Case overview

Parents of a 5 year old child with autism spectrum disorder, global developmental delay and sensory processing difficulties brought a SEND Tribunal appeal against the LA’s decision not to name their choice of school (an academy special school) in the child’s EHC plan. The LA had declined to name the school on the basis that it would be incompatible with the provision of efficient education for others. This is one of the limited reasons set out at section 39(4) of the Children and Families Act (CFA) 2014 which permits an LA to reject a parent or young person’s choice of educational setting.

In the first instance, the SEND Tribunal upheld the LA’s decision, having found the school was “full” and had “little leeway” and that the child required adult support in numerous ways.  The parents appealed this decision to the Upper Tribunal.

The Upper Tribunal Judge found the SEND Tribunal had not explained why that “material effect” on the quality of provision would unavoidably result in the quality of education provided to those other pupils falling below the threshold standard of “efficient education”. 

Due to this, the Upper Tribunal set the SEND Tribunal’s decision aside. This means that the case needed to go back to the SEND Tribunal to be reheard and the decision remade.

What does this mean?

This case confirms that the test at section 39(4) CFA 2014 is a sophisticated one and requires a degree of precision and/or detail as to:

• Which other children’s education would be affected by a child attending the school?
• Whether the standard of those children’s education is currently at, or above, the ‘efficient education’ standard?
• What effect would the child’s attendance have on the standard of those other children’s education?
• If the effect was to reduce the standard below that of ‘efficient education’, was that unavoidable, or, for example, could adjustments be reasonably made to avoid that effect?

The full case report for OO and BO v London Borough Bexley: [2023] UKUT 223 (AAC) is available online.

For more information see our page on choosing a school/college with an EHC plan and appealing against the school or other setting named in your EHC plan.