Q:

09.28 Are academies and free schools legally the same as maintained schools when it comes to SEN?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

A: SenseCheck

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  • 14 Feb 2022
  • Yes

    Complex

    Yes. CFA2014 SEN provisions apply to academies in the same way that they apply to maintained schools. CFA2014 places statutory SEN duties on academies just as it does on maintained schools. 

    For example, they can be the subject of a parental request for a placement with the same effect as for a maintained school (CFA s38(3)(c)) and have a duty to admit when named (CFA2014 s43(1) and (2)). 

    This is also now reflected in the latest Model Academy Agreement (which will apply to newly created academies but has no retrospective effect) at section 10. But academies based on older model agreements will include SEN provisions which pre-date the CFA2014. For those:

    1. The provisions in the particular funding agreement (which should be specifically checked, as they vary) govern the position in relation to a Statement and EA1996.
    2. For a CFA2014 situation (i.e. dealing with an EHCP) the provisions of the CFA2014 prevail over any conflicting provisions in the funding agreement (and there may well be a conflict in that the funding agreement may appear to allow the academy to, for example, refuse a placement in the face of CFA2014 obligation) but, 
    3. Provisions in the funding agreement which are consistent with the CFA2014 but which constrain the academy’s position can still be relied on.

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    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister