519] F520 ...

[F521 (c)[F522 in the proceedings the child has proposed the schoolF522] (whether or not the parent, the local authority or both have also proposed the school).F521]

(5)Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.

Definitions used in section 326 7

parent

(1) In this Act, unless the context otherwise requires, “parent”, in relation to a child or young person, includes any person—

(a)who is not a parent of his but who has parental responsibility for him, or

(b)who has care of him,

Defined in s.576(1) · see it in the full Act
child

“child” means a person who is not over compulsory school age;

Defined in s.579(1) · see it in the full Act

“child” includes any person who has not attained the age of 19 and is a registered pupil at a school;

Defined in s.312(5) · see it in the full Act
local authority

“local authority” means—

(a)

a local authority in England;

(b)

a local authority in Wales;

Defined in s.579(1) · see it in the full Act
the Tribunal

(5) In this Part ..., “the Tribunal”, in relation to an appeal, means the Special Educational Needs Tribunal for Wales.

Defined in s.313(5) · see it in the full Act
special educational needs

“special educational needs”—

(a)

in relation to a child or person over compulsory school age but under 25 in the area of a local authority in England, has the meaning given by section 20(1) of the Children and Families Act 2014;

(b)

in relation to a child in the area of a local authority in Wales, has the meaning given by section 312;

Defined in s.579(1) · see it in the full Act
special educational provision

“special educational provision”—

(a)

in relation to a person in the area of a local authority in England, has the meaning given by section 21(1) and (2) of the Children and Families Act 2014;

(b)

in relation to a child in the area of a local authority in Wales, has the meaning given by section 312(4);

Defined in s.579(1) · see it in the full Act

(4) In this Act “special educational provision” means—

(a)in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local authority (other than special schools) . . ., and

(b)in relation to a child under that age, educational provision of any kind.

Defined in s.312(4) · see it in the full Act
school

(1) In this Act (subject to subsections (1A) to (1C) ) “school” means an educational institution which is outside the further education sector and the wider higher education sector and is an institution for providing—

(a)primary education,

(b)secondary education, or

(c)both primary and secondary education,

Defined in s.4(1) · see it in the full Act

Cases considering section 326 48

ER, R (on the application of) v London Borough of Hillingdon

[2014] EWCA Civ 1407 · 29 October 2014

The subsection gave a parent a statutory right of appeal against amendments to a special educational needs statement. That right engaged the Ombudsman exclusion. (see paras [13]; [17]; [31]) The subsection permitted an appeal concerning the assessed needs, specified educational provision and named school. It established that the suitability of the school named in the statement was within the tribunal’s jurisdiction. (see paras [13]; [21]; [30]-[31])

Dudley Metropolitan Borough Council v Shurvinton & Ors

[2012] EWCA Civ 346 · 21 March 2012Interprets

The Court confirmed that an appeal may concern the special educational provision specified in the statement, including the name of a school. The First-tier Tribunal therefore had jurisdiction over the conditional placement dispute (see paras [16], [39]-[43]). The Court treated the appeal provision as extending to a challenge concerning the special educational provision specified in the statement, including the school named. The conditional placement was therefore within the Tribunal’s jurisdiction (see paras [16], [36], [43]). The Court interpreted the appeal jurisdiction as covering the special educational provision specified in the statement, including the school to be named. A dispute over conditional school naming was therefore not merely a Part IX transport matter (see paras [39]-[42]).

