[2025] UKUT 226 (AAC)

33 Children and young people with EHC plans

This section applies where a local authority is securing the preparation of an EHC plan for a child or young person who is to be educated in a school or post-16 institution.

In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

the wishes of the child's parent or the young person, or

the provision of efficient education for others.

A local authority may rely on the exception in subsection (2)(b) in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions in its area taken as a whole only if it shows that there are no reasonable steps that it could take to prevent the incompatibility.

A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

The governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

Subsection (2) does not prevent the child or young person from being educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State.

This section does not affect the operation of section 63 (fees payable by local authority for special educational provision at non-maintained schools and post-16 institutions).

First I should set out the legal route through what can at first glance seem to be the minefield of sections 33 and 39 of the 2014 Act.

The only route to section 33 is via section 39(5) or section 40(2). Section 40(2) deals with the case when there has been no request for a specific school, so does not apply here.

Section 39(5) is not engaged unless subsection (4) applies. Subsection (4) only applies where one of two conditions is satisfied:

The school requested is unsuitable for the age, ability, aptitude or special educational needs of the child; or

The attendance of the child at the requested school would be incompatible with the provision of efficient education for others [meaning other children at that school], or the efficient use of resources.

In all other cases, where subsection (4) does not apply, section 39(3) imposes an absolute duty on the local authority to name the requested school.

Section 39(5) requires a local authority to name a school (if it names one, rather than merely specifying a type of school) which is “appropriate” for the child. That obligation must be looked at, not in the context of the section 39(4) exceptions relating to the school, but in the context of the section 33(2) duty on the local authority. That is a duty to provide for mainstream schooling unless that is incompatible with the wishes of the

parents (which will not arise in a section 39(5) case as that section deals with cases where the parents have requested a particular school), or is incompatible with the provision of efficient education for others (again, meaning other children at the same school).

There is no “suitability” exception in section 33(2). Nor is there an “efficient use of resources” provision as a free-standing exception. Indeed, if education of the child in a mainstream school is currently incompatible with the efficient education of other children there, the local authority will be under a duty to spend money to overcome that incompatibility up to a reasonable level. This is, in short, the effect of the “reasonable steps” requirement in subsections (3), (4) and (5) of section 33, together with section 42.

In support of this interpretation I was referred to two Upper Tribunal decisions, Bury Metropolitan Borough Council v SU [2011] ELR 14 and Harrow Council v AM [2013] UKUT 0157 (AAC). I have also considered the Court of Appeal decision in R (MH) v The Special Educational Needs and Disability Tribunal and London Borough of Hounslow [2004] EWCA Civ 770, cited in both Upper Tribunal decisions. In view of the agreement

among counsel in this case, I need not set out those decisions extensively. However, they appear to me amply to support the conclusions urged upon me by Mr Cross.

The result of this is that “appropriate” in section 39(5) is not a shorthand for “not excused by section 39(4)”. In other words, it does not import a present suitability provision by implication. An “appropriate” school instead refers to one which allows the local authority to comply with its very strict, though not absolute, obligation under section 33(2).

That conclusion is inconsistent with the provisional view of Upper Tribunal Judge Jacobs in ME v London Borough of Southwark [2017] UKUT 0073 (AAC), at paragraphs [13] and [14]. But that view was expressed without argument, and in my judgment does not stand up to the argument presented to me by Mr Cross, which I hope I have shortly

but accurately encapsulated above.

It follows that, as a matter of legal theory, a requested school which escapes being named under section 39(3), as a result of being unsuitable in the terms of section 39(4)(a), could still be named as an appropriate school under section 39(5) which is subject to the constraints imposed by section 33.

My initial instinct was to the contrary, and accorded with the provisional view of Judge Jacobs. How could a school which was “unsuitable” for the special educational needs of the child in question be “appropriate” for that same child? To be appropriate, a school must be able to match what the child needs (see per Thorpe LJ in C v Buckinghamshire CC & Special Educational Needs Tribunal [1999] ELR 179). The answer is that the right to mainstream schooling is a stronger right than the right to request a particular school. The right to request a school can be displaced where that school is unsuitable. The duty to provide mainstream schooling somewhere cannot be displaced by the unsuitability of a particular school, or even of all schools in the area. The local authority has to make a school appropriate, if necessary by spending money to do so. So a school which is currently “unsuitable” may nevertheless become “appropriate” once upgraded.

No doubt in many cases, where the particular local authority has within its area another school which is already suitable, the requested school is likely to escape being named, because the cost of making it “appropriate” (which to that extent imports a suitability criterion at the end of the upgrading process) would be unnecessary. But there may well be circumstances where the requested but unsuitable school would nevertheless be named in the final EHC plan. Two examples may suffice, though they are by no means exhaustive.

First, as the Court of Appeal noted in MH, when section 316 of the EA 1996 was originally enacted, the duty to educate in mainstream applied only if that was compatible with the child “receiving the special educational provision which his learning difficulty calls for”: see [20] of MH. It is only since the amendment of the EA 1996 by the Special Educational Needs and Disability Act 2001 (SENDA 2001) that the statutory provisions have had essentially the form that they now have in section 33 of the CFA 2014. In MH at [79] the Court of Appeal cautioned against interpreting section 33 in a way that might reintroduce ‘suitability’ requirement that Parliament had removed in 2001. Judge Ward in Bury Metropolitan Bury Council v SU at [22]-[29] affirmed that approach (rejecting my argument as counsel in that case that the duty on a parent under section 7 of the EA 1996 to cause their child to receive suitable education made any difference to the way that section 33 should be interpreted and applied);

Secondly, Philip Mott QC did not identify which specific statutory provisions he had in mind as the source of the proposition that the local authority comes under a duty to make a specific mainstream school suitable for a child. The duty is not to be found in sections 33(3)/(4) since the ‘reasonable steps’ those subsections require to be taken are steps to prevent incompatibility with the efficient education of others, not steps to prevent incompatibility with the efficient education of the child in question.