[2025] UKUT 068 (AAC)

Because the 2018 Act is an “Education Act” for the purposes of section 9 of the 1996 Act (see paragraph 12 above), local authorities must have regard to the general parental preference under section 9 when exercising any of its powers and duties. In order to have regard to parental preference, the Council (and, on appeal, the ETW) must determine whether either of the exceptions to the general principle under section 9 applies before turning to the exercise of its powers under section 48.

Section 9 cannot be read in isolation: it must now be read with section 6 of the 2018 Act, which requires local authorities to have regard to the views, wishes and feelings of the child and the child’s parents; and, notably, the parental wishes in relation to the school in which the child’s education is to take place (see paragraph 24 above). Because there is no express duty on a local authority to consider parental preference elsewhere, unless section 9 is considered first, parents have no opportunity to put forward their preference of school for the authority to consider. In other words, contrary to the statutory requirements, parental choice is excluded from the section 48 analysis.

If the 2018 Act is interpreted to restrict a parent’s ability to put forward a preference of school placement for their child, then it would fall foul of, not just the requirements of section 9 and section 6 of the 2018 Act, but also Article 5 of the UNCRC (again, see paragraph 24 above), and Article 2 Protocol 1 of the ECHR read with section 6 of the Human Rights Act 1998. It must be construed so as to be consistent with those obligations on the state, i.e. in a way respecting parental choice of school. The only way of doing that is to consider section 9 first, and then to perform the analysis required by section 48, through the prism of section 9, as the ETW Panel did.

In considering section 9 in this context, the approach set out by this tribunal in IM v London Borough of Croydon [2010] UKUT 205 (AAC) is well-established and correct. In that Decision, Upper Tribunal Judge Levenson held that, where parents and a local authority disagree as to which school a child with special educational needs should go, three questions should be addressed by the authority or, in its shoes, the tribunal:

“(a)

Are both schools appropriate to meet the need? A school that is not appropriate cannot be named.

(b)

If they are both appropriate, which is the school preferred by the parents? Unless (c) applies that school must be named.

(c)

Would naming the school preferred by the parents be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so the school suggested by the local authority must be named.”

In this case, the ETW Panel expressly adopted that three-stage approach (in [131]-[144] of their Decision) – as Mr Friel submitted they were right to do – concluding that (i) the Council accepted that School A and School B were each appropriate to meet X’s ALN; (ii) the school of parental preference was School A; and (iii) School A would not fall within the section 9 proviso, i.e. it was not suggested that it was incompatible with the provision of efficient instruction and training, and, whilst School A would involve additional public expenditure, given the parental preference, the additional public expenditure would not be unreasonable.

In the light of those findings, the ETW Panel then proceeded to consider section 48. Mr Friel submitted that the ETW Panel properly performed the balancing act that section 48 requires through the prism of section 9; and the Panel were entitled to conclude, on the basis of that analysis, that X’s interests required the ALP identified in the IDP to be made at School A.

As described above, section 9 provides that, when exercising their functions under the Education Acts, relevant decision makers (including local authorities) must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents. The provision does not require an authority to comply with the wishes of the parents of every child so far as school choice is concerned – which, because of capacity issues alone, would be impossible – but the process by which places at maintained schools are allocated by a local authority must have built into it means by which parents can make their wishes in this regard known to the authority, and a mechanism by which those wishes are taken into account by the authority. Similarly, the process must respect the views of the child and the child’s parents under section 6 of the 2018 Act, Articles 3 and 5 of the UNCRC, and Article 2 Protocol 1 of the ECHR.

So far as children with special educational needs are concerned, the mechanism under the 1996 Act is – or, at least, includes – Schedule 27 paragraph 3. That requires a local authority to place a pupil with special education needs in the school of their parents’ expressed preference unless the case falls within the two prescribed exceptions.

The ETW Panel appear to have misunderstood the Council’s submissions in relation to section 9, suggesting that the Council submitted that “section 9 does not apply in this appeal as the duty previously under the Education Act 1996 Schedule 27 paragraph 3(3) to name a parents choice of school unless exception could be relied upon are just not persuasive”. It was not the Council’s case that section 9 did not continue to apply in Wales; but, rather, that effect was not given to the general principle of parental preference through Schedule 27 paragraph 3. Effect is given to section 9 by a combination of section 48 and the Admission Process made to satisfy the requirements of the School Standards and Framework Act 1998.

