[2025] UKUT 226 (AAC)

I have no difficulty in concluding that the local authority is right that the ‘reasonable steps’ duty in section 33(4) was not relevant in this case. In the light of the legal framework that I have set out above, and in particular the Court of Appeal’s decision in MH, Philip Mott QC’s decision in Medway and Judge Ward’s decision KC v London Borough of Hammersmith and Fulham, it is clear that the duty under section 33(2) to name a mainstream school unless that is incompatible with the wishes of the parent or the provision of efficient education for others is complied with if the local authority names a mainstream school in the EHC Plan. It is not the function of section 33 to provide a further specific right for parents to request a particular mainstream school. The right to request a particular school is dealt with in section 39. Further, section 33(4) is not imposing a general obligation on a local authority/governing body/proprietor/principal to take reasonable steps to prevent incompatibility with the efficient education of others in relation to every mainstream school a parent might request. Section 33(4) (like Section 33(3)) only applies where the local authority is relying on the exception in section 33(2)(b) to resist parental preference for a specific mainstream school (or, in the case of section 33(3), to resist parental preference for mainstream schools in the local authority’s area generally). In this case, the local authority was not relying on that exception. Section 33(4) did not apply.

I equally have no difficulty in concluding that the First-tier Tribunal erred in law in failing to address section 9 of the EA 1996 when considering whether it was ‘appropriate’ to name the local authority’s preferred school under section 39(5). It is clear from the authorities above that section 9 applied and needed to be considered at that stage.

The issue that is more difficult is whether that failure was material in this case. I do not accept that the fact that section 9 is only a ‘have regard’ duty rather than a duty to achieve a particular result means that it will always be an immaterial error if a Tribunal fails to have regard to it. It is clear from the authorities, particularly those in relation to costs that I have mentioned above, that in many cases the application of section 9 will in practice result in a particular outcome (eg the naming of the cheaper placement when the relative costs are properly calculated in accordance with the guidance in the authorities). It seems to me that in those cases that is because there is no other rational reason for not complying with the general principle that a child should be educated in accordance with the wishes of their parent.

In this case, neither party before the Upper Tribunal has advanced their case on the basis that the relative costs of the two placements would have determined the outcome one way or the other, although there was some suggestion to that effect in Mr Thomas’ submissions for the local authority. There was some evidence as to the costs of the two placements before the Tribunal, but the Tribunal did not consider that evidence because it did not need to for the purposes of section 39(4) having concluded that School O was not suitable. However, I note (for what it is worth) that the information provided as to the relative transport costs to the two placements is indicative that School O may be a significantly more expensive placement. If so, of course, application of Section 9 would result in School S being named regardless of the arguments that the parties have raised on this appeal.

The parties’ focus in this appeal as regards the application of section 9 has been on the First-tier Tribunal’s conclusion that School O was unsuitable. Mr Thomas says that the same factors would have led to School S being named if section 9 had been specifically addressed. Mr Chothi says that the Tribunal’s decision on suitability was flawed in ways that would have made a difference if section 9 had been considered.

One issue that is relevant to assessing whether or not the failure to have regard to section 9 is material in this case is whether or not the test in that section for whether a placement is ‘compatible with the provision of efficient instruction and training’ is the same thing in substance as the test in section 39(4)(a) of whether a placement is ‘unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned’. The parties were equivocal in their answers to this question when I asked them at the hearing, so the point was not fully argued, but it seems to me that, as a matter of ordinary meaning, the concept of “efficient instruction and training” is different to suitability. It is, for example, quite possible as a matter of ordinary English to conceive of teaching being suitable but inefficient or efficient but unsuitable. I further observe that, in the light of the authorities discussed above (in particular Judge Mesher’s decision in NA v London Borough of Barnet), ‘incompatibility’ is a strong test. It encompasses consideration of what can be done to avoid the incompatibility. In that respect, the test of ‘incompatibility’ can be regarded as carrying within it the need to consider similar matters to those that section 33(4) would have required the Tribunal to consider in this case, if it had applied, but with the difference being that, while section 33(4) is a duty to take reasonable steps to address incompatibility with the efficient education of others, section 9 would in addition require consideration of what steps could be taken to avoid incompatibility with the provision of efficient instruction and training for C herself. In contrast, I am not convinced that the test of whether a school is ‘unsuitable’ under section 39(4)(a) necessarily encompasses the same sort of consideration (although in the ordinary course the Tribunal will in deciding whether a school is suitable bear in mind the various statutory duties on the school and the local authority that I have referred to above to make appropriate provision for children with special educational needs).

