Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 226 (AAC)

Fecha: 02-Jul-2025

The grant of permission to appeal in this case

The grant of permission to appeal in this case

35.

Permission to appeal was granted on a limited basis by Judge Davies following an oral hearing. The grounds of appeal as drafted in the notice of appeal were not specifically numbered. Judge Davies summarised the appellant’s position at the permission hearing as being that there were two grounds of appeal as follows:-

Although School S is a mainstream school it would not offer a ‘mainstream experience’ to C as she would be taught in a specialist autism unit within the school;

The Tribunal did not pay sufficient regard to parental preference for School O. School O was not subject to sufficient challenge to its ability to take reasonable steps to facilitate C’s attendance / avoid incompatibility.

36.

Mr Chothi’s arguments as regards those two grounds of appeal were summarised by Judge Davies in her decision at [11]-[14].

37.

Judge Davies refused permission to appeal on the first ground on the basis that Mr Chothi accepted the ASD resource base at School S was part of the same institution as the mainstream school and that therefore placement in the ASD base counted as mainstream for the purposes of section 33 CFA 2014, following the approach in MA v London Borough of Kensington and Chelsea. Judge Davies adopted the reasoning of Judge McCarthy (who refused permission to appeal in this case at First-tier level) that “the right to a mainstream education is different from a right to be educated in a typical mainstream classroom in England”. I add (in the light of the observation I have made above about the care that needs to be taken in deciding whether an institution counts as a mainstream or a special school for the purposes of the legislation) that in this case, it is clear that the ASD resource base operates as part of the mainstream school, with the children from the base joining with the children from the mainstream classes for certain activities, and the plan in C’s case being to work towards further elements of integration with the mainstream classes.

38.

Judge Davies granted permission on the second ground, observing as follows:

38.The Tribunal found [School O] to be unsuitable for C [30] noting its large class size, lack of space, lack of onsite SLT and OT therapy. This finding was based on [the Headteacher’s] letter (page 239 FTT bundle) and the information before it about C’s ability, aptitude and needs. The Tribunal found ‘she displays sensory sensitivities and sensory avoidant behaviours and struggles with certain sounds and noises. A class size of 30 is bound to cause her sensory difficulties’.

39.Having found [School O] to be unsuitable for [C] under section 39(4)(a), the Respondent was not required to name [School O] in Section

I (section 39(3)) and section 39(5) imposed a duty on the Respondent to name an appropriate school or type of school. It did so by naming mainstream provision at [School S].

40.In consequence of not naming the school of parental preference, section 33(2) imposed a qualified duty on the Respondent to name a mainstream school, which it did. However, I consider it arguable that in the face of parental preference for a named school, the Tribunal did not go on to determine the issue of incompatibility with reference to [School O] in particular.

41.The Respondent’s position statement (p 201-202 FTT bundle asserted that [C’s] attendance at [School O] would be incompatible with the provision of efficient education for others and the efficient use of resources. I consider it is arguable that the Tribunal failed to deal with the issue of incompatibility under section 33(4) and what ‘reasonable steps’ could be taken by [School O] to address incompatibility.

42.In reaching my decision to grant permission on this ground, I have taken into account that a school considered ‘unsuitable’ under section 39 may still be named under section 33 by the taking of reasonable steps to avoid incompatibility (ME v LB Southwark).

43.Further, I consider it arguable that the Tribunal omitted to consider the separate test to apply in the face of parental preference under section 9 EA explained in IM v London Borough of Croydon.

44.For these reasons I grant permission to appeal on ground 2.