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Jenny
Jenny, Solicitor
Category: Law
Satisfied Customers: 6305
Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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Can an illegal process deliver a legally binding decision

Resolved Question:

Can an illegal process deliver a legally binding decision
Submitted: 1 year ago.
Category: Law
Expert:  Jenny replied 1 year ago.
Hello my name is ***** ***** I am happy to help you today. Please can you explain the situation in more detail?
Customer: replied 1 year ago.

Appeals hearing for admission to a school found in the parents favour. However, the appeals panel did not follow the must and must not directives with in the code. An independent solicitor has agreed our case is overwhelming. The local authority are denying that because the panel did not follow the code, the decision they came to cannot be legally binding. they are saying that the decision is legally binding.

Expert:  Jenny replied 1 year ago.
what is your interest in this?
Customer: replied 1 year ago.

I am a chair of Governors of a Primary Academy. As an outsider to law, the fact that the Panel did not follow the Appeals Code and any decision they make has the force of law, it seems logical that not following the code cannot produce a binding decision. The Education Funding Agency are enforcing the decision because they say any decision made by an appeals panel is legally binding.

Expert:  Jenny replied 1 year ago.
How has the fact that the Panel did not follow the code come to light? It is a slightly unusual situation as usually it is the parents who would want to review an appeal decision against the child's admission not a 3rd party.
Where the parent wants a decision reviewed they have an option of applying the Local Authority Ombudsman who can make a recommendation that the appeal be reheard by a newly constituted appeals panel. You could use the same process to request that the decision be reviewed. You could also seek judicial review of the decision.
A first step would be to write to express your concerns to the Head of Legal Services at the Local Education Authority. You may need to seek advice from a specialist Education Lawyer if you want to go down the judicial review route.
If you have any further questions please ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 1 year ago.

We have written to the legal people at the LA. Their answer is that the decision cannot be overturned. We are still confused because we cannot understand that he decision the appeals panel came can be legal if the appeals did not follow the code. This is the reason for the question. As a school we do not have the same rights as parents and cannot appeals to the local ombudsman

Expert:  Jenny replied 1 year ago.
why does the school object to the child's admission?
Customer: replied 1 year ago.

because the year group is full and there are 3 children with statements of need in the class should the child be admitted. As stated before, an independent solicitor has agreed our case is overwhelming that the appeals panel had not followed the code of practice. We are therefore saying that the decision the panel came cannot be binding.

Expert:  Jenny replied 1 year ago.
The problem you have is that you are on the same side as the LEA and if they are not supporting your objection to this then you are going to have an uphill battle. As a school you will need to independantly of the LEA instruct a specialist Education Lawyer to see if you have an argument that this decision should not stand. I think you may be able to seek judicial review of the decision but this is likely to be a costly and drawn out process.
I understand your point that if the process has not been correctly followed the decision is flawed and should not be binding but you are not the only party in this process and if the LEA and funding Agency are enforcing it you are not in a position to overturn the decision I am afraid.
At this point I would urge you to seek specialist advice. I have previously been employed as a local authority solicitor and understand the complexities of education law and have advised on appeals panels but this is a most unusual situation and it seems that you will need to seek support independent of the LEA if they are not on your side. If you have not already done so request a meeting with your head of legal services and Head of Children's services and see if this gets you anywhere.
Good luck.
Customer: replied 1 year ago.

Hi Taratill, thank you for being so patient. As an academy, we buy in the appeals service from the local authority. As we are buying in that service are we really ion the same side. Also if appeals panels are independent, they should not be 'working' for either side. You are correct, this is a very unusual case because no school has challenged an appeals panel before. Only parents.

Expert:  Jenny replied 1 year ago.
Academy status does make a difference as you are contracting in the services. Are you suggesting the appeals panel is biased? -*
Customer: replied 1 year ago.

No, just that they did not follow the code in at least 8 places, did not explain their decisions and the decision letter contained errors that were altered by the head of appeals service in consultation with the clerk of the panel

Expert:  Jenny replied 1 year ago.

Ok the fact that you are an Academy does not change the complexity of the situation only the relationship between you and the LEA. I would still suggest you request a meeting to discuss your concerns and consider engaging a specialist lawyer to represent the Academy's interests. I do wish you all the luck with this and hope you will sort it out. You never know this could be a ground breaking case. If you have any further questions please do ask. I would be grateful if you would take the time to rate my answer as I am not otherwise credited for my time. Many thanks

Customer: replied 1 year ago.

Hi Tartill. I will give you a good rating at the moment.

They refuse to meet and discuss the issue. The head of appeals service at the LA has 'mysteriously' retired in the last fortnight.

despite all the above, me being quite 'simple' says that the panel has to follow the code for a decision to be binding and have the force of law .. otherwise why have a code?

I agree with you .. this could be a trail breaker. The academy is reluctant to spend taxpayers money resolving an issue that should be simple. The appeals panel did not follow the code. The decision therefore cannot be legally binding. the hearing needs to be heard again.

Expert:  Jenny replied 1 year ago.
Yes but you, as an Academy, do not have the authority to tell that child's parents that you do not consider the decision to be binding. I understand your logic completely but whilst it might seem desirable you do not have the authority to refuse the child that has been accepted, even by a flawed process.If you do this and the child has special needs it could end up costing you much more in tax payers money to defend a claim that it will to take appropriate legal advice and the correct steps as I have explained above.
If you disagree with the decision then you need to take the appropriate steps to see if the decision can be reviewed.
My advise earlier stands as to the best way to go about that process.
Jenny, Solicitor
Category: Law
Satisfied Customers: 6305
Experience: Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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