Case overview 

This case was about what evidence a local authority (LA) needs to show that the attendance of a child or young person at a particular setting would be incompatible with the efficient education of other children. It also explained what LAs need to consider when working out whether a placement was unreasonable public expenditure.

The LA had named a maintained special secondary school but the parent wanted their son, J, to attend a different maintained special school, which was oversubscribed.

The parent appealed and the LA argued that the child’s attendance at their parent’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 lawful reason to refuse to name the placement under section 9 Education Act 1996.

Section 9 Education Act 1996 (which is still relevant to decisions about placement for children and young people with EHC plans) says that LAs shall have regard to the general principle that pupils (generally, those under 18) 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 section is considered when a parent or young person is asking for an independent setting. Where a maintained special school is requested, the relevant law is section 39(4) Children and Families Act 2014, which also contains similar wording.

The SEND Tribunal concluded that where section 9 Education Act 1996 talks about "instruction and training" it meant the child’s, rather than the training of all children in the school. The parent’s preferred school could meet need and there would be no difference in cost between the two schools, and so the second part of the test in Section 9 wasn’t applicable: “it cannot be said that there would be an unreasonable use of public expenditure”. That meant the SEND Tribunal ordered the LA to name the school the parent had asked for.

The LA appealed and said that there had been an error in the way the SEND Tribunal had interpreted the law. It argued that Parliament could not have intended that pupils should be educated in accordance with the wishes of their parents, even where to do so would be incompatible with the provision of efficient instruction and training to other children. The LA also argued that the SEND Tribunal should have balanced the parent’s wishes against other matters.

The High Court (which used to deal with appeals from the SEND Tribunal before the Upper Tribunal was given the power to consider them) agreed with the LA the correct question is whether J’s attendance was incompatible with the education of those with whom J would be educated. The High Court held that a parental preference was only displaced by a finding of incompatibility with the efficient education of other children – this meant it needed to be shown that J’s attendance would result in those children no longer being able to receive efficient instruction and training. Importantly, it was not enough just to show there would be some impact on those other children.

The High Court also said that when thinking about whether something was unreasonable public expenditure, or incompatible with the efficient use of resources, the LA (or SEND Tribunal) must do a balancing exercise 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 SEND Tribunal still has a general discretion (now set out in section 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.

What does this mean?

Proving that a child or young person’s attendance is incompatible with the provision of efficient instruction and training for others at that setting (whether under section 39(4) Children and Families Act 2014 or section 9 Education Act 1996), needs more than just showing that there is some impact on those other children or young people.

And under section 9 Education Act 1996, even if the parent’s preference is more expensive, a balancing exercise still needs to be carried out thinking about that preference as well as all the other factors why the placement might be appropriate.

The full case report for Hampshire County Council v R & SENDIST [2009] EWHC 626 (Admin) (2009) ELR 371 is available online.

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