Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 226 (AAC)

Fecha: 02-Jul-2025

9 Pupils to be educated in accordance with parents’ wishes

9 Pupils to be educated in accordance with parents’ wishes.

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authoritiesshall 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.

24.

The effect of section 9 is therefore that regard must be had to a parent’s wishes, but only insofar as that is compatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure. If the parent’s wishes are not compatible with those matters, then there is no duty to have regard to them.

25.

It is well established that section 9 needs to be considered when deciding whether a school is ‘appropriate’ for the purposes of section 39(5) of the CFA 2014: see C v Buckinghamshire County Council and The SENT [1999] ELR 179 (on the EA 1996 regime) and S v Worcestershire CC (SEN) [2017] UKUT 92 (AAC) at [88] (on the CFA 2014 regime).

26.

It is also established that section 9 is relevant in cases where parental preference is for mainstream, as Judge Ward explained in KC v London Borough of Hammersmith and Fulham [2015] UKUT 179 (AAC). In that case, the parent had expressed a first preference for a special school, but a fallback preference for a mainstream school. Regarding the preference for a mainstream school, Judge Ward held:

19.

At that point, therefore, when the fallback preference had been triggered, a local authority wishing to persist with placement in a special school would not be able to say that placement in a mainstream school would be incompatible with the wishes of the parent for the purposes of s.316(3) (even though there would not [the ‘not’ appears to be a typographical error] have been such incompatibility earlier, when the parent’s preference had been for a non-mainstream school). The fallback preference could be defeated if the authority could show that a mainstream placement would be incompatible with the provision of efficient education for other children, but that is not suggested to be the case here. Therefore, given the fallback preference had been expressed and the acceptance of its validity, the local authority was bowing to the inevitable in agreeing to mainstream provision.

20.

The key questions in this case are, having arrived at this point in the

analysis, (a) whether section 9 has any further life and (b) if it does, how it falls to be applied.

21.

Mr Bowers’ submission was initially that s9 is relevant at earlier stages, but not thereafter. First, it requires to be applied to the original school preferred by the parent, R Academy, as it was, to the disadvantage of that preference. Then, he says, s9 has to be applied to a comparison of the parent’s fallback (T Academy) and the authority’s preferred school (S High School), which would equally be to the disadvantage of the preference for T Academy. Thereafter, that is said to be the end of the relevance of section 9.

22.

I acknowledge that the Court of Appeal in MH said that it was necessary to apply sch 27 para 3 at the outset and that that provision has no further relevance when a s316 exercise is being undertaken. It would however be in my view an over-simplification to treat sch 27 para 3 (when a qualifying preference is expressed for a maintained school) and s9 (when the preference is for a non-maintained school) as direct equivalents and from that to argue that the relevance of s9, like that of sch 27 para 3, is confined to the front end of the logical process. The former is a provision applicable within a defined procedure, which – subject to defined exemptions - cuts across other provisions so as to create rights: cf. MH at [69]). The latter merely sets out a principle to which a local authority is required to have regard, among other considerations. It also is subject to defined exemptions but its field of application is far wider (the exercise of functions under the Education Acts) and it operates outside the ambit of a defined procedure.

23.

At this point the thought process is still heading towards the ultimate

naming of a school under s324(4). The field of enquiry has been moved on under the impact of s316 and the fallback preference expressed, but to the extent that questions of parental preference continue to arise, I can see no reason to conclude that just because s9 has already been applied to a logically prior situation, that is the end of the scope for its application.

Suppose that it has been accepted because of s316 that a mainstream

school needs to be named: if there are two candidate schools, otherwise

equal in all respects, why should s9 not be applied to confer additional weight on the parent’s preference? Further, because s9 involves something of a balancing exercise, there may be cases where parental preference tips the balance where the schools are not in all other respects equal. Not to apply it would appear to be to fly in the face of the breadth of section 9, acknowledged in Mulla v Hackney Learning Trust [2014] EWCA Civ 397; [2014] ELR 350.

24.

