SPECIAL schools designated with a Church of England or other reli­gious character are a legal impossi­bility, as things stand. How very odd.

This is just the sort of provision and care that the Church ought to be committed to making, you might think. Indeed, my practice has clients who would be very glad to pro­vide this very thing.

Such a school would be likely to be the only such provision for an area; so there are those who might argue that a religious designation would be inappropriate. And yet a Church of England primary school will often be the only school in a village, and is open to all; almost all voluntary controlled (VC) C of E schools have admissions criteria in which religious affiliation or practice play no part; and the legal requirements for RE and worship are similar in both VC schools and com­­munity schools: all parents and sixth-formers have the right of withdrawal.

So if the C of E can be the pro­vider of such schools and have them designated, why is it not the same for special schools?

The answer is that, while the primary legislation in section 69 of the School Standards and Frame­work Act 1998 does not appear to restrict the type of school that can be designated, The Religious Character of Schools (Designation Procedure) Regulations 1998 states, in Regula­tion 5, only “a foundation or volun­tary school” as being capable of being designated.

The list does not include “foun­dation special schools”, which are a separate category of school, and there is no statutory category of “vol­­untary special school”. Aca­demies are dealt with under the parallel Independent School regula­tions.

The idea that religious designa­tion equates with segregation is perhaps the objection, yet this is visibly not the case with C of E schools (just look at any church prim­ary); and the Church of Eng­land Education Office makes its inclusive policy very well known. All would be admitted under the regime for special schools without any reli­gious discrimination.

AlamyRed sensory lighting in a special school in Dorset

So, is this ban on designation just an accident of the cumulative effects of legislation, or what?

A further oddity of the situation is that nothing, I believe, prevents a diocese providing and running a special school, and such a school having a clear C of E ethos — as it would have to, if the site were on land governed by a typical church trust.

Indeed, the Department for Edu­ca­­tion appears to distinguish be­­tween “ethos” and “character”, dis­crim­inating against only the latter. So, if a diocese created suitable trusts for holding the site of a non-designated school — or if it had sites already belong to trusts that could cope with only an “ethos” rather than a designation — then it could bid to establish a special school.

At the moment, such a school would almost certainly be an academy, since current gov­ern­­ment policy is against creating new foundation schools. The DfE, therefore, may be reluctant to agree a new foundation special school. A further oddity is that there is no legal category of voluntary special schools.

The governance of such an academy special school could per­fectly properly be provided by the Church, and such a school would be a “church school” under both the ex­­isting Diocesan Boards of Education Measure and its proposed replace­ment.

So what is it about actual “designation”? Is it just accident — a hangover from the days when it might reasonably have been thought to be a task for the local authority? After all, the local authority pro­vided both schools and social services, and held (indeed still holds) the strategic policy position. So, in the days before “contracting out”, it might have seemed sensible and pragmatic for this to be a local-authority task.

But now — given the contracting out of much care provision, and the replacement of local authorities
by multi-academy trusts as the main providers of schools — why is there this remaining discrimination against religious groups? Religious bodies can provide pretty much any other contracted-out service on behalf of the state, provided that they can meet the standards and accept the criteria; so why not this one?

Perhaps it is time for a fresh look at this important area. I believe that there are dioceses and multi-academy trusts that would be eager to be of service to their communities and young people in this way.