Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER

Case No.  HS/2716/2010 HS/2702/2011

 

 

Before: Upper Tribunal Judge Rowland

 

 

Mr David Wolfe QC (instructed by the Equality and Human Rights Commission for ML and by Leigh Day & Co. for SB) appeared for the Appellants

Mr David Lawson (instructed by Stone King LLP) appeared for Tonbridge Grammar School

Mr Clive Rawlings (instructed by the Council) appeared for Kent County Council

Mr Peter Oldham QC (instructed by Stone King LLP) appeared for West Bridgford Academy

Mr Jonathan Auburn QC (instructed by the Council) appeared for Nottinghamshire County Council

 

 

Decisions:

 

In ML v Tonbridge Grammar School, it is directed that:

(a) Kent County Council be formally substituted as the respondent to the proceedings before the Upper Tribunal in place of the governing body of Tonbridge Grammar School (although Tonbridge Grammar School is conducting the case on behalf of Kent County Council); and

(b) the substantive appeal be listed for hearing as soon as possible.

 

In SB v West Bridgford Academy, the appeal is allowed to a limited extent.  The decision of the First-tier Tribunal dated 1 August 2011 is set aside and there is substituted a decision directing that:

(a) Nottinghamshire County Council be substituted for the governing body of West Bridgford School as a respondent to the proceedings before the First-tier Tribunal; and

(b) subject to any further direction by the First-tier Tribunal, West Bridgford Academy must inform the First-tier Tribunal within one month of the date this decision is sent to its solicitors whether it wishes to remain a respondent in the proceedings before the First-tier Tribunal.

 

 

REASONS FOR DECISIONS

 

1. These appeals raise the question of what happens to a disability discrimination claim brought against the governors of a maintained school if the school is converted into an academy under the Academies Act 2010 before the claim is determined.  Is the claim extinguished or does it continue and, if it continues, does it continue against the academy or against the local authority that formerly maintained the school? 

 

2. The issue being a procedural one, it is unnecessary to set the facts out in detail, save for the procedural history.

 

3. In ML v Tonbridge Grammar School, ML brought a claim under section 28I(1) of the Disability Discrimination Act 1995 (“the 1995 Act”) against the governing body of Tonbridge Grammar School in which she alleged there had been discrimination against her daughter in failing to make reasonable adjustments in respect of examination arrangements.  Her claim was dismissed by the First-tier Tribunal but she appealed to the Upper Tribunal.  In the course of the written submissions, the school (to use a neutral term) informed the Upper Tribunal that it had ceased to be a maintained school and had become an academy, still known as Tonbridge Grammar School, with effect from 1 January 2011.  It argued that, by virtue of paragraph 5 of Schedule 1 to the Education Act 2002, the governing body against whom the claim had been brought had been dissolved and that, by virtue of paragraph 7 of Schedule 22 to the School Standards and Framework Act 1998, its liabilities had passed to the local authority.  It was said –

 

“Since there is no maintained school the liabilities in this case have passed to the local authority.  The company which conducts Tonbridge Grammar School (the ‘Academy Trust’) has indemnified the local authority of relevant liabilities pursuant to an agreement between the local authority the Governing Body of Tonbridge Grammar School (the predecessor maintained school) and the Academy Trust.  Pursuant to such indemnity the Academy Trust has the exclusive right to conduct relevant claims brought by a third party.”

 

The Appellant replied that the provisions of paragraph 5 of Schedule 1 to the 2002 Act did not apply and that the claim was not affected by the conversion of the school into an academy.

