[2025] UKUT 068 (AAC)

X has been diagnosed with dyslexia, dysgraphia and dyscalculia, with significant difficulties with working memory, processing speed and expressive language. He has been identified by the Council as having ALN.

He is of an age at which he was due to transition into year 7 (i.e. from his primary school into a secondary school) in September 2024.

Various draft IDPs were produced in early 2023. On 19 October 2023, Mr & Mrs X, who did not agree with the IDP then proposed, requested the Council to reconsider it under section 27 of the 2018 Act. They confirmed their parental preference for X to be educated at School C, an independent school in Cardiff, and they asked for this school to be named in Section 2D of the IDP. Relying on a report of Patricia Kershaw, an Educational Psychologist, they also asked for Section 2B of the IDP to be changed to specify 27.5 hours of TA time per week.

Under the Council’s Admissions Process, the deadline for an application for a place for year 7 in September 2024 was 21 November 2023. As Mr & Mrs X had sought a reconsideration of the IDP, the Council’s Achievement Leader for Inclusion (Ms Cath Keegan-Smith) telephoned Mrs X to explain the reconsideration process (and how long it might take), and asked whether an application through the Admissions Process had been made in respect of X. Mrs X said that she had not made, and would not be making, an application through that Process; and she would not be sending X to a “Cardiff school”, or any maintained school, as her two older children had been to School A and she was not happy with that experience. In the event, Mr & Mrs X did not make any application in that Admissions Process at that time.

The final IDP was issued on 9 February 2024, in which the Council confirmed that, in its view, X’s ALP could be secured and delivered at any mainstream school in Cardiff and so it had not named any particular school in the IDP. Nor did the IDP specify 27.5 hours of TA time.

Mr & Mrs X appealed to the ETW in respect of Section 2B of the IDP (they appealed the failure to specify 27.5 hours of TA time per week) and Section 2D (they initially appealed the failure to name School C, an independent school, as the specified school: but, because Mr & Mrs X had not secured a place at School C, they later amended their Case Statement so that School A, a maintained school, rather than School C was expressed to be the parental preference).

The hearing of that appeal was fixed for 10 July 2024. However, the hearing date was eventually vacated at the request of Mr & Mrs X (i) to allow consultation with School C to take place, and (ii) because Ms Kershaw was unavailable on 10 July. The hearing was refixed for 9 and then 10 September 2024.

In the meantime, on 17 May 2024, Mr & Mrs X made an application for a place at a maintained school through the Council’s Admissions Team and under the Admissions Process, naming School A (6.1 miles from the home address) and School D (3.7 miles away) as their two parental preferences. In a letter dated 12 June 2024, the Admissions Team confirmed that it was unable to offer X a place at either school. Each was full, with a substantial waiting list. It advised that there were available places at six secondary schools, the closest of those schools to X’s home being School B (1.9 miles, and therefore within walking distance). School B confirmed that it had the facilities to meet X’s identified ALP.

That 12 June 2024 letter enclosed details of how to appeal to the Independent School Admission Appeals Panel, with a deadline for an appeal of 26 June 2024. On 20 June, and again on 27 June 2024, the Admissions Team emailed Mrs X with details of schools with places in year 7 for September 2024. Mr & Mrs X made no appeal, nor have they made any further application for a place at any maintained school. Consequently, X did not obtain a place through the Admissions Process, nor was he placed on any waiting list for any school.

On 6 September 2024, as a result of the consultation that had taken place, School C confirmed that it could not provide for X’s ALN. Mr & Mrs X therefore reverted their parental preference to School A and, as part of the appeal, asked for that school to be named in Section 2D of the IDP.

Following the hearing, on 10 October 2024, the ETW Panel issued a Decision allowing the appeal, and (i) requiring School A to be named in Section 2D of the IDP, and (ii) requiring Section 2B of the IDP to specify 27.5 hours of TA time per week.

Despite several applications to the ETW and this tribunal for a stay of that Decision pending appeal having been refused, the Council has not secured a place for X at School A. Mr & Mrs X have refused to accept the Council’s offer to place X in School B (or another school in Cardiff with places). The unhappy result has been that X has been out of school since he left primary school in July 2024.

I now turn to the Council’s grounds of appeal. It is convenient to deal with Ground 2 first.