A parent wanted her child (who had a Statement and had been diagnosed with severe developmental delay) to be educated in a mainstream school. The local authority (“LA”) felt the child should be placed in a special school, a view which was shared by various professionals, and so named a special school in the Statement. The parent appealed to the First-tier Tribunal, who ordered that the parent’s choice of school should be named. The LA subsequently appealed to the Upper Tribunal.

Under the Education Act 1996 s. 316 and s. 316A (now replaced with similar wording in s. 33 Children and Families Act 2014), the fact that mainstream education may be unsuitable is not a permissible reason to refuse the child a mainstream school. The only situations in which an LA is permitted name a non-mainstream school is if it is not what the parent or young person wants; or if the attendance of the child or young person would be incompatible with the efficient education of others, and there are no reasonable steps that could be taken to remove that incompatibility.

The Upper Tribunal held in this case that the child’s inclusion in a mainstream school would not be incompatible with the education of other children in the school, and that reasonable steps could be taken to ensure that his education in a mainstream school would not be incompatible.

For children and young people with EHC Plans, this was reiterated in ME v London Borough of Southwark [LINK TO CASE PAGE] [2017] UKUT 73  which confirms the approach LAs and tribunals must take when a parent or young person wants mainstream education.

The full case report for Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC) can be viewed online.