 

4. In SB v West Bridgford Academy, SB brought a claim under either section 28I(1) of the 1995 Act or paragraph 3 of Schedule 17 of the Equality Act 2010 or both, depending on the date on which relevant events occurred (see articles 7 and 15 of the Equality Act 2010 (Commencement No. 4, Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010 (SI 2010/2317)), against the governing body of what was then West Bridgford School.  She alleged discrimination against her son in respect of the arrangements for a skiing trip on which the school had decided her son should not go.  The matter was listed for hearing before the First-tier Tribunal on 18 April 2011 but, at the hearing, the First-tier Tribunal was informed that the school had ceased to be a maintained school and had been converted into an academy, known as West Bridgford Academy.  The First-tier Tribunal added West Bridgford Academy as an additional party to the proceedings and then adjourned the hearing and directed that there should be determined as a preliminary issue the question whether the First-tier Tribunal still had jurisdiction to hear the claim.  On 1 August 2011, it struck out the claim against the governing body of West Bridgford School and West Bridgford Academy but joined Nottinghamshire County Council as a respondent in the proceedings, giving it until 26 August 2011 in which to apply to set aside the order since it had not previously been involved in the proceedings. SB appealed to the Upper Tribunal with the permission of the First-tier Tribunal and the support of Nottinghamshire County Council, which has pointed out that it has always supported SB in this matter and had advised West Bridgford School against the action that is claimed to have been discriminatory.

 

5. On 20 October 2011, I directed that the question whether Tonbridge Grammar School was the correct respondent in ML’s case and, if not, whether Kent County Council should be substituted for it, should be dealt with as a preliminary issue to be heard at the same time as the appeal in SB’s case and I gave Kent County Council an opportunity to take part in the proceedings.  Unfortunately, there was some delay in listing the case for hearing.

 

6. I am very grateful to all counsel for their helpful submissions.  They have ranged over a wide area but, in the end, the case turns on a narrow point of construction.

 

7. The duty not to discriminate in relation to the provision of education in schools is imposed by both the 1995 Act and the Equality Act 2010 on the “responsible body”, which is the governing body or the local authority in respect of maintained schools and the proprietor in respect of independent schools, including academies (see schedule 4A to the 1995 Act and section 85(9) of the Equality Act 2010).  It follows that claims brought before the First-tier Tribunal under those statutes must be brought against the relevant responsible body.

 

8. The Academies Act 2010 provides that a maintained school may be “converted into” an academy.  Previously, it had been necessary to discontinue the maintained school under Part 2 of the Education and Inspections Act 2006 and then create a new academy.  Nothing in the Academies Act 2010 expressly says what happens to the governing body of the maintained school upon conversion.  It does not provide that it is converted into the governing body of the academy.  Indeed, the Act makes no mention of an academy having a governing body.  However, the funding agreements (which are Academy agreements for the purposes of the Act) entered into by the Secretary of State with the Academy Trusts for each of the schools involved in these proceedings both provide that the academy will be governed by a governing body who are the directors of the Academy Trust, which is in turn a charity incorporated as a company limited by guarantee (see section 12 of the Act) and is the proprietor.  In each case, article 48 of the Articles of Association of the company provided that the governors of the maintained school would be governors of the academy for as long as they would have been governors of the maintained school.  On the other hand, some such governors might have resigned upon the conversion and, in any event, in each case further governors were to be appointed or elected from the outset.

 

9. Mr Oldham and Mr Lawson for the schools argue that the governing body of each of the maintained schools has been dissolved upon the school being converted into an academy, either by implication or under paragraph 5(1) of Schedule 1 to the Education Act 2002.  If it has been dissolved under paragraph 5(1) of Schedule 1 to the Education Act 2002, it is common ground that the liabilities of the governing body have been transferred to the appropriate local authority under paragraph 7 of Schedule 22 to the School Standards and Framework Act 1998, as was decided by the First-tier Tribunal in SB’s case.  However, if the governing body has been dissolved through any other mechanism, Mr Oldham and Mr Lawson submit that the claim against it has been extinguished.

 

10. Mr Wolfe for the claimants, supported by Mr Auburn and Mr Rawlings for the local authorities, submits that the governing body of each of the maintained schools has not been dissolved but has been converted into the proprietor of the academy.  In particular, Mr Wolfe argues that paragraph 5(1) of Schedule 1 to the Education Act 2002 does not apply because the school has not been “discontinued”.

