[2025] UKUT 226 (AAC)

Appeal No. UA-2024-001561-HS

RULE 14 ORDER

THE UPPER TRIBUNAL ORDERS that, save with the permission of this Tribunal:

No one shall publish or reveal the name or address of C, who is the child involved in these proceedings, or any information that would be likely to lead to the identification of them or any member of their family in connection with these proceedings (including the names of the relevant schools).

Any breach of this order is liable to be treated as a contempt of court and may be punishable by imprisonment, fine or other sanctions under section 25 of the Tribunals, Courts and Enforcement Act 2007. The maximum punishment that may be imposed is a sentence of two years’ imprisonment or an unlimited fine.

Between:

AA

Appellant

- v -

LONDON BOROUGH OF HOUNSLOW

Respondent

Before: Upper Tribunal Judge Stout

Mode of hearing: In person

Representation:

Appellant: Sunil Chothi (SEND Advocate)

Respondent: Joseph Thomas (counsel)

On appeal from:

Tribunal: First-tier Tribunal (Special Educational Needs and Disability)

Tribunal Case No: EH313/24/00014

Tribunal Venue: By video

Decision Date: 9 July 2024

SUMMARY OF DECISION

SPECIAL EDUCATIONAL NEEDS (85)

The appellant (C’s parent) expressed a preference for a maintained mainstream school (School O); the local authority named a maintained mainstream school with an autism resource base (School S) in Section I of C’s EHC Plan. The appellant wanted C to have a ‘mainstream experience’ rather than being placed in a base. The Tribunal applied section 39(4) of the Children and Families Act 2014 (CFA 2014) and found School O to be unsuitable, in particular because C would be in an ordinary mainstream class of 30 pupils; the Tribunal named School S. The appellant argued that the Tribunal had erred in law by failing properly to apply the so-called ‘right to mainstream’ in section 33 of the CFA 2014 and/or by failing to consider section 9 of the Education Act 1996 (EA 1996).

The Upper Tribunal gives guidance on the interpretation and application of relevant statutory provisions. The Upper Tribunal holds that the First-tier Tribunal did not err in its application of section 33, which is not a ‘right to a mainstream experience’. Section 33(2) places a duty on the local authority to name a mainstream school when the application of section 39(4) has resulted in parent’s preferred school being rejected, unless naming a mainstream school is incompatible: (a) with the wishes of the parent; or (b) provision of efficient education to others. Naming School S complied with that duty because parental preference was for mainstream (albeit not that particular school) and the local authority was not relying on the exception in section 33(2)(b) for incompatibility with the efficient education of others so the duty in section 33(4) to take reasonable steps to avoid the incompatibility did not apply.

The Tribunal erred in law by failing to consider section 9 of the EA 1996 when deciding which school it was ‘appropriate’ to name under section 39(5). However, the error was not material as it was inconceivable in this particular case that the application of section 9 would have made any difference.

Please note the Summary of Decision is included for the convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.

DECISION