|At the Tribunal|
|On 13 March 2018|
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(2) MRS E MANN
(3) MRS C GUSTAFSON
Transcript of Proceedings
|For the Appellant
||MR PETER OLDHAM
(One of Her Majesty's Counsel)
City and County of Swansea Legal Services
|For the First and Third Respondents
||MR RICHARD KEMBER
Unit 18 Neptune Court
|For the Second Respondent||MR RICHARD KEMBER
Breach of Contract
1. This appeal concerns claims by former teachers in Wales for SEN allowance payable under their contracts. The Employment Tribunal held that the conditions for entitlement were satisfied in each case, and accordingly, that the failure to pay SEN allowance was a breach of contract.
2. The Employment Tribunal erred in so concluding in two respects. First, by construing the conditions of entitlement in paragraph 25.2(d) of the Document so as to give no effect to the requirement that the setting of a teacher's work must be "analogous to a designated special class or unit" to qualify, the Employment Tribunal erred in law. Secondly, the Employment Tribunal erred in its approach to condition (iii) in concluding that the "unit or service" for the purposes of determining whether the claimants had "a greater involvement in the teaching of children with [SEN] than is the normal requirement of teachers throughout… the unit or service" was the whole education authority rather than the home tutoring service.
3. On a proper construction of the Document, and in light of the evidence, the Claimants are not entitled to be paid SEN allowance for the relevant periods because (a) home tutoring was not an analogous setting to a designated special class or unit; and (b) because they did not establish that they had a greater involvement in the teaching of children with SEN than is the normal requirement of teachers throughout the unit or service, when condition (iii) is properly understood and applied to the facts of their case.
4. The appeal is therefore allowed. Further, for the reasons explained in the judgment, their claims for breach of contract fail and are dismissed.
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
The legislative matrix
"125. (1) An order under section 122 may make provision about a matter only if the Secretary of State has –
(a) referred the matter to the School Teachers' Review Body under section 120, and
(b) considered their report".
Accordingly, there is no obligation on the Secretary of State to follow the recommendations of the Review Body but their report must be considered.
"Special educational needs allowance
25.1. A SEN allowance of no less than £2001 and no more than £3954 per annum is payable to a classroom teacher in accordance with this paragraph.
25.2. The relevant body must award a SEN allowance to a classroom teacher -
(a) in any SEN post that requires a mandatory SEN qualification;
(b) in a special school;
(c) who teaches pupils in one or more designated special classes or units in a school or, in the case of an unattached teacher, in a local authority unit or service;
(d) in any non-designated setting (including any PRU) that is analogous to a designated special class or unit, where the post -
(i) involves a substantial element of working directly with children with special educational needs;
(ii) requires the exercise of a teacher's professional skills and judgement in the teaching of children with special educational needs; and
(iii) has a greater level of involvement in the teaching of children with special educational needs than is the normal requirement of teachers throughout the school or unit within the school or, in the case of an unattached teacher, the unit or service."
"(1) … "school" means an educational institution which is outside the further education sector and the higher education sector and is an institution for providing -
(a) primary education,
(b) secondary education, or
(c) both primary and secondary education, …"
Section 19 deals with the exceptional provision of education in pupil referral units and provides that local authorities must:
"(1) … make arrangements for the provision of suitable … education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them."
At subsection (2), it provides:
"(2) Any school established … and maintained by a local education authority which -
(a) is specially organised to provide education for such children … and
(b) is not a county school or a special school,
shall be known as a "pupil referral unit"."
"312 (2) (a) … has a significantly greater difficulty in learning than the majority of children of his age,
(b) … has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age … or
(c) … is under compulsory school age and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of … that age."
"Special educational provision" is defined by s.312(4) in relation to a child in the area of a local authority in Wales as meaning:
"(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."
There are also provisions for identifying and assessing children with special educational needs at sections 321 to 324 Education Act 1996.