 

11. Paragraph 5 of Schedule 1 to the Education Act 2002, as in force immediately after amendment by the Academies Act 2010, provides –

 

“5.(1) If the school is discontinued, the governing body are dissolved by virtue of this paragraph –

(a) on the discontinuance date, or

(b)  on such later date as the Secretary of State (in relation to England) or the National Assembly for Wales (in relation to Wales) may specify by order made before the discontinuance date.

 

  (2) In this paragraph “the discontinuance date” means –

(a)  in relation to a school in England, whichever of the following is relevant –

(i) the date on which proposals for discontinuing the school are implemented under Part 3 of Schedule 2 to the Education and Inspections Act 2006,

(ii)  the date on which the school is discontinued under section 30 of the 1998 Act,

(iii)  the date specified in a direction given under section 17(1) or 68(1) of the Education and Inspections Act 2006, or

(iv)  the date on which a local authority are required to cease to maintain the school under section 6(2) of the Academies Act 2010;

(b)  in relation to a school in Wales, …”

 

12. Mr Wolfe is correct in submitting that paragraph 5(1) applies only where a school is “discontinued” and he is also correct to say that there is nothing in the Academies Act 2010 to suggest that a maintained school is “discontinued” when it is converted into an Academy.  However, although one might possibly criticise the drafting, it seems to me to be clear that, in inserting head (iv) into paragraph 5(2)(a), the draftsman of the Academies Act 2010 was intending it to implied that, for the purpose of paragraph 5(1), a maintained school is to be treated as “discontinued” when it ceases to be maintained by virtue of section 6(2) of the Academies Act 2010, even though it would not otherwise be.  Otherwise, head (iv) serves no obvious purpose.  Mr Wolfe suggested that head (iv) was inserted in case the governing body of a maintained school wished to discontinue the school under the provisions in the Education and Inspections Act 2006 as well as converting it into an academy created under the Academies Act 2010.  However, I doubt that such a process is possible and the draftsman plainly did not have any such process in mind because the heads are alternatives and head (iv) is not substituted for the head that would otherwise be appropriate.  In the absence of any other consideration, the parliamentary intention seems clear enough.  Moreover, as Mr Oldham submitted, there is nothing outlandish about liabilities incurred by maintained schools being transferred either to local authorities or to maintained schools. 

 

13. On the other hand, Mr Wolfe’s submission that it would have been more appropriate for liabilities in respect of disability discrimination claims to be transferred to the responsible body of the academy where a school is converted into an academy has some force and causes me to doubt that the draftsman of the Academies Act 2010 had in mind claims in respect of disability discrimination when making provision for the transfer of liabilities.  I might therefore have been persuaded to regard the drafting as simply defective and not to read into paragraph 5(2)(a)(iv) of Schedule 1 to the Education Act 2010 the implication I consider it clearly to carry, or I might have declined to accept the concession as to the applicability of paragraph 7 of Schedule 22 to the School Standards and Framework Act 1998, had I been convinced by the arguments of Mr Wolfe, Mr Auburn and Mr Rawlings that it could not have been intended by Parliament that liability for disability discrimination would be transferred to a local authority because it would emasculate the disability discrimination legislation and give rise to a breach of Article 6 of the European Convention on Human Rights.

 

14. My reasons for not accepting those arguments have required some consideration of the nature of the remedies available in the First-tier Tribunal and of the implications of being a party to the proceedings or at least having had the opportunity of being a party.

 

15. Section 28I(3) and (4) of the Disability Discrimination Act 1995 provides –

 

“(3) If the appropriate tribunal considers that a claim under subsection (1) is well founded –

(a)  it may declare that A has been lawfully discriminated against; and

(b)  if it does so, it may make such order as it considers reasonable in all the circumstances of the case.

