[2025] UKUT 068 (AAC)

Before looking at the 2018 Act in respect of places at a named school, it is necessary to consider provisions in the 1996 Act, some of which have been repealed but others remain in force in Wales.

Section 9 of the 1996 Act (which materially replicated its predecessor, section 76 of the Education Act 1944, and which remains in force in Wales) provides (so far as relevant):

“In exercising or performing all their respective powers and duties under the Education Acts,… local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”

References in this Decision to “section 9” are to section 9 of the 1996 Act, unless otherwise appears. I shall refer to the proviso in section 9, “so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”, as “the section 9 proviso”. For the purposes of section 9, the 2018 Act is an “Education Act” (section 578 of the 1996 Act as amended by section 101(2) of the 2018 Act).

Effect is given to this principle generally through section 86 of the School Standards and Framework Act 1998, headed “Parental preferences”, which also continues to apply in Wales. That provides (so far as relevant):

“(1)

A local authority shall make arrangements for enabling the parent of a child in the area of the authority –

(a)

to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority’s functions, and

(b)

to give reasons for his preference.

…

(2)

Subject to subsection (3)…, the admission authority for a maintained school shall comply with any preference expressed in accordance with arrangements made under subsection (1).

…

(3)

The duty imposed by subsection (2) does not apply –

(a)

if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources;…

…

(5)

No prejudice shall be taken to arise for the purposes of subsection (3)(a) from the admission to a maintained school in a school year of a number of pupils in a relevant age group which does not exceed the number determined under section 88C or 89 as the number of pupils in that age group that it is intended to admit to the school in that year…”.

Section 88C concerns admission arrangements in England, and is not relevant to this appeal. Section 89, under the heading “Admission arrangements: Wales”, requires each local admission authority for a maintained school in Wales, before each school year and after prescribed consultation, to determine the admission arrangements for that year. The Council is such an authority, and it publishes a policy document each year, which sets out both the procedure for applying to schools (including how parental preferences can be expressed) and the way in which the local authority will deal with such applications (“the Admissions Process”).

Turning to particular educational needs, how these are dealt with under the 2018 Act is very different from the 1996 Act. For the purposes of this appeal, it is unnecessary to consider all the differences between the schemes. The focus can be firmly on the provisions for identifying and specifying a school to which a child who has particular educational needs must then be admitted.

Under the 1996 Act, following an assessment, a local authority is required to produce, and implement, a statement of special educational needs (“an SEN Statement”) which sets out both the needs and the special educational provision to be made for the purpose of meeting those needs (section 324 of the 1996 Act). The differences between “special educational needs” under the 1996 Act and “additional learning needs” under the 2018 Act are not relevant for the purposes of this appeal.

Section 324(4)(a) of the 1996 Act requires a statement to specify the type of school the local authority considered would be appropriate for the child. As for the specification of a particular school, although a local authority has no absolute duty to name a school in a statement (Richardson v Solihull Metropolitan Borough Council [1998] ELR 319 at page 327), the general rule is that parental choice of school will be determinative. This is expressed in paragraph 3 of Schedule 27 to the 1996 Act, headed “Making and maintenance of Statements under Section 324”, which provides:

“(1)

Every local authority shall make arrangements for enabling a parent –

(a)

on whom a copy of a proposed statement has been served….

… to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.

…

(3)

Where a local authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless –

(a)

the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or

(b)

the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.”

References in this Decision to “Schedule 27 paragraph 3” are to paragraph 3 of Schedule 27 to the 1996 Act.

In relation to putting into effect the principle set out in section 9, this provision is more specific than those deriving from the School Standards and Framework Act 1998 (see paragraph 12 above). It provides a presumption that an authority will name a school in line with identified parental preference, unless one of the two exceptions, (a) or (b), apply. The school named in an SEN Statement is required to admit the child (section 324(5)(b) of the 1996 Act).

The relationship between section 9 and Schedule 27 paragraph 3 has been considered in several cases to which I was referred.

In Watt v Kesteven County Council [1955] 1 QB 408, it was contended that, by virtue of section 76 of the Education Act 1944 (the predecessor of section 9, and in similar terms), if a parent’s wishes are not incompatible with the matters set out in the section 9 proviso, then effect has to be given to those wishes. That submission was, Parker LJ said (at page 429), “plainly wrong”. Denning LJ, with whom Birkett LJ agreed, put it this way (at page 424):

“… I do not think that section 76 means that every parent has a right to choose any [school] he likes. Section 76 does not say that pupils must in all cases be educated in accordance with the wishes of their parents. It only lays down a general principle to which the county council must have regard. This leaves it open to the county council to have regard to other things as well, and also to make exceptions to the general principle if it thinks fit to do so. It cannot therefore be said that a county council is at fault simply because it does not see fit to comply with a parent’s wishes…”.

