Case overview

The parents of a child with an EHC plan requested that their local authority (LA) name a maintained mainstream school in the plan. This is a type of school an LA has a conditional duty to name.

The LA disagreed and named in the EHC plan a maintained mainstream school which had a resource base. A resource base is where places are reserved at a mainstream school for pupils with a specific type of special educational need, and they are taught for at least half of their time within mainstream classes but require a base and some specialist facilities around the school. 

The parents did not want their child to use the base and wanted them to have what they called a ‘mainstream experience’.

They appealed to the SEND Tribunal. It looked at what provision the child needed and said that the parents’ preferred school was not suitable. This dislodged their conditional right to have this school named.

Having done this, the SEND Tribunal needed to consider what school (or type) would be appropriate for it to order.  It agreed the school with the base was appropriate and ordered that school be named.

The parent said the SEND Tribunal had not properly considered the right to a mainstream education under section 33 of the Children and Families Act (CFA) 2014 or section 9 of the Education Act 1996. We explain these briefly below.

The right to a mainstream education Section 33 of the CFA 2014 says that if a child or young person has an EHC plan and wants a mainstream education, the LA (or the SEND Tribunal on appeal) can only refuse if both two conditions are met: a mainstream placement would be incompatible with the efficient education of others, and  there are no reasonable steps the LA could take to avoid this.

Section 9 of the Education Act 1996   This says an LA (or the SEND Tribunal on appeal) must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with: the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.

 In this case the Upper Tribunal said the SEND Tribunal:

1. had properly considered section 33 CFA 2014, which is not a ‘right to a mainstream experience’.  It is also not a right to a particular mainstream school, and
2. had not properly considered section 9 of the Education Act 1996 when deciding which school was appropriate to name, but the mistake was not material on the facts.

What does this mean?

Mainstream schools with a resource base/SEN unit

Many mainstream schools with an attached resource base or unit are still mainstream schools, even if they make special educational provision for some pupils with special educational needs in separate classes to other pupils.

Occasionally bases/units are legally separate entities from the school where they are based. If so, the base/unit can be named in Section I of an EHC plan.

If you want your child to access a resource base or unit at a particular school, please see our choosing a school page for more information.

The right to a mainstream education

The right contained in section 33 CFA 2014 is a right to a mainstream education if parents and young people want it and the two conditions are not met. The duty to name a mainstream school where a parent wants a mainstream education is complied with if the LA names a mainstream school in the EHC plan.

This case reminds us that section 33 of the CFA 2014 is not a right to a particular mainstream setting or to a ‘mainstream experience’.

The right to request a particular setting and appropriate settings

If you make a request for a setting listed in section 38(3) CFA 2014, and:

If	Then
none of reasons listed in section 39(4) CFA apply	the LA/SEND Tribunal on appeal must name the requested school.
one of the reasons listed in section 39(4) CFA 2014 does apply	the LA/ SEND Tribunal on appeal must name an appropriate setting (or type) instead, taking into account section 9 of the Education Act 1996 and section 19 CFA 2014

We have more information on this on our website.

In this case, the SEND Tribunal looked at how much opportunity the child would have to access mainstream classes and when. It recognised that this was a placement at a mainstream school, albeit with a base within the school.

It also looked at the provision the parents wanted for their child (including Applied Behavioural Analysis (ABA) provision). It decided that ABA was not reasonably required by the child’s needs, the school the parents wanted did not support or use ABA therapies, nor did it have on-site therapists who could deliver the other provisions or the appropriate class size (which the LA’s choice of school did).  

It therefore found the parents’ choice of school to be unsuitable (which meant it could refuse to name it) and LA’s school of school to be appropriate.

Section 9 of the Education Act 1996

This section does not create any legal right to have a particular school named in an EHC plan.

If	Then
you requested a section 38(3) CFA 2014 setting but this has been lawfully refused	the LA/SEND Tribunal must name an appropriate setting (or type) instead.
you requested an independent setting	the LA/SEND Tribunal will consider if it is appropriate and may decide to name it. (The setting will need to have offered a place too.)

 When an LA or SEND Tribunal is deciding what is an appropriate setting (or type) then section 9 of the Education Act 1996 needs to be considered.

If	Then
your placement wishes are incompatible with: the provision of efficient instruction and training and/or the avoidance of unreasonable public expenditure	there is no duty on the LA or SEND Tribunal to have regard to those placement wishes under section 9 of the Education Act 1996. However, the LA/SEND Tribunal still needs to take into account the views, wishes and feelings of the child and their parent, or the young person, under section 19 CFA 2014.
your placement wishes are compatible with: the provision of efficient instruction and training and/or the avoidance of unreasonable public expenditure	you should show that and explain there is no other rational reason for not complying with the general principle that a pupil should be educated in accordance with the wishes of their parent.

If your choice of school, and your LA’s choice of school are both appropriate, then provide to the LA/SEND Tribunal on appeal any evidence you have that shows why your preferred setting should be named, or is more appropriate than the LA’s choice.

 Examples could include:

• your preferred setting is closer to your child’s home and will involve a shorter journey route, or
• your child has friends attending that school meaning joining a peer group and transitioning to that school will be easier/quicker.

The full case report for AA v London Borough of Hounslow (SEN): [2025] UKUT 226 (AAC) can be accessed online.   

You can find more information about choosing a school with an EHC plan and appealing against the school named in an EHC plan on our website.