  (4) The power conferred by subsection (3)(b) –

(a)  may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person concerned of any matter to which the claim relates; but

(b)  does not include power to order the payment of any sum by way of compensation.”

 

16. Paragraph 5 of Schedule 17 to the Equality Act 2010 is in similar terms.  It provides –

 

“5(1) This paragraph applies if the Tribunal finds that the contravention has occurred.

  (2) The Tribunal may make such order as it thinks fit.

  (3) The power under sub-paragraph (2) –

(a)  may, in particular, be exercised with a view to obviating or reducing the adverse effect on the person of any matter to which the claim relates;

(b)  does not include power to order the payment of compensation.”

 

17. Despite the slightly different wording, I do not understand any change in the powers of the tribunal to have been intended or effected.

 

18. The Code of Practice for Schools, issued by what was then the Disability Rights Commission in 2002, includes a section headed “Redress and Conciliation in England and Wales” which part of the document is less a code of practice than a now somewhat out-of-date explanation of what is available.  It says of the powers of what is now the First-tier Tribunal –

 

“Remedies

If a claim of unlawful discrimination is successful, SENDIST can make a declaration that a child has been unlawfully discriminated against, and it can order any remedy it thinks reasonable against the responsible body, with the exception of financial compensation. Examples of the kind of orders that SENDIST might make are:

·       disability training for staff;

·       the preparation of guidance for staff on combating disability discrimination;

·       meetings between an LEA equal opportunities officer, parents, the pupil and the school to review what reasonable adjustments (short of adjustments to the physical premises or provision of auxiliary aids) might be required;

·       the review or alteration of school or LEA policies, for example, those that prevent visually impaired pupils going into the science laboratory, those that prevent disabled pupils going on certain school trips, and anti-bullying policies so that they deal with bullying on the grounds of disability;

·       additional tuition to compensate for missed lessons (such as science lessons in the example above);

·       the relocation of facilities (short of requiring an adjustment to the physical premises);

·       the admission of a disabled pupil to an independent school (where the school had previously refused) or their admission on the same terms as pupils who are not disabled;

·       additional tuition for a temporarily excluded pupil to enable the pupil to catch up on education missed due to discrimination;

·       a formal written apology to a child.”

 

19. What is submitted by Mr Wolfe is that, when a school is converted into an academy under the Academies Act 2010, it is effectively the same institution with, in particular, the same staff.  There is in those circumstances, he submits, no reason why the right of action in respect of discrimination should not remain against the institution and why the same remedies should not be sought from that institution.  On the other hand, the effect of the right of action becoming one to be claimed against a local authority means that the “coercive” remedies, as opposed to a declaration, become unobtainable or pointless.  He submits that that cannot have been intended.

 

20. I accept one premise upon which that submission is made.  It would not be appropriate to make any of the envisaged orders (i.e., orders other than a declaration) against a person or body that was not currently the responsible body.  (There is in any event no question of an order to admit a pupil to a school in a case where a maintained school has been converted into an academy because there are other “appeal arrangements” for admissions in respect of both types of school (see section 28K of the 1995 Act and paragraph 13 of Schedule 17 to the Equality Act 2010).)

 

21. I also have some doubt as to whether it would be appropriate to make any of the envisaged orders, other than a declaration or an order requiring a formal written apology to be made, against a school if the claimant’s child had left the school, because the claimant would not then have sufficient interest to enforce the order.  It seems to me that the words “on the person” in what are otherwise words of inclusion in both section 28I(4)(a) of the 1995 Act and paragraph 5(3)(a) of Schedule 17 to the Equality Act 2010 make it plain that Parliament had in mind the making of orders that would prevent further unlawful discrimination in relation to the particular child concerned. 