Dean & Anor v East Sussex County LEA

[2005] EWCA Civ 323 · 22 March 2005Limits

Interprets the statutory appeal scheme for SEN statements. The scheme excludes a further Tribunal appeal against an amendment made pursuant to the Tribunal’s own order. (see paras [18]-[28]) Sets out the principal circumstances giving a parent a right of appeal concerning a SEN statement, subject to the statutory exclusions and construction adopted by the Court. (see para [18]) Cited only. Interprets the right of appeal on amendment. It does not extend to an amendment made by order of the Tribunal under section 326(3)(b). (see paras [21], [28] and [37]) Applies a separate appeal route where, after an assessment, the authority decides not to amend the statement. That route was available on the facts but was not used. (see paras [10], [18] and [27]) Interprets the scope of matters that may be challenged under an available appeal. Its broad wording does not create jurisdiction where section 326(1)(b) is inapplicable. (see paras [18] and [21]) Cited only. Applies to appeals concerning special educational provision, including the named school in a statement; it did not overcome the jurisdictional bar. (see paras [18] and [21]) Cited only. Interprets the express exclusions as part of a scheme designed to prevent nonsensical or second appeals. (see paras [20]-[28]) Confirms that amendments made under Schedule 27 paragraph 8 or paragraph 11(3)(b) are excluded from section 326 appeals. The latter exclusion supports the same result for a Tribunal-directed amendment under section 326(3)(b). (see paras [18], [22]-[28]) Limits appeals where amendment follows directions under section 442; the statute routes the substantive question through the school-attendance-order procedure. (see paras [18] and [22]) Applies the Tribunal’s appellate powers, including ordering an authority to amend a statement; the form of that amendment is determined by the Tribunal. (see paras [18]-[19] and [24]-[28]) Cited only. Applies the power to order amendment. An amendment made pursuant to that order is not appealable back to the Tribunal under section 326(1)(b). (see paras [19], [24]-[28] and [37])

28 more judgments, and what each says about section 326, are in the case-law panel in the full Act.

Amendments and notes

9 notes from legislation.gov.uk

Amendments

  1. F517S. 326(1)(1A) substituted (1.1.2002 (E.), 1.4.2002 (W.)) by 2001 c. 10, s. 10, Sch. 1 para. 19 (with s. 43(13)); S.I. 2001/2217, art. 5, Sch. Pt. II (as amended by S.I. 2001/2614, art. 4); S.I. 2001/3992, art. 5, Sch. Pt. II
  2. F6Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 7(2) (with Sch. 2 para. 7(4)(5))
  3. F518Words in s. 326(2) substituted (1.1.2002 (E.), 1.4.2002 (W.)) by 2001 c. 10, s. 10, Sch. 1 para. 20 (with s. 43(13)); S.I. 2001/2217, art. 5, Sch. Pt. II (as amended by 2001/2614, art. 4); S.I. 2001/3992, art. 5, Sch. Pt. II
  4. F1Words in Act substituted (5.5.2010) by The Local Education Authorities and Children’s Services Authorities (Integration of Functions) Order 2010 (S.I. 2010/1158), Sch. 2 para. 7(3) (with Sch. 2 para. 7(4)(5))
  5. F519Word in s. 326(4)(b) inserted (6.3.2012) by Education (Wales) Measure 2009 (nawm 5), s. 26(3), Sch. para. 2(a); S.I. 2012/320, art. 3(m)
  6. F520Full stop in s. 326(4)(b) omitted (6.3.2012) by virtue of Education (Wales) Measure 2009 (nawm 5), s. 26(3), Sch. para. 2(a); S.I. 2012/320, art. 3(m)
  7. F521S. 326(4)(c) inserted (6.3.2012) by Education (Wales) Measure 2009 (nawm 5), s. 26(3), Sch. para. 2(b) (as amended (5.5.2010) by S.I. 2010/1148, arts. 1, 5(2)); S.I. 2012/320, art. 3(m)
  8. F522Words in s. 326(4)(c) substituted (1.9.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 3 para. 17; S.I. 2014/889, art. 7(a) (with savings and transitional provisions in S.I. 2014/2270 (as amended (1.4.2015) by S.I. 2015/505) this amendment is subject to savings and/or transitional provisions, see the commentary.

Modifications

  1. C113S. 326(3) restricted (prosp.) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 36(6), 162 (with s. 159)