The local authority (“LA”) maintained a Statement of special educational needs for R's son (J). J’s Statement was amended to name a secondary school which the LA believed was an appropriate school for him. R wanted him to attend a different school, but that school was oversubscribed. Both schools were maintained special schools. R appealed to the tribunal, and the local authority argued that J's attendance at R's preferred school would be incompatible with the provision of efficient instruction and training for the children with whom he would be educated, because of the large number of pupils at the school, and that this was a permissible reason to refuse to name the placement under s. 9 Education Act 1996.

1. 9 Education Act 1996 states that LAs:

“[S]hall 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.”

This is still relevant for children and young people with EHC plans, as it is this section which is considered when a parent or young person is asking for an independent setting. Where a maintained special school was requested now, the relevant law would be s. 39(4) Children and Families Act 2014, which contains similar wording.

The First-tier Tribunal concluded that it was J's "instruction and training" to which s.9 referred, rather than the training of all children in the school, and it was accepted that the parent’s preferred school could meet need. It also stated that there would be no difference in cost between the two schools, and so “it cannot be said that there would be an unreasonable use of public expenditure”. It ordered the LA to amend J's Statement in accordance with R's wishes. The LA appealed to the Upper Tribunal.

The LA argued that the First-tier Tribunal had construed s.9 incorrectly as Parliament could not have intended that pupils should be educated in accordance with the wishes of their parents, even where to do so would adversely affect the provision of efficient instruction and training to other children. The LA also submitted that the First-tier Tribunal had erred by treating R's wishes as determinative, without balancing that factor against other matters.

The High Court agreed with the LA that the First-tier Tribunal had been wrong to consider that the only relevant question was whether J’s attendance would be incompatible with his own instruction and training. The correct question is whether it is incompatible with the education of those with whom J would be educated. The court held that a parental preference was only displaced by a positive finding of incompatibility with the efficient education of other children – it needed to be shown that J’s attendance would result in those children no longer being able to receive efficient instruction and training. It was not enough to merely show there would be some impact on those other children.

The High Court also commented that when considering whether something was unreasonable public expenditure, or incompatible with the efficient use of resources, there was a balancing exercise to be carried out even where the parent’s choice is more expensive. The reasons for the parental preference should still be taken into account, and even if there is found to be an incompatibility, the LA or First-tier Tribunal still has a general discretion (now set out in s. 40(2) Children and Families Act 2014) to name an appropriate school or other setting. The various factors should all be taken into account in the exercise of its discretion.

The full case report is available here.

For more information, see our section on choosing a school when you have an EHC plan.