Case overview 

This case was about how a local authority (LA) or the SEND Tribunal should consider a request for mainstream education, even where there was evidence that mainstream education was not “suitable” for the child. Although the case was decided under the earlier legal framework of the Education Act 1996, because the right to mainstream education carries on under the Children and Families Act 2014, this case is still relevant.

The child, F, had muscular dystrophy, sight impairment and a range of learning difficulties. The parent wanted the child to go to a mainstream school, but the LA argued that this was not appropriate. The parent appealed to the SEND Tribunal.

The evidence suggested that there were no other students with similar special educational needs (SEN) in the local mainstream school and the child would need one-to-one tuition, alone. The parent maintained her wish for her child to be educated at a mainstream school alongside other pupils with SEN, rather than in isolation.

The SEND Tribunal decided that naming the local mainstream school would be “incompatible with any concept of inclusion, simply because he would be alone, with adults, for much of his day”. It ordered that the placement should be, “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 suggested by the parent or the LA, and the LA appealed to the Upper Tribunal.

The Upper Tribunal decided:

“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 SEND Tribunal did have the power to name a particular type of school as well as a specific school but said that the SEND Tribunal had made a mistake in law by naming a particular type of mainstream school when there was no evidence that this was 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].”

Another mistake in law was that the SEND Tribunal had not thought about the fact that if this kind of school was found outside the LA’s area, there could still be questions about its appropriateness or the availability of a place. The case was sent back to the SEND Tribunal to be re-heard.

What does this mean? 

Where a parent or a young person requests mainstream education, even if there is evidence that this is ‘unsuitable’, the expectation is that the LA will 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. 

The only exception will be where sections 33(2) and (4) Children and Families Act 2014 apply and the attendance of the child or young person in a mainstream setting would be incompatible with the efficient education of others and there are no reasonable steps that can be taken to prevent this incompatibility.

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.