 

22. On the other hand, a declaration does not require enforcement and an order for an apology – whether to the child or, as the First-tier Tribunal might consider more appropriate, to the parents – may have a wider purpose than merely preventing further discrimination against he child in question.  In this context, an apology must include an acceptance that the action or omission did amount to unlawful discrimination, implying or explicitly conveying an assurance that there will not be a repetition.  To the extent that an apology is an acceptance that an act or omission has been unlawful, an order that a school apologise can be regarded as part of the vindication of the claimant.  To the extent that an apology is also an assurance as to future conduct, an order that there be an apology gives teeth to the declaration.

 

23. However, if the governing body of the maintained school has ceased to exist and its liabilities have been transferred to the local authority, an order for an apology is inappropriate because an “apology” by a local authority would not add anything to a declaration.

 

24. Mr Oldham and Mr Lawson submit that, if a claim survives at all upon a school being converted into an academy, it is enough that the claimant can be vindicated through a declaration and it does not matter that other orders cannot be made.  I am not persuaded that the vindication of a claimant is the only, or even the main, purpose of the legislation.  The right of appeal to the First-tier Tribunal is, in my judgment, intended to be a means of improving practice in schools with a view to eliminating disability discrimination against all pupils and the Act expressly contemplates improvements being made for the benefit of the child concerned in litigation before the First-tier Tribunal.

 

25. On the other hand, I do not accept Mr Wolfe’s submission that it is necessary for the First-tier Tribunal to have the power to make orders against an academy in order to achieve the broader aim.

 

26. Orders of the First-tier Tribunal generally take effect simply because responsible bodies behave responsibly and comply with orders.  There are means of enforcement but resort to them should be unnecessary.  The Secretary of State has a role under section 28M of the 1995 Act, sections 496 and 497 of the Education Act 1996 (as applied by section 87 of the Equality Act 2010) and, in the case of academies, through the enforcement of obligations under funding agreements.  Counsel expressed some scepticism about the effectiveness of these enforcement mechanisms but they ought to be effective where there has been a clear failure to comply with an order of the First-tier Tribunal.  If they are not effective, then it seems to me that the order of the First-tier Tribunal would provide a platform for launching judicial review proceedings in the High Court (which could be transferred to the Upper Tribunal) against either the responsible body or the Secretary of State or both.

 

27. But an obligation to take appropriate action may also be imposed by a declaration, or even a mere finding, made in proceedings in which the responsible body has been a respondent or has otherwise had an opportunity to take part.  A declaration or finding that, for instance, a policy was unlawful or inadequate would imply an obligation to amend the policy and would, in practice, be enforceable through the same mechanisms as an order, if a responsible body chose not to accept the obligation.  Thus, if I am right that a specific order, say, to amend a policy should not be made in a case where the claimant no longer has a child at the school, it may nonetheless be the effect of a decision in proceedings against a responsible body of that school that the responsible body would be placed under an obligation, owed in practice to other parents and children, to amend the policy.  (Although proceedings before the First-tier Tribunal in these types of cases are generally in private, it is open to the parents, subject to any direction by the First-tier Tribunal, to publish the decision if they wish to do so in order to influence the future conduct of the school, since section 12 of the Administration of Justice Act 1960 does not apply.)

 

28. The same approach can be applied if a maintained school is converted into an academy and the liabilities of the responsible body of the maintained school are transferred to the local authority, provided the responsible body of the academy has had an opportunity to take part in the proceedings. A person or body cannot generally be regarded as bound by findings made in proceedings in which he, she or it has not been able to play a full part.  However, it is the opportunity to participate that is vital.  If an opportunity is offered but declined, the person or body cannot complain if adverse findings are relied upon by the Secretary of State in exercising his statutory or contractual powers or by parents bringing judicial review proceedings.

 

29. Moreover, the responsible body of an academy cannot avoid an issue being investigated by the First-tier Tribunal merely by refusing to participate in the proceedings, even if there is no contest between the other parties.  Mr Auburn made it plain that, if it were the respondent in SB’s case, Nottinghamshire County Council would concede that there had been unlawful discrimination by West Bridgford School and he submitted that that would be unfair to the claimant who would not have a real vindication of her position and would be deprived of the opportunity to have a respondent answer her allegations.  Mr Lawson, addressing that argument in his reply, submitted that that was to confuse the decision with the process.  I agree.  Even if Nottinghamshire conceded the case and the First-tier Tribunal accepted the concession, the claimant would be vindicated by the First-tier Tribunal’s decision.  That would be no less so if the academy refused to participate in the proceedings. 