While I agree with Mr Bowers that it is not the function of s9 to reintroduce into consideration of whether a mainstream placement is required factors which ss316 and 316A have clearly excluded, I do not accept that the limitations of ss 316 and 316A on when mainstream education need not be provided so impinge upon the ground covered by s9 that they will in all circumstances deprive the latter section of further effect, which appeared to be the ground to which he moved in the course of argument. When s316 applies and is given effect to via s324(4) it is those provisions which delimit an authority’s powers and duties: s9 provides a mandatorily relevant factor to be taken into account in exercising them but cannot rewrite their extent. In Bury MBC v SU [2010] UKUT 406(AAC); [2011] ELR 14 I expressed the view at [28] and [29] that s9 cannot constrain the operation of s316 and I remain of that view for the reasons given; but that is not to say that s9 may not still be of relevance in cases where full effect has been given to s316, yet questions of parental preference may still remain: that was not the situation in Bury. For instance, there might be two mainstream schools, one costing £60,000 per year and one £80,000 a year to provide for a pupil with special educational needs in a manner which avoided incompatibility with the provision of efficient education for other children. Those substantial costs will not in general terms be relevant to the decision to place the child in a mainstream school as opposed to a special school: see e.g. Bury at [23], and Harrow LBC v AM [2013] UKUT 0157 (AAC). But as to which of the two, if the parent’s preference is for the more expensive, s9 continues to have an obvious role. As regards the proviso in s9 that regard is to be had to the wishes of the parents “so far as that is compatible with the provision of efficient instruction and training”, that is - to the extent that other children are concerned -substantially saying the same as does s316(3)(b) and thus there may be

limited scope for the proviso to apply once it has been determined that the provision required by s316 is to be mainstream. Insofar as there is a

difference (i.e. notably as regards the provision of efficient instruction and

training in relation to the pupil concerned), I do not see any necessary conflict in applying section 9 in a context where, having first applied s316 and 316A in accordance with their terms, one has arrived at the conclusion that mainstream education is required and the only issue is as to which of two schools it should be provided at.

25.

I do not see the above views as inconsistent with the observations of the Court of Appeal at [80] of MH. Where the Court observed (strictly, obiter) that

“In the context of the s316 process, the Tribunal must, in our judgment, consider all candidates for nomination on an equal footing, whether they are proposed by the parent or by the LEA…”

it was doing so in the context of emphasising that the rights conferred by

sch27 para 3 did not apply to the s316 process. It does not appear that it was invited to consider s9 and it did not do so.

27.

It is thus clear from Judge Ward’s decision in that case that, where the application of the ‘right to mainstream’ in section 33 still leaves two mainstream schools ‘on the table’, the local authority/Tribunal must return to section 39(5) and name an ‘appropriate’ school or type of school. At that stage, section 9 will be relevant to deciding which school it is ‘appropriate’ to name in Section I.

28.

As Judge Ward also notes in that case, the duty under section 9 is a duty to ‘have regard’, not an obligation to achieve a particular outcome. It does not create any ‘right’ (defeasible or otherwise) to have a particular school named in an EHC Plan. The nature of the duty in section 9 was held to be as follows by the Court of Appeal in Haining v Warrington Borough Council [2014] EWCA Civ 398, [2014] AACR 28at [31]:

31.

None of these points persuades me that the natural meaning cannot have been intended by Parliament. The starting point is that section 9 does not impose a duty on a local authority to act in accordance with parental wishes (provided that to do so would be compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure). It is a duty to “have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents” subject to those qualifications. As Denning LJ said in Watt v Kesteven County Council [1955] QB 408 at p 424:

“Section 76 [of the 1944 Act the predecessor of section 9 of the 1996 Act] 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.”

29.

