Case overview

This case was about the statutory right to mainstream education where that is what a parent (or a young person) wants but where the local authority (LA) considers that this is not “suitable” for the child or young person.

This case was made under the previous legal framework, Education Act 1996, but because the Children and Families Act 2014 has the same legal right, it is still applicable to the way LAs must make decisions.

In this case, a parent wanted her child (who had a statement of special educational needs (Statement) and had been diagnosed with severe developmental delay) to be educated in a mainstream school. The LA (and various professionals) felt the child should be placed in a special school, and so named a special school in the Statement.

The parent appealed to the SEND Tribunal, which ordered that the parent’s choice of school should be named. The LA then appealed to the Upper Tribunal.

Under the Education Act 1996, sections 316 and 316A (now replaced with similar wording in section 33 Children and Families Act 2014), the fact that mainstream education may be unsuitable is not a reason in law to refuse the child a mainstream school.

What does this mean?

The only situations where 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.

In this case there was no evidence that the child’s inclusion in a mainstream school would be incompatible with the education of other children in the school.

For children and young people with EHC plans, ME v London Borough of Southwark [2017] UKUT 73 confirms that this is the way LAs and the SEND Tribunal must make decisions under the Children and Families Act 2014 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.