Case overview 

This case considered what a local authority (LA) must show to prove that the attendance of a child or young person at a particular setting was incompatible with the efficient education of others.  The Children and Families Act 2014 uses the same legal test as the Education Act 1996, which this appeal was heard under, so this case is still relevant.

The parent of D, who had special educational needs and a Statement, appealed against a decision of the SEND Tribunal that D would not be educated at their choice of secondary school.

The SEND Tribunal agreed with the LA that D’s attendance at the school the parent had asked for would have an impact on the efficiency of the education of the other children which made his attendance incompatible with the provision of efficient education. The school (a maintained mainstream secondary school) had already accepted applications over its admissions number for the relevant year and had argued that the number of pupils that had Statements had placed a strain on the staff and prevented them from fully meeting the needs of pupils with and without Statements.

The parent appealed to the Upper Tribunal, which agreed that the SEND Tribunal hadn’t applied this test correctly:

“There needed in the circumstances to be some clear identification of just what difference it was found that D's admission (not the admission of all four children with appeals pending) would have and to the efficient education of which children... so as to meet the strong test of incompatibility.”

What does this mean?

The reference to the “strong test of incompatibility” means the test is a high threshold for the LA. The LA (and SEND Tribunal) needs to have clear evidence of the difference the admission of that child or young person will make, and which pupils will be affected.

The full case report for NA v London Borough of Barnet [2010] UKUT 180 (AAC) can be viewed online.

For more information, see our section on choosing a school when you have an EHC plan.