That said, I observe that, as Judge Mitchell put it in LB of Hammersmith and Fulham v L [2015] UKUT 523 (AAC), [2016] AAC 18 at [40], “cases tend in my experience to be argued on the basis that, if there is no unreasonable expenditure, effect will be given to parental preference”. That approach can be traced back at least to the decision of the Court of Appeal in Oxfordshire CC v B [2001] EWCA Civ 1358, [2002] ELR 8where, at [16]-[18], Sedley LJ held that what section 9 requires is for a balance to be struck between the educational advantages of the placement preferred by the parents and the extra cost to the local authority. Subsequent authorities (such as EH v Kent County Council [2011] EWCA Civ 709 and the Hammersmith and Fulham case) have considered in detail how costs should be calculated, on the premise that the proper calculation of the costs of the two placements will be determinative. However, it seems to me that this is because in most such cases the local authority will not be advancing any alternative rational reasons for refusing to comply with parental preference. It does not mean that the effect of section 9 is anything other than a ‘have regard’ duty, as the Court of Appeal confirmed in Haining.

30.

Finally, as regards section 9, I need to deal with the meaning of “incompatible with the provision of efficient instruction and training” in that section. It has been held that this encompasses both the efficient instruction of the child themselves and others with whom they will be educated: R (Hampshire CC v R) [2009] EWHC 626 (Admin), [2009] ELR 371 at [30]-[36] per Stadlen J. Judge Jacobs in ME v London Borough of Southwark [2017] ELR 209 drew together the authorities on this issue as follows (albeit that case was concerned with incompatibility with the efficient instruction and training of other children at the school):

[20] Essex County Council v SENDIST and S [2006] EWHC 1105 (Admin), [2006] ELR 452 was an efficient resources case. Gibbs J at [29] described ‘incompatible’ as a strong term, if anything stronger than ‘prejudicial to’, although nothing turned on the difference in that case.

[21] In deciding whether attendance would be incompatible with the efficient education of others, the test to be applied is whether the impact of attendance would be ‘so great as to be incompatible with the provision of efficient education’ to others: Hampshire County Council v R and SENDIST [2009] EWHC 626 (Admin), [2009] ELR 371, at [47]. It is not sufficient to show that attendance would have some impact. It is necessary to identify what that impact would be and then consider whether that would be incompatible. This applies to s 33(2)(b) and 39(4)(b).

[22] Upper Tribunal Judge Mesher considered this issue further in NA v

London Borough of Barnet [2010] UKUT 180 (AAC), [2010] ELR 617, also an efficient education case. he said:

‘[33] Mr McKendrick … accepted that it was not enough … that the quality of education provided for other children would be reduced from the very highest standard to something a little lower. But, on the other hand, he submitted, it did not have to be shown that no meaningful education at all would be provided for some other child or, as the head teacher had put it in his statement, the admission of the child in question would tip the school into failure.

[34] I agree with Mr McKendrick in that respect … “Efficient education” indicates a standard, not the very highest desirable standard or the very basic minimum, but something in between … Although “incompatible” is indeed a very strong word, indicating that there is no way of avoiding the admission of the single child involved reducing the quality of education provided to some other children with whom he would be educated below that standard, its force must be applied in the context of that standard.

[35] I do not think that the Upper Tribunal should go any further in

attempting to define the standards embodied in “efficient education”. I merely draw attention to the guidance in para 40 of the Inclusive Schooling document that it means:

“providing for each child a suitable and appropriate education in

terms of a child’s age, ability, aptitude and any special educational

needs he/she may have.”

[36] What I take in particular from this section of discussion is that

the test of incompatibility with the efficient education of other children under paragraph 3(3) is also quite a sophisticated one. It must in my judgment be applied by reference to the circumstances only of the child in question and other children who are already known or predicted to be in the category of those who would be educated with the child. Although the overall context of the school will be relevant, especially in relation to whether adjustments can be made elsewhere to avoid an incompatibility that would otherwise arise, the circumstances of other children who might possibly be admitted, particularly as the result of other outstanding appeals, cannot be taken into account. Depending on the circumstances of particular cases, it will often be necessary for a

tribunal to identify just what difference it finds that the admission of the single child would make before it can go on to make the judgment about whether the degree of impact.’