 

30. It is true that, under rule 29 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008/2699), the First-tier Tribunal may make a consent order without reasons, but it may make a consent order “only if it considers it appropriate”, which requires it to address its mind to the merits of the case.  It makes its decision in the light of its view of the merits, not merely because there has been a concession.  Furthermore, the First-tier Tribunal may give reasons even if it does make a consent order.  Bearing in mind that one purpose of this legislation is to secure improvements in practice, it seems to me that the First-tier Tribunal ought generally to give reasons for a consent order in any case where a concession by a local authority does not involve an acceptance by the academy that its predecessor erred.  This may be particularly appropriate where a parent still has a child in the school and wishes the First-tier Tribunal to express its reasons in a way that gives guidance specifically for the purpose of avoiding a repetition of unlawful discrimination. In order to make sufficient findings to enable it to give worthwhile guidance, upon which the parent or the Secretary of State could rely for the purposes of enforcement, the First-tier Tribunal is entitled to call for further evidence and, under rule 16 of the 2008 Rules, may issue a summons or an order for that purpose if a direction under rule 5(3)(d) proves inadequate.  But it should not come to that.

 

31. Rule 9(2) of the 2008 Rules gives the First-tier Tribunal a very broad power to add persons or bodies as respondents to proceedings, although a person or body should not, in my judgment, be added as a respondent without their consent unless the law requires it.  Thus, even if a local authority is substituted for the dissolved responsible body of a maintained school under rule 9(1)(b) as a respondent in a case where the maintained school has been converted into an academy, there is no reason why the responsible body of the academy should not be added as a second respondent if it consents.  That would not expose the responsible body of an academy to the kind of orders that might have been made under the 1995 Act or the Equality Act 2010 against the responsible body of the maintained school had the conversion not taken place.  However, it would confer on the responsible body of the academy the procedural powers, rights, duties and obligations of other parties, including the right fully to participate in the proceedings, the right to appeal and the right to, or a liability for, costs in the event of there being unreasonable conduct in the proceedings.  Rule 9(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) confers a similar power on the Upper Tribunal to add respondents in proceedings before the Upper Tribunal.

 

32. Being added as a respondent is not the only way the responsible body of an academy might take part in the proceedings.  It might merely co-operate with a local authority, while the local authority conducts the case or it might, as Tonbridge Grammar School has done, agree with the local authority to conduct the local authority’s case.  In such cases, there is no need for the academy to be added as a second respondent. 

 

33. However, walking away from the case should not be regarded as a responsible option, given that the purpose of the legislation is to enable the First-tier Tribunal to examine an allegation of discrimination with a view to giving an authoritative decision as to whether the approach of a school needs to be modified.  Mr Auburn submitted that West Bridgford Academy’s attitude was consistent with Nottinghamshire County Council’s case that the predecessor maintained school had failed to engage with the local authority in relation to the alleged discrimination.  Mr Oldham resisted the suggestion that West Bridgford Academy was seeking to walk away from this case, but he had no instructions as to the way in which the Academy considered that it might engage with the First-tier Tribunal.  I make no finding adverse to the academy, because it has not hitherto been given an opportunity to consider whether to be joined as a second respondent. 

