The fundamental principle underpinning the law is that where a parent of a child with SEN, or a young person with SEN, wants a place in a mainstream setting it must never be denied it on the basis that mainstream is unsuitable, or that their needs or disabilities are too great or complex. Inclusive education is one of the principles stated to underpin the SEN and Disability Code of Practice (the “Code”).

Whatever the law says, some parents meet mainstream schools that are unwelcoming and attempt to dissuade them from applying for admission. The Code says (paragraph 1.27): 

“The School Admissions Code of Practice requires children and young people with SEN to be treated fairly. Admissions authorities:

  • must consider applications from parents of children who have SEN but do not have an EHC plan on the basis of the school’s published admissions criteria as part of normal admissions procedures
  • must not refuse to admit a child who has SEN but does not have an EHC plan because they do not feel able to cater for those needs
  • must not refuse to admit a child on the grounds that they do not have an EHC plan.”

 

Children and young people without EHC plans 

Children and young people without education, health and care (“EHC”) plans must be educated in a mainstream school (see the section on different types of schools for definitions of these terms) (section 34(2) of the Children and Families Act (“CAFA”) 2014). There are only a few exceptions to this. Their parents or carers could choose to pay for them to attend an independent school, or to home school them. An LA must not place a child or young person without an EHC plan in a special school or institution except in very limited circumstances. Those exceptions nearly all require (amongst other things) the prior consent of children’s parents or of young people themselves when over the age of 16. 

Children and young people with EHC plans 

If a parent of a child, or young person, wants that child or young person to attend a mainstream setting, the LA can only refuse if a mainstream placement would be incompatible with the efficient education of others, and there are no reasonable steps the LA could take to avoid this (section 33 CAFA 2014). The degree or complexity of their needs or disabilities, and the suitability of mainstream, is not a reason in law for refusal of mainstream. This applies not just to attending a mainstream school or college but also to taking mainstream courses. 

This is an important right. The LA cannot send a child or young person to a special school when it is not what parents or the young person wants. This is true even if the LA view is supported by professionals.

It is important to note, however, that this is a right to mainstream education but not necessarily a right to a particular mainstream school.

Reasonable steps

If the LA can show that a child or young person’s presence would be incompatible with the efficient education of others (case law requires compelling evidence to back any such claim), then it must also be able to show that there are no ‘reasonable steps’ it can take to remove the incompatibility.

The Code says that “the term ‘others’ means the children or young people with whom the child or young person with an EHC plan would be likely to come into contact on a regular day-to-day basis”.

The Code lists examples of reasonable steps at paragraphs 9.91 to 9.94. The Code concludes this section by advising:

A decision not to educate a child or young person in a mainstream setting against the wishes of the child’s parent or the young person should not be taken lightly.

If parents or young people are faced with such a decision, they need to make sure that the LA has:

  • identified, with concrete facts, what it is about the child/young person’s presence that would prevent the efficient education of others; and
  • identified the ‘others’ whose education would be rendered inefficient; and
  • considered all possible reasonable steps which might remove the problem.

Any argument like ‘the child’s difficulties are too extreme for a mainstream school’ will not succeed if the parents were to challenge the decision in the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). The Code suggests that only extreme and/or persistent behavioural difficulties may produce an incompatibility that is not curable by reasonable steps: “where the child or young person’s behaviour systematically, persistently or significantly threatens the safety and/or impedes the learning of others” (paragraph 9.93).

Once a school or college is named on an EHC plan, it must admit that child or young person (section 43 CAFA 2014).

The courts have considered the right to a mainstream education and have concluded that it is very difficult for an LA to deny a child or young person a mainstream place when that is what they or their parents want. You can find past cases about this in our case law section.

You can find more information in the sections on choosing a school when you have an EHC plan, objecting to an LA’s proposed amendments to an EHC plan, and appealing to the SEND Tribunal.

For more information about duties on mainstream settings to ensure children and young people with SEN are properly supported and included in the same way as children or young people without SEN, see the section on how your nursery, school or college should help.