The conduct of Tribunal hearings following academy conversion

School children iStock 000006736409XSmall 146x219When maintained schools with existing or outstanding Tribunal discrimination claims convert to become Academies, this causes significant legal and practical problems, explains Jonathan Auburn.

When maintained schools convert to Academies, what happens to Tribunal claims (particularly disability discrimination, or DDA, claims) already on foot against the school? This relatively simple, and not uncommon problem, has given rise to numerous legal and practical difficulties.

Formal liability for claims on conversion

In formal legal terms, on conversion the outstanding liabilities (and claims) of the maintained school transfer to the local authority. Therefore, strictly speaking, if there is on foot a DDA claim which relates to the action of the school and its staff or management, then one would expect that it would be the local authority that takes up the defence of the claim.

This is not straightforward though. The local authority may have disagreed with the school (formerly maintained, now Academy) as to the treatment of the pupil and the validity of the claim. In one recent case, the local authority supported the parents' claim, and had always taken the position that the school was erring in its approach.

If a principal remedy is an apology, how meaningful is it for the local authority to apologise for the actions of the school, if it always took a different view to the school? And what form would such an apology take: “the local authority apologises on behalf of the school, even though we (the local authority) always told them they were wrong, and they are not apologising”? And how meaningful is the process if the people most involved in the decision under challenge are not present to explain it?

In view of these difficulties, there was a concerted attempt in a recent UT case to argue that the Academy had some responsibility as the realistic continuation of the former maintained school. In the two linked cases of B v West Bridgford Academy HS /2702/2011 and L v Tonbridge Grammar School HS/2716/2010 it was argued by the parents, supported by the local authorities in both cases, that where the staff and management of the school had not in reality changed, the new Academy was essentially the same body which had committed the alleged discrimination and could be answerable to the Tribunal. That submission was rejected by the Upper Tribunal.

It is interesting to note that prior to the UT’s decision, one of the Academies involved, West Bridgford Academy, took a firm line that it could not be liable in law and so would not participate in the FTT proceedings. After the UT decision, when the matter was remitted back to the FTT for determination, the Academy then applied to be joined as Second Respondent, and played a full part in proceedings, putting forward two witnesses and representation by a silk.

There may be an appeal in one of these linked cases. However, leaving aside any possibility that the Court of Appeal may reverse or qualify the UT’s decision, the formal legal position is that once a school converts to an Academy, it is no longer liable for existing DDA claims, and all liability transfers to the local authority.

Qualification to formal legal position

However that formal legal position must be heavily qualified by the practicalities of the situation. The Tribunal has no power to award monetary compensation. This was a deliberate limitation imposed when the Tribunal first gained jurisdiction for disability discrimination claims. Thus the principal remedies available are reputational, ie the Tribunal decision and its reasons as vindication of the parents’ position, and an apology (another common remedy is to order that the respondent undergo particular training).

Issues of formal legal liability and the transfer of liability mean relatively little when the principal effects of an adverse decision are reputational ones. As indicated above, the remedy of an apology carries no real meaning if it is not given by the perpetrator of the discrimination. And what is the meaning of the remedy of training, when it is training of the local authority, who may have played no part, or taken the opposite view, as regards the acts found to be unlawfully discriminatory.

As well as the difficulty in the utility of the remedies, if the Academy is said to have no legal liability, will it even take part in the proceedings?

Where the Academy does participate in the hearing, the Tribunal is virtually powerless to make any orders against the Academy. It could perhaps make recommendations, and leave it to the Secretary of State to take action if it wished. But as the Academy has no formal legal liability, it is difficult to see how it could be made subject to an order. That was the approach taken by the FTT when the West Bridgford case was remitted back to it.

This leads to the unsatisfactory outcome of a full Tribunal hearing, with the Tribunal then reaching findings that a school has acted unlawfully, but the Tribunal being unable to make any orders binding on that school consequent on the finding of unlawful discrimination.

Different views between and within Academy groups regarding participation

In the cases cited above the Upper Tribunal expressed its expectation that Academies would generally participate in FTT hearings. The practice is more mixed, and in part depends on who within the Academy organisation has the greatest say in the decision.

There are, very broadly, two general views taken between and within Academy groups on the issue of whether they should be participating in the hearing of the DDA claim which relates to events occurring prior to conversion.

Managers within the Academy organisation often take the view that because liability has transferred, the Academy should not be involved in the ongoing proceedings. There can be a mix of reasons for taking this view.

  • There is often a desire to avoid legal costs. Whilst a maintained school would use council solicitors at no cost or with mere internal accounting of cost, Academies are often legally advised by private firms.
  • It may be difficult for the Academy to justify the expenditure on legal costs when there is no risk of paying financial compensation at the end of the process.
  • There is a feeling that the claim only relates to the maintained school (ignoring the close identity between the staff and management of the former maintained school and the new Academy).
  • There may be a desire to keep a low profile.

In contrast to this the staff and managers of the Academy itself are, in my experience, usually keen to participate in the Tribunal hearing and be represented. This is for a number of reasons.

  • They often feel strongly as to the correctness of their position, and seek vindication.
  • They have concerns as to the effects of an adverse finding in reputational terms, and possibly with other consequences not immediately foreseeable.
  • They may still be dealing with the same parents day to day, and an adverse finding may cause even greater problems in managing this relationship.

What if an Academy refuses to participate?

Where the Academy refuses to participate in the FTT DDA claim, as happened initially in the case noted above, what should parents, and possibly the local authority, do?

The non-participation of an Academy should not be allowed to frustrate parents’ valid pursuit of a determination of their claim. Win or lose, they should be able to put their case to the Tribunal and have the Tribunal consider the case in the light of appropriate evidence, including the school’s explanation of its actions.

If there is any indication that the Academy may not participate in the proceedings, parents (and if appropriate the local authority) may either press ahead with the hearing with no attendance from the Responsible Body, which is unsatisfactory, or apply for a witness summons against particular teachers or managers of the Academy. The use of witness summonses in the FTT is uncommon but not unknown. There mere threat of one may be sufficient to bring the Academy to the hearing.

Cases involving allegations against both school and local authority

The situation is different where the claim involves allegations against both the school and the local authority. In such a case the local authority may be present at the trial in any event.

In this situation the Academy may ask to take over representation of the case, even though the party with legal liability is the local authority. There are real problems with this, and local authorities should be very wary about agreeing to it. The interests of the two parties (Academy and local authority) may not be the same. The local authority may end up losing control of the defence of its own case.

Conclusion

The handling of Tribunal claims running across conversion of the school will never be straightforward. There will be a number of ways to put pressure to bear on an Academy Trust to ensure that it provides witnesses and documents. Not all of these methods involve formal action within the Tribunal processes. It is important though that such claims are properly dealt with, and the reluctance of an Academy Trust to be involved should not be allowed to prevent parents from having their claims heard in an orderly and informed manner.

Jonathan Auburn is a barrister at Thirty Nine Essex Street specialising in education, community care and judicial review claims involving local authorities. His full details can be viewed here.