It seems to me, therefore, that it is possible that if the Tribunal had considered section 9, it might have reached the conclusion that naming School O would not be incompatible with the provision of efficient instruction and training, so that (if the cost of both placements was equal) the Tribunal would have had to have regard to the general principle that C should be educated in accordance with her parents’ wishes. However, the situation would then have been that the Tribunal would still have had before it a choice to make between two ‘adequate’ schools (to borrow the neutral term used in that situation by the Court of Appeal in C v Buckinghamshire).In those circumstances, the Tribunal would have been required to compare the two schools again and decide which school should be named in Section I, having regard to the wishes of the parent, but not being bound to comply with them because that is not the effect of section 9.

It is at that stage of the analysis that it seems to me it can be said with certainty that consideration of section 9 would not have led to a different result in this case. That is because the Tribunal’s decision in substance contains all it needs to contain to constitute a proper application of section 9 to the question of which school it is ‘appropriate’ to name in Section I for the purposes of section 39(5):

Given its reasoning, it seems to me to be inevitable that if the Tribunal had considered section 9 it would still have arrived at the conclusion that School S was the ‘appropriate’ school to name in Section I. This case really is very much on ‘all fours’ with the C v Buckinghamshire case in this respect. As Sedley LJ explained in that case at 188:

Finally, I need to deal with Mr Chothi’s argument that the Tribunal should have adjourned to allow further evidence to be obtained from School O. I do not consider that the Tribunal erred in law in this case in proceeding on the basis of the evidence it had. The appellant was represented by an experienced advisor. She had not sought an adjournment because a witness from School O was not available, although it ought to have been obvious that the lack of a witness from the school would be disadvantageous to the appellant’s case. Although a Tribunal may err in law if it fails to raise the question of an adjournment of its own motion in circumstances where a party has not had a reasonable opportunity to put their case, or where the Tribunal does not have before it sufficient evidence to determine whether any school is suitable, or to determine some other issue that is crucial to the fair and just determination of the appeal, this was not such a case. The appellant had had a reasonable opportunity to advance her case and the Tribunal had sufficient evidence before it both to determine that School S was suitable and to make a determination about the suitability of School O. It could have had more evidence about School O, and it might have been better if it did, but it was not an error of law to proceed on what it had.

At the hearing (which was held in public), the appellant, through Mr Chothi invited me to make an order anonymising the appellant and C. He said that the appellant was ‘a very private person’ and that he considered the Upper Tribunal should in any event act of its own motion to protect the identity of C, given her age, needs and vulnerability. Mr Thomas for the local authority agreed. Both parties also agreed that in order to achieve anonymity for C it would in practice be necessary to anonymise the appellant and the schools.

I remind myself that I must not direct anonymity merely because the parties agree. The open justice principle is important, and publication of parties’ names is important to the effectiveness of that principle. However, these proceedings are concerned with the upbringing and education of a child whose age and needs are such that she can have no say in these proceedings. The case was heard in private before the First-tier Tribunal and the appellant (and C) could reasonably assume when they commenced these proceedings that their identities would not enter the public domain as a result. In this case, I consider that the appropriate balance between C’s rights under Article 8 of the European Convention on Human Rights is struck by holding this hearing in public and publishing this judgment. The names of C and the appellant add very little to the public interest in open justice in this case. On the other hand, the impact on them of their identities being included in this judgment (which will remain accessible to the general public online indefinitely) could be significant. I therefore make an order under rule 14 of the Upper Tribunal Rules in the terms set out at the start of this decision.