How we help Get support SEN and disability law SEN and disability case law Case summaries London Borough of Hillingdon v SS and others (SEN)  UKUT 250 (AAC) When a parent or young person receives a draft EHC Plan, they have a specific right to tell the LA which school or institution they prefer to be named in the final plan. Following that request, the LA has a conditional duty to name the preferred placement. The list of schools to which this right applies are listed in s. 38(3) Children and Families Act (“CAFA”) 2014 and include: maintained/academy mainstream and special schools, maintained nurseries, institutes within the further education sector, non-maintained special schools and independent special schools which are approved under s. 41 CAFA 2014. Where no request is made in the time specified by the LA under s. 38(2)(b) CAFA 2014, the LA (or the Tribunal acting in their place) is required to specify the institution or type of institution it considers “appropriate” (s. 40(2) CAFA 2014). Under s. 9 Education Act (“EA”) 1996, LAs must have regard to the general principle that pupils should be educated in accordance with their parents’ wishes, so far as that is compatible with “the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”. The definition of “pupil” in s. 3 EA 1996 is a person aged 18 or under receiving full time education in a school setting. Parents can rely on this provision when they want a placement named in the EHC plan which does not fall in the s. 38(3) CAFA 2014 list – i.e. an independent setting which is not a s. 41 school or college. The fact that s. 9 EA 1996 applies only to “pupils” left uncertainty for young people arguing that an independent placement should be named in an EHC Plan. In LB Hillingdon v SS and others (SEN)  UKUT 0250 (AAC), the LA argued that s. 9 EA 1996 did not apply to the young person concerned, and that s. 40(2) CAFA 2014 only gave the LA the power to name a school of the type included within the s. 38(3) list. Therefore, they argued, the young person had no right to have an independent placement named. The Upper Tribunal agreed that s. 9 EA 1996 did not apply to young people who are not pupils, but did not agree that the right to name an independent placement arose from that section: “Its very wording indicates that it is a provision regulating how powers and duties are to be exercised or performed, rather than itself a source of power”. Judge Ward was very clear that such young people should not be excluded from requesting independent placements. The Judge questioned why the CAFA 2014, which has significantly extended the scope of existing entitlements for people with SEN up to the age of 25, should have sought to exclude such persons from the ability to take advantage of educational settings not contained in the s. 38(3) CAFA 2014 list. He stated: “It would be a startling consequence if a power to name independent schools which had previously existed in respect of children under the 1996 Act had been taken away by the 2014 Act, without any express statutory indication that this was the intention and without transitional provision to protect those already embarked on such education under the 1996 Act and I have been taken to none.” Judge Ward referred to S v Worcestershire County Council (SEN)  UKUT 0092 (AAC), in which Judge Mitchell had stated: “Since this was not a case in which the section 39 [CAFA 2014] presumption in favour of a young person’s preferred placement applied, section 40(2)… required the Tribunal to specify the institution (or type of institution) it considered appropriate.” Judge Ward explained that s. 40(2) applies where no request is made, and also where a request for a school which falls outside of s. 38(3) CAFA 2014 (i.e. a request for an independent school or another type of institution not included in the list) is made. This is where the power to name an independent school arises, not from s. 9 EA 1996. Therefore, this judgment confirms that: When requesting a school or other institution, the principal right for parents and young people is to request a school or institution listed in s. 38(3) CAFA 2014. If such a request is made but one of the exceptions under s. 39(4) applies, the LA must name any school or other institution which the LA thinks would be “appropriate” (s. 39(5) CAFA 2014). If: No request is made; A request for a school outside of s. 38(3) is made, the LA must name any school or other institution it thinks “appropriate” (s. 40(2) CAFA 2014). When exercising this power, the LA must have regard to “the views, wishes and feelings of the child and his or her parent, or the young person” (s. 19 CAFA 2014); If the child or young person is a pupil (under the meaning of s. 3 EA 1996), then the LA must also have regard to the general principle in s. 9 EA 1996 that pupils should be educated in accordance with the wishes of their parents. This case is a helpful summary of the law to be applied when an independent placement is requested for a child or a young person. The full case report for London Borough of Hillingdon v SS and others is available online. For more information, see our sections on types of school, requesting a school when you have an EHC plan, and young people.