 

34. Academies are unlikely to wish to gain a reputation for not taking seriously their duties under the 1995 Act and the Equality Act 2010 and I imagine that the Secretary of State will take a dim view of those that do so.  If the relevant personnel and the policies have not changed significantly upon conversion, the academy is likely to wish its staff’s approach to be vindicated, not least because they will wish to know that they are entitled to take the same approach the next time that the issue arises.  If, upon reflection, it considers that there was unlawful discrimination, it ought to be keen to make it clear that the same approach will not be taken by the academy in the future.  If it refuses to take part in the proceedings, an academy will, as Mr Oldham recognised, have to accept that its staff and policies may be criticised.  It will, of course, be open to the First-tier Tribunal, having considered the parties’ views, to direct that copies of its decision be sent to the governors of the academy and, if it thinks it necessary, also to the Secretary of State and, as I have said, it will be also open to the parents to give any criticisms greater publicity.

 

35. What role a local authority respondent plays in proceedings will depend on the circumstances.  In SB’s case, Nottinghamshire County Council will no doubt wish to make its position plain in a written response to be made when the First-tier Tribunal so directs.  It may also supply relevant documents to the First-tier Tribunal.  However, as matters stand, it may be unnecessary for it to take any further active part in the proceedings, particularly if West Bridgford Academy is added as the second respondent.

 

36. In ML v Tonbridge Grammar School, it is necessary only formally to substitute the local authority as the respondent in place of the governing body of the discontinued maintained school.  Since the school is in fact already conducting the case on the local authority’s behalf, there is no need for the school to be added as an additional respondent and the substitution makes no practical difference to the case.

 

37. In SB v West Bridgford Academy, the First-tier Tribunal was right to take the view that the relevant liability had passed to the local authority and, although the substitution of parties under rule 9 might have been more appropriate than striking out under rule 8, that is mainly a matter of language.  However, in my judgment the First-tier Tribunal did err in law in not making it plain to West Bridgford Academy that the fact that the liability had passed to the local authority did not mean that the academy could not remain a party and that it might be in its interests or the public interest for it to do so.  Accordingly, I substitute for the First-tier Tribunal’s decision the decision set out above.  I leave to the First-tier Tribunal the making of further case management directions in the light of the Academy’s response.

 

38. Finally, I should record that my attention was drawn to amendments made by section 63 of, and paragraphs 1, 2 and 15 of Schedule 14 to, the Education Act 2011, with effect from 1 February 2012.  The general effect of the amendments is that paragraph 7 of Schedule 22 to the School Standards and Framework Act 1998 no longer applies where there has been “a dissolution by virtue of paragraph 5(2)(a)(iv) of [Schedule 1 to the Education Act 2002] (dissolution following Academy order)”.  Instead, more-or-less equivalent provision is made by paragraph 13 of a substituted Schedule 1 to the Academies Act 2010, which differs from paragraph 7 of Schedule 1 to the School Standards and Framework Act 1998 in that liabilities may, under subparagraph (3), be transferred to “such person concerned with the running of an Academy as the Secretary of State directs before the conversion date”.  Of the drafting, I observe, firstly, that, although it is only by virtue of paragraph 5(2)(a)(iv) of Schedule 1 to the Education Act 2002 that schools converted into academies are treated as discontinued for the purpose of paragraph 5(1), it is under paragraph 5(1) that the governing body is actually dissolved and, secondly, that both Schedule 14 of the Education Act 2011 and the substituted version of Schedule 1 to the Academies Act 2010 (like the previous version) are headed “Academies: Land” and so it is a little odd to find that, not only does paragraph 13 of the substituted version of Schedule 1 to the Academies Act 2010 have a heading indicating that it is concerned with “land and other property”, but also that it is apparently concerned additionally with other rights and liabilities as well.  Although much of Schedule 22 to the School Standards and Framework Act 1998 is concerned solely with land, it has always been clear that the scope of Part II is wider.  It may be that the draftsman of the Education Act 2011 no more had in mind claims in respect of disability discrimination when making provision for the transfer of liabilities then did the draftsman of the Academies Act 2010.  As to the effect of the amendments, I need not say anything because they are not relevant to the present cases.  However, it may well be that the problem that has arisen in these cases will not arise in the future.

 

 

 

 

.

 

 

Mark Rowland

1 August 2012