Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 226 (AAC)

Fecha: 02-Jul-2025

Section 39 CFA 2014

Section 39 CFA 2014

Section 39 of the CFA 2014 makes provision for dealing with parental requests to a local authority that a particular school or other institution falling within section 38(3) be named in Section I of child or young person’s EHC Plan: see LB Hillingdon v SS and ors [2017] UKUT 0250 (AAC), [2019] AACR 9. Section 38(3) includes all maintained schools and nursery schools, academies, further education institutions, non-maintained special schools and other institutions approved by the Secretary of State under section 41 of the Act. Section 39 provides:

39 Finalising EHC plans: request for particular school or other institution

(1)

This section applies where, before the end of the period specified in a notice under section 38(2)(b), a request is made to a local authority to secure that a particular school or other institution is named in an EHC plan.

(2)

The local authority must consult—

(a)

the governing body, proprietor or principal of the school or other institution,

(b)

the governing body, proprietor or principal of any other school or other institution the authority is considering having named in the plan, and

(c)

if a school or other institution is within paragraph (a) or (b) and is maintained by another local authority, that authority.

(3)

The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

(4)

This subsection applies where—

(a)

the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b)

the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i)

the provision of efficient education for others, or

(ii)

the efficient use of resources.

(5)

Where subsection (4) applies, the local authority must secure that the plan—

(a)

names a school or other institution which the local authority thinks would be appropriate for the child or young person, or

(b)

specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.

(6)

Before securing that the plan names a school or other institution under subsection (5)(a), the local authority must (if it has not already done so) consult—

(a)

the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b)

if that school or other institution is maintained by another local authority, that authority.

(7)

The local authority must, at the end of the period specified in the notice under section 38(2)(b), secure that any changes it thinks necessary are made to the draft EHC plan.

(8)

The local authority must send a copy of the finalised EHC plan to—

(a)

the child's parent or the young person, and

(b)

the governing body, proprietor or principal of any school or other institution named in the plan.

There are thus three bases on which a parental request for a particular school or other institution falling within section 38(3) may be refused by a local authority under section 39(4):

Suitability for the child - it is not suitable for the age, ability, aptitude or special educational needs of the child or young person concerned;

Efficient education of others - the attendance of the child or young person would be incompatible with the provision of efficient education for others; or

Cost - the attendance of the child or young person would be incompatible with the efficient use of resources.

10.

Unless one of those bases applies, the local authority must name the school of parental preference: section 39(3).

11.

If one of those bases applies, then section 39(5) requires the local authority to name a school or type of school that it considers to be ‘appropriate’ for the child or young person. What is ‘suitable’ and what is ‘appropriate’ will often be one and the same. In C v Buckinghamshire County Council & The Special Educational Needs Tribunal [1999] ELR 179 Thorpe LJ at 189 observed as follows:

… it is clear from s 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is ‘appropriate’. It is not enough for the school to be merely adequate. To determine if the school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the

school offers matches what the child needs, it is unlikely to be appropriate. The assessment of the child’s needs necessarily imports elements of a welfare judgment. If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would be judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor. But it would be wrong to elevate parental preference to the height that Mr Bowen appeared to contend for in his submissions. A bare preference might be ill-informed or capricious. In practice, parental preference may mean a fair opportunity to the parents to contend by evidence and argument for one school in preference to another. Therefore, preferences must be reasoned to enable the parent to demonstrate that they rest on a sound

foundation of accurate information and wise judgment.

12.

However, in R (an Academy Trust) v Medway Council [2019] EWHC 156 (Admin) Philip Mott QC (sitting as a Deputy High Court Judge) held at [94(ix)] that in principle a school could be ‘appropriate’ for the purposes of section 39(5) even though it was not ‘suitable’ for the purposes of section 93(3). One such situation, he observed in that case, is where the so-called ‘right to mainstream’ in section 33 of the CFA 2014 is engaged. The full passage from his judgment in that case is set out in the next section of this decision.