The Upper Tribunal gave a very clear explanation of the order of the legal tests which must be applied when the parent or young person wants mainstream education but the local authority (“LA”) refuses to specify it within the EHC plan.

1. 39 Children and Families Act 2014 allows a local authority to refuse to name the parent’s choice of school or other setting on the grounds that it is unsuitable, incompatible with the efficient education of others or incompatible with the efficient use of resources. s. 33 Children and Families Act 2014 sets out the right to mainstream: a child or young person with an EHC plan must be educated in a mainstream setting unless (a) the parents or young person do not wish it or (b) the child or young person’s attendance would be incompatible with the efficient education of others and there are no reasonable steps that could be taken to avoid this.

Regarding ss.33 and 39 Children and Families Act 2014, Judge Jacobs stated: 

“They are concerned with placement. They impose duties, albeit qualified ones, on local authorities to secure that a child’s plan names a school or identifies a type of school. The sections are not concerned with the child’s special educational needs and provision or with the delivery of that provision. Those matters are subject to separate duties. Section 37 requires the local authority to specify in the plan the child’s needs and the provision required to meet those needs. Section 66 imposes a duty on the particular school to use its best endeavours to secure that the provision is made.”

He went on to say: “The nature and extent of a child’s needs and their provision become relevant under section 33 if they cannot, even with reasonable steps, be delivered in a way that is compatible with the efficient education of others.”

Judge Jacobs was clear that the wording in ss.33 and 39 shows that s.39 should be considered first, and s.33 only applies if the LA does not accede to the parents’ request for mainstream under s.39.  Therefore, a school rejected under s.39 may still be named under s.33.

Judge Jacobs quoted Harrow Council v AM [2013] UKUT 157 (AAC), a case decided under the old SEN legal framework, in which it was stated: “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 child can only be reconciled on the basis that the local authority is under an absolute obligation to make a school suitable …, subject only to the qualification in section [33(2)(b)].”

When considering s. 33, the Tribunal must first assume that reasonable steps would be taken to integrate the child into mainstream, and only then consider whether, despite those steps, it would remain incompatible with the efficient education of others to educate the child in a mainstream setting. Cost is not a relevant consideration at this stage.

Judge Jacobs then went on to address this qualification and the test of “incompatibility”. He considered NA v London Borough of Barnet UKUT 180 (AAC), another case decided under the old SEN legal framework, and agreed that the definition of efficient education, “indicates a standard, not the very highest desirable standard or the very basic minimum, but something in between” and that it was against this concept that the test of incompatibility must be carried out.

The term ‘incompatible’ itself indicates “that there is no way of avoiding the admission of the single child involved reducing the quality of education provided to some other children with whom he would be educated below that standard. The test must be applied “by reference to the circumstances only of the child in question and other children who are already known or predicted to be in the category of those who would be educated with the child”.

The full case report for ME v London Borough of Southwark [2017] UKUT 73 can be viewed online.

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