Section 48 is narrower than Schedule 27 paragraph 3, in the sense that it positively proscribes the specification of a particular school in an IDP except where the two criteria set out in that section ((i) 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(ii) it is appropriate for the child to be provided with education at the school) are satisfied. So, if there is a presumption under Schedule 27 paragraph 3 that a child with special educational needs would be admitted to a school of parental choice, then there is certainly no such presumption under section 48. The default position under section 48 is that no school is specified in an IDP.

However, section 48 is not the only way in which, under the regime in Wales of which the 2018 Act is a part, effect is given to the principles set out in section 9 and the other relevant provisions concerning the engagement with, and wishes/preferences of, a child and their parents in the context of selection and assignment of school places. There remain in place the arrangements for school admissions generally resulting from sections 86 and 89 of the School Standards and Framework Act 1998, and an authority’s School Admissions Policy/Process produced under those provisions. Under them, generally (and not simply in the context of children with ALN), an authority is required to obtain and then reflect parental schooling preferences in a systematic way which, having been the subject of widespread consultation, is considered appropriate and fair to all relevant children (and their parents). These arrangements allow parents to express school preferences, and require the authority to take such preferences into account in an open and transparent way.

There is no suggestion in this case that the policies and procedures set out in the Council’s Admissions Process are unlawful, unfair or unclear: and the Council made it clear to Mr & Mrs X that, apart from section 48, parental preference in schooling could and would be considered through the Admissions Process. Mr & Mrs X were made aware of the need to make an application through that Process in case, for whatever reason, they were unsuccessful in having a school named in the IDP. In November 2023, before the deadline for applications for admission schools for year 7 in September 2024, Ms Keegan-Smith said that she contacted Mrs X by phone and explained, not only the IDP reconsideration process, but also the Admissions Process including the opportunity within that process for a parent to express a preference for particular maintained schools and the need to make an application in that process by 21 November 2023. Mr & Mrs X chose not to make an application, but rather only pursue an application (and then an appeal to the ETW) to have an independent school (School C) specified in the IDP. An application was not made through the Admissions Process until Mr & Mrs X made a second round application in May 2024, by when their two preferred schools had no spaces available. Mr & Mr X did not appeal that decision, as they could have done through the Admissions Process.

In support of his submission, Mr Friel relied heavily on IM – as did the ETW Panel in its Decision. However, such reliance is misplaced. It was, of course, a case under the 1996 Act; and Judge Levenson expressly stated that the requirement for the three identified questions to be addressed arose from, not just section 9, but also section 324(4) of the 1996 Act. The questions are based on the presumption, inherent in the 1996 Act scheme, that a school should be named in a statement. Therefore, if competing schools are each appropriate, the three questions result in the naming of one of the schools. To the contrary, the 2018 Act has no such presumption, and not only specifically contemplates no school being named in an IDP but sets that as the default position. The questions posed in IM in relation to specifying a school are not questions that arise out of simply section 9 but rather questions which arise out of the 1996 Act scheme as a whole. It is wrong to assume that the IM analysis will be equally applicable to the (very different) 2018 Act scheme.

That the IM analysis and questions are inapplicable to the 2018 Act scheme is apparent from the face of the ETW Panel Decision itself. Having been persuaded by Mr Friel to answer the three questions posed in IM first, the Panel answered those questions as follows: (i) School B and School A were both appropriate schools (paragraph 133), (ii) the parental choice was School A (paragraph 134), and (iii) School A was not incompatible with the provision of efficient instruction and training, and parental preference outweighed the additional public expenditure or any additional public expenditure was rendered reasonable in all the circumstances (including, of course, parental preference) (paragraph 135-144). Having given those answers, under IM, the Panel were bound to name School A (“… that school must be named…”). Those questions necessarily answer the ultimate question of which school must be named, and so the school in which the child must be placed. Although the ETW Panel in fact went on to discuss section 48 (albeit in only in a very limited way), there would be no room for any such discussion under IM. On the basis of Mr Friel’s contentions, section 48 would be effectively redundant.

However, under the 2018 Act regime, section 48 is clearly key. The 2018 Act scheme requires, under section 48, consideration of whether the two conditions that not only allow but require a school to be named in the IDP have been satisfied, i.e. “(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…”. This requires consideration of all relevant considerations, including those set out in paragraph 23.59 of the ALN Code. In considering condition (a), the following are worthy of note.