Significant changes in special schools and special resource provision/units

The 2024 guidance has an increased focus on sufficiency and place planning, reflecting that, in practice, significant changes concerning special academies and RPs/SEN units are typically driven by local authorities’ (‘LAs’) place planning obligations. The 2024 guidance describes how LAs, academy trusts and the DfE are to work together to ensure sufficient school places, while also managing any spare capacity within the context of the LA’s statutory duty to ensure there are enough school places in their area (see section 14 of the 1996 Education Act).

The 2024 guidance also cites the duty of LAs to publish and review their “local offer”. In the context of these statutory duties, academy trusts are, for example, expected to work with LAs and the DfE regarding pupil planning, act reasonably where there are requests to expand/contract, be transparent about their ability to deliver places, and be transparent with the LA and DfE about significant changes. This clarifies that significant changes are not just a matter for an academy trust, but need to be considered in the wider context of place planning.

The 2024 guidance also emphasises the importance of LAs involving the DfE (via the Regions Group) in place planning information, noting what is expected of the DfE and the LA and how plans and decisions are finalised (emphasising that the DfE is the decision-maker for significant changes to academies)).

It is also noted that, where LAs and academy trusts do not agree an approach, the DfE can assist in reaching a resolution (implying that academy trusts may be under pressure from LAs (and the DfE) to undertake certain significant changes). 

What is a ‘significant change’?

A significant change is defined in the 2024 guidance as a change which may “impact on the local school environment by creating, changing or removing the number and/or type of school places and/or where they are offered”.

In the context of special academies and RP/SEN units, key significant changes include:

Types of significant change

• Increasing the planned number of pupils in a special academy by more than 20 pupils or more than 20% (whichever is smaller).

• Decreasing the planned number of pupils in a special academy by more than 20 pupils or more than 20% (whichever is smaller). 

• Note, in this context, the 2024 guidance states that changes to places refers to the following: […] significant changes to the number of places should […] relate to the planned number of places recorded in the funding agreement (‘planned number of places’). This is distinct from the number of ‘funded places’ annually commissioned by the local authority through the high needs place planning process (which may or may not relate to the school’s given physical capacity or pupils on roll).

• Changing the type of SEN provision in a special academy.

• Adding a SEN unit or RP at a mainstream academy.

• Increasing the number of pupils within an existing SEN unit or resourced provision at a mainstream academy by more than 20 pupils or more than 20% (whichever is smaller).

• Decreasing the number of pupils within an existing SEN unit or resourced provision at a mainstream academy by more than 20 pupils or more than 20% (whichever is smaller).

• Changing the type of SEN provision at a SEN unit or RP.

There are also other significant changes which are not specific to special academies or RPs/SEN units, for example:

• A change of age range (including adding or removing sixth form provision);

• A transfer to another site;

• Acquiring an additional (satellite) site;

• Adding/removing boarding provision; and

• Amalgamations and demergers, etc.

Note that where a significant change is determined by a particular threshold (e.g. an increase to the number of planned places), other actions may be needed arising from the change where the threshold has not been met. For example, it is expected that academy trusts inform the relevant LA of below threshold changes. It is also stressed that below threshold changes may still require an update to the academy’s funding agreement and this should be checked with the ESFA.

The 2024 guidance sets out the procedures which need to be followed by an academy trust when undertaking a significant change, including what is expected in respect of funding, land, planning permission, the public sector equality duty and consultation. In relation to consultation, this includes a requirement that where the proposed significant change will affect the statement of provision at a special academy, the consultation must make clear the changes which will be made to the statement of provision if the significant change is approved.

The 2024 guidance also notes that, as LAs are responsible for funding and commissioning high needs places, LAs “will be expected to confirm that the proposed changes reflect the special educational provision required to meet current and forecast needs and will not have a detrimental impact on local SEN provision”. This will need to be considered where changes are proposed to special academies and RPs/SEN units.

In respect of any proposals to change SEN provision, the 2024 guidance is clear that applications must also include a statement in the application on how the proposal is:

“[…] likely to lead to improvements in the standard, quality and range of educational provision in respect of: 

• access to education and associated services including the curriculum, wider school activities, facilities and equipment with reference to the local authority’s Accessibility Strategy 

• access to specialist staff, both education and other professionals, including any external support or outreach services 

• access to suitable accommodation 

• supply of suitable places at that academy and/or at other schools in the local area”

The 2024 guidance also provides that LAs and academy trusts need to collaborate so that significant changes regarding SEN provision are aligned to plans which are part of the Safety Valve or Delivering Better Value programmes.

It is the academy trust which must submit a significant change application to the DfE, even if the significant change is being made at the request of the LA. This calls into question whether an academy trust can ever refuse to apply for a significant change which a LA wants to see implemented. The 2024 guidance is silent on this question, however, given the guidance’s strong focus on academy trusts working collaboratively with LAs and in view of LA’s statutory obligations in respect of pupil places and SEN, it would not be feasible for an academy trust to simply refuse to co-operate where a LA is seeking a change. We expect if an academy trust did not agree that a change was needed, they would need to work collaboratively and constructively with the LA and the DfE to reach an agreement on the best approach.

The application process for all types of significant changes is now split into three tiers:

• Tier 1 – This applies to most significant changes (including the key significant changes which relate specifically to special academies and RPs/SEN units, e.g. a change to the SEN designation of a special academy) and requires an application form to be completed. The DfE has indicated that if the change is proposed by a strong school in a strong trust, the LA does not object, there is local support and, if relevant, evidence supports the need to increase/remove places, the application should be quickly approved. Regions Group will typically determine these applications.
• Tier 2 – This applies if risks or issues (e.g. if the LA has raised an objection) arise with a tier 1 application, meaning the application is moved by the DfE to tier 2. The 2024 guidance stresses that an application could still proceed even if the LA does not support the application, with applications being considered on an individual basis. At this stage, academy trusts may be asked for further details to support the application. Changes can be approved or rejected, or, in a small number of cases, may be escalated to tier 3. Regions Group will typically determine applications which reach tier 2.
• Tier 3 – This will apply to a small number of significant changes which are escalated from tier 1. It also applies to more contentious changes, e.g. relating to amalgamations/de-amalgamations and changes to religious designations, where a separate application form is required. The Regions Group remains the decision-maker for most tier 3 applications, but on occasion these may be referred to the relevant Advisory Board or escalated for ministerial approval.

If the change is approved, academy trusts are expected to update Get Information About Schools and their funding agreement (via a deed of variation).

For specific advice on significant changes to special schools or SEN units/RPs, please contact your usual SK contact or Nicola Andrews.