That passage has been quoted with approval in later cases (see, e.g., Haining v Warrington Borough Council [2014] EWCA Civ 398; [2014] PTSR 811 at [31]); and, in other cases, the same substantive formulation has been expressed in different words. So, in Dudley Metropolitan Borough Council v Shurvinton [2012] EWCA Civ 346; [2012] PTSR 1393 (“Shurvinton”) at [14], Davis LJ (with whom Lord Neuberger MR and Richards LJ agreed) said this of section 9:

“It may be noted that although the section is headed ‘Pupils to be educated in accordance with parents’ wishes’ what the section actually provides, of course, is that the Secretary of State and local authorities are to ‘have regard to’ the general principle there set out, so far as compatible with the matters there set out.”

Section 9 is therefore conceptually quite different from Schedule 27 paragraph 3. As succinctly put by Laws J in C v Buckinghamshire County Council [1998] ELR 463 at page 469 (expressly approved by the Court of Appeal on appeal: [1999] ELR 179 at page 186):

“The former [i.e. section 9] requires the local education authority only to have regard to the principle of parental choice. But paragraph 3 of Schedule 27 requires the local education authority to give effect to parental choice, subject of course, to the important qualifications there stated. The difference is very important. Paragraph 3 of Schedule 27… has teeth which section 9 lacks.”

Or, as Davis LJ said in Shurvinton (at [46]): “… The general principle set out in section 9 of the 1996 Act does not have primacy, as it were, over the specific provisions of paragraph 3 of Schedule 27”.

Therefore, as the wording of the two provisions – confirmed in these authorities – makes clear, the difference between section 9 and Schedule 27 paragraph 3 is not simply one of specificity or rank: they have entirely different functions. Section 9 requires a local authority to have regard to the general principle of parental choice: it concerns taking the general principle of parental choice into account as a part of process. Schedule 27 paragraph 3, which puts the principle into practice, requires a local authority in a statement to specify the school of parental choice, unless the circumstances fall within the section 9 caveat: it therefore goes to, not process, but outcome.

Following the implementation of the 2018 Act, section 9 was retained in Wales and, in terms of process, it is supported at high level by section 6 of the 2018 Act (which requires those exercising functions under Part 2 of that Act to have regard to, amongst other things, (i) the views, wishes and feelings of the child and the child’s parents, and (ii) the importance of the child and the child’s parents participating as fully as possible in decisions relating to the exercise of the function concerned) and sections 7 and 8 (which impose an express duty to have regard to the United Nations Convention on the Rights of the Child (“the UNCRC”) and the United Nations Convention on the Rights of Persons with Disabilities). I was specifically referred to Articles 3(1) and 5 of the UNCRC, which require the best interests of the child to be a primary consideration in all actions concerning children, and an obligation on the state to respect the responsibilities, right and duties of parents and other persons legally responsible for a child.

However, Schedule 27 paragraph 3, requiring an SEN Statement to name the school of parental preference except in two defined circumstances, was not retained in the 2018 Act scheme. Generally, under the new scheme, schools cannot be named in an IDP. The ALN Code identifies only two “specific circumstances” under the 2018 Act in which a school may be named in Section 2D of an IDP, namely:

It is common ground that (ii) does not apply in this case. This case is concerned only with (i), i.e. section 48.

In Annex 3 to the Explanatory Memorandum to the 2018 Act, section 48 is noted as the equivalent of, but a “substantive change” to, Schedule 27 paragraph 3(3). Section 48 provides (so far as relevant):

“(1)

Subsection (2) applies if a maintained school in Wales is named in an [IDP] prepared or maintained by a local authority for the purpose of securing admission of the child to the school.

(2)

The governing body of the school must admit the child.

(3)

Before naming a school under this section, the local authority must consult –

(a)

the governing body of the school, and

(b)

in the case of a maintained school where neither the local authority nor its governing body is the admissions authority for the school, the local authority for the area in which the school is located.

(4)

A local authority may only name a maintained school in an [IDP] for the purpose of securing admission of a child if –

(a)

the authority is satisfied that the child’s interest requires the [ALP] identified in his or her plan to be made at the school, and

(b)

it is appropriate for the child to be provided with education… at the school…”.

References in this Decision to “section 48” are to section 48 of the 2018 Act.

Paragraph 23.59 of the ALN Code sets out a non-exhaustive list of considerations which are said to be “likely to be relevant when considering whether to name a school” under section 48, namely:

“(a)

whether specific characteristics of the school make it especially good at securing the required ALP – this might include a variety of different matters, including the school’s physical characteristics;

(b)

whether the school has members of staff with specialist expertise or training;

(c)

whether the school has the required specialism in a low incidence provision, such as visual or hearing impairment;

(d)

it would be unreasonable for a more local school to provide the child’s ALP”.