The case concerned a child, F, who suffered from muscular dystrophy, sight impairment and a range of learning difficulties. He had no expressive language and his developmental level was described as equivalent to between 6 and 12 months. The parent wished the child to attend a mainstream school, and the LA argued that this was not appropriate. The parent appealed to the First-tier Tribunal.

There were no other students with similar needs in the local mainstream school and the child would essentially need one-to-one tuition, alone. On the evidence before the First-tier Tribunal, the parent conceded that a placement at the local mainstream school would be incompatible with the efficient use of resources or the provision of efficient education, but maintained a wish for him to be educated at a mainstream alongside other pupils with SEN, rather than in isolation.

The First-tier Tribunal considered the local mainstream school “would not be incompatible with the efficient education of other children”, but was “incompatible with any concept of inclusion, simply because he would be alone, with adults, for much of his day”. The First-tier Tribunal went on to order that Part 4 was to specify, “A maintained mainstream secondary school where [F] will be educated with other pupils who have severe and complex disabilities, which has appropriate facilities, expertise and access to extensive therapy involvement and provision.” No school fitting this description had been proposed by either party. The LA appealed to the Upper Tribunal.

Relating to the right to mainstream, the Upper Tribunal held:

“The apparent incompatibility between the provision of suitable education and the requirement to name a mainstream school without express regard to the suitability of the school for the child can only be reconciled on the basis that the local education authority is under an absolute obligation to make a school suitable, if there is no suitable school already, whether inside or outside its area, where the child can be found a place, subject only to the qualification in section 316(3)(b) [that the LA can refuse to name a mainstream placement where it is incompatible with the efficient education of other children]. It has to provide for the identified needs. It cannot say that it will educate the child in a mainstream school without providing for them. Nor can it rely on any independent resources issue in this respect.

…The incompatibility exception can be established by showing and only by showing that there are no reasonable steps that the local education authority could take in relation to their mainstream schools to prevent the incompatibility.

…In considering whether, in the present case, the provision of education for F in a mainstream school would be incompatible with the provision of efficient education of other children in each of its own schools, it is necessary to consider not only the effect on the other children presently in each of its schools and reasonable steps that may be taken in that regard, but also the position of the notional additional children who would have to be introduced there to enable F's special needs to be met, since one of the provisions that has to be made for him is to ensure that he is educated with other similarly disabled children. As the tribunal found, the plan to educate him at [the local mainstream] in isolation was profoundly unsuitable for him, so that the council would not be performing its duty there unless other children with severe and complex disabilities were there with him.”

The Upper Tribunal considered that the First-tier Tribunal did have the power to name a particular type of school as well as a specific school. However, the Upper Tribunal found that the First-tier Tribunal had erred in law by naming a particular type of mainstream school where there was no evidence that this was, in fact, available (and it was clear from the evidence that no such school existed within the area of the LA):

“…In the absence of the clear availability of a suitable place at a mainstream school outside the area of the council, the tribunal, in considering the effect on other children, could only consider mainstream schools within the council's area. It would have to consider the effect not only on the children already at those schools but also on the other children with severe and complex disabilities, who would, if legally possible, have to be brought in from other schools to enable F to be educated with them. If their inclusion with F at, for them, a new mainstream school would be incompatible with the provision of efficient education for them, then that would be a basis on which the council could establish [the] exception [on the grounds of incompatibility with the efficient education of others].”

Additionally, the First-tier Tribunal had overlooked the fact that if such a school were to be found outside the LA’s area, there could still be issues as to the appropriateness of the school or the availability of a place. The case was therefore sent back to the First-tier Tribunal to be re-heard.

There is no case report available online.

For more information, see our sections on choosing a school when you have an EHC plan and the right to a mainstream education.