Case overview

This case explains the way the legal tests must be applied when a parent of a child with an EHC plan or the young person wants mainstream education named in the education, health and care (EHC) plan.

Section 39 of the Children and Families Act (CFA) 2014 allows a local authority (LA) to refuse to name the parent or young person’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. 

However, section 33 of the CFA 2014 sets out the right to a mainstream education and makes clear that 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 want 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.

In this case, the Judge said: 

“[Sections 33 and 39] 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.”

He also said: “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.”

The Judge explained that section 39 CFA 2014 should be considered first, and section 33 only applies if the LA does not agree to the parents’ request for mainstream education under section 39.  Therefore, a mainstream school initially rejected under section 39 may still end up having to be named under section 33 (if the legal exception to the right to mainstream education does not exist).

In this case, the Judge (Judge Jacobs) quoted another case called Harrow Council v AM [2013] UKUT 157 (AAC), which said: “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 an LA or the SEND Tribunal is considering what placement should be named in Section I of an EHC plan and applying section 33, it must assume that reasonable steps would be taken to integrate the child into mainstream, and 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 – cost is only relevant when considering how reasonable the step is (as are other factors).

The Judge then looked at the legal exception under section 33 and what was meant by “incompatibility”. He considered NA v London Borough of Barnet UKUT 180 (AAC), 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 the test of incompatibility must be carried out using this definition.

The term ‘incompatible’ means “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”.

What does this mean?

Where a child or young person has an EHC plan and mainstream education is requested, an LA is only going to be able to specify a non-mainstream placement if 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.  This is a high threshold.

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.