[2025] UKUT 226 (AAC)

As indicated above, the parties in this case were largely agreed on the relevant statutory framework and applicable legal principles in this case. They did, however, differ as to how the legal framework should have been applied by the First-tier Tribunal in this case.

Mr Chothi for the appellant argues that the First-tier Tribunal failed to consider section 9 of the EA 1996. He submits that, where a parent seeks placement at a particular mainstream school, section 9 mandates that ‘real weight’ should be given to that preference. He submits that the First-tier Tribunal should have found the appellant’s preferred school to be appropriate and considered whether the additional cost of the preferred school was ‘unreasonable’ in the section 9 sense. He submits that the Tribunal should have applied section 33(4) CFA 2014 and should have considered what reasonable adjustments would have supported C’s attendance at School O, and that the Tribunal made insufficient effort in that respect, wrongly assuming that C could not cope with a class of 30 although she had attended a mainstream nursery. He submits that the First-tier Tribunal should have taken account of the parents’ preference for a ‘mainstream experience’. Alternatively, he submits that if the Tribunal considered it did not have enough evidence about School O, it should have adjourned to enable that evidence to be obtained.

Mr Thomas for the local authority accepts that the First-tier Tribunal failed to refer to section 9 of the EA 1996. However, he submits that (as the Court of Appeal accepted in the case of C v Buckinghamshire [1999] ELR 179), it would have made no difference to the outcome because consideration of section 9 of the EA 1996 encompasses consideration of whether the parents’ requested school is incompatible with the efficient education of the child so that a school that was ‘unsuitable’ when the section 39(4) test was applied would inevitably also be ‘not appropriate’ for naming under section 39(5), even if regard was had to the wishes of the parent as required by section 9. Alternatively, he submits that as section 9 is only a weak ‘have regard’ duty, the Tribunal had in substance complied with it by considering the section 39(4) test and the unsuitability of School O would inevitably have meant that the Tribunal would have decided to name School S in any event. He further submits that there was no error in relation to failure to apply section 33(4) because it did not apply in this case. The local authority was not relying on the exception in section 33(2)(b), it had complied with the duty under section 33(2) by naming School S as a mainstream school. He further submits that this was an experienced Tribunal panel who can reasonably be assumed to have had in mind when considering the appeal the obligation on all mainstream schools under section 66(2) CFA 2014 to use reasonable endeavours to secure special educational provision to meet a pupil’s special educational needs, and the obligations under the Equality Act 2010 to make reasonable adjustments for, and not discriminate in relation to, disabled pupils.