"All dedicated STF [specialist teaching facilities] teachers are entitled to be paid an SEN allowance as STFs are designated units or classes specifically for children and young people with SEN. These teachers only teach pupils with SEN. They are required to have appropriate experience and knowledge of SEN and in particular facilities are expected to have additional qualifications and training. The organisation of staff within the STF can differ from school to school but the base funding is for one teacher and two teaching assistants to groups of 5 to 9 pupils depending on the funding band of the STF. As well as providing separate classes as appropriate for pupils in small groups, STF teachers provide advice and support to the mainstream class teachers in relation to the teaching of the pupil when in a mainstream class".
The fact that a teacher had teaching assistants supporting the group of between five to nine pupils does not mean, as the Employment Judge appeared to conclude, that those teaching assistants were performing the role of teachers. They were not, as is common ground.
"They were able from their own experience and knowledge and qualifications as teachers to know whether a child that they taught had special educational needs" (paragraph 31).
"34. The third requirement and the contrast which needs to be made. The analogy. The comparator comes in. Is the normal requirement of teachers throughout the school or unit within the school or because there was no school here in the case of the unattached teacher such as the home tutors the unit of service. I reject the submission of the Respondents that that must mean the home tuition team. It is an irrational interpretation. It would offend common sense because it would mean that no home tutor could ever qualify for an SEN allowance. The 3 Claimants were spending the vast majority of their time with children with special education needs. What does the word 'service' mean? The service is the service that a Local Authority gives to children and must be given a wider interpretation. This wording wold make sense and be rational and give a logical interpretation which flows from what is the aim of this particular provision. If there is a need for assistance as background one looks to the report where the wording is not service it is authority. That is support for the proposition that a wider interpretation is appropriate and not the narrow one that is contended for by the Respondents. For that reason also I find that it is that wider interpretation is correct [sic]. The contrast is between what a teacher is doing for the vast majority or substantial amount of time compared to a teacher in the service of the Local Authority, not teaching pupils with special education needs a substantial amount of time. A clear distinction is the point and purpose of this provision because in the objective one has to look at what it intended by the parties in accordance with the Brogden principles, that is to reward teachers who spend a considerable and the majority of their time "substantial amount" of time with special education needs children and dealing with their situations."
"What revised criteria should be introduced for SEN allowances in light of the increased inclusion of pupils with SEN and disabilities in mainstream settings including in respect of unattached teachers working in alternative provision and within the existing cost basis whether the value(s) remain appropriate" (paragraph 2.1)
The Report deals with the award of SEN allowance at paragraphs 2.40 to 2.43 in the following terms:
"2.40. As set out earlier, we recognise that the inclusion agenda and other developments have led to an increase in the number of children assessed as having significant special educational needs being taught in ordinary classes in mainstream schools. As a result, the teaching and learning of these children is increasingly regarded as part and parcel of every teacher's core responsibilities. Given this is the case, our expectation is that allowances for those working in ordinary classes should continue to be the exception rather than the rule and be restricted to those whose predominant role is teaching pupils with special educational needs.
2.41. However, where a school or local authority structures its special educational provision so that some teachers are deployed in a way that is analogous to teachers in designated special classes or units, we believe that payment of an SEN allowance is appropriate.
2.42. We believe, therefore, that teachers in mainstream schools and unattached teachers should receive an allowance where they are teaching in a post that:
• involves a substantial element of working directly with children with special educational needs;
• requires the exercise of a teacher's professional skills and judgement in the teaching of children with special educational needs; and
• has a greater level of involvement in the teaching of children with special educational needs than is the normal requirement of teachers throughout the school or authority.
2.43. We believe that the provisions set out in paragraphs 2.41 and 2.42 above will cover the vast majority of situations in which it is appropriate for teachers working in non-designated settings to receive an SEN allowance. However, given the diversity of arrangements for making special educational provision, we are conscious that there may be other, exceptional circumstances where schools or authorities organise their provision in a different fashion but which still make demands on teachers providing special education which they consider to be equivalent to those placed on teachers in special schools or classes. In such instances, we believe that payment of SEN allowances should be at the discretion of the school or authority."
"Home tutors are, in effect, mainstream classroom teachers or perhaps, more accurately, analogous to mainstream classroom teachers who happen to teach pupils in a one to one environment outside the classroom. They are not required to teach any differently to a mainstream classroom teacher or have additional qualifications or experience."
Most teachers in mainstream classrooms do not qualify for SEN allowances.