Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 226 (AAC)

Fecha: 02-Jul-2025

What is a ‘mainstream school’

What is a ‘mainstream school’

31.

Section 33 of the CFA 2014 requires the local authority to name a maintained nursery school, mainstream school or mainstream post-16 institution, subject to the exceptions discussed above. Those terms are defined as follows in section 83(2) of the CFA 2014:

“mainstream post-16 institution” means a post-16 institution that is not a special post-16 institution;
“mainstream school” means—
(a)
a maintained school that is not a special school, or
(b)
an Academy school that is not a special school;
“maintained school” means—
(a)
a community, foundation or voluntary school, or
(b)
a community or foundation special school not established in a hospital;
“post-16 institution” means an institution which—
(a)
provides education or training for those over compulsory school age, but
(b)
is not a school or other institution which is within the higher education sector and which is solely or principally concerned with the provision of higher education;
“special post-16 institution” means a post-16 institution that is specially organised to make special educational provision for students with special educational needs;

32.

By section 83(7), Part 3 of the CFA 2014 is to be read as if it was part of the EA 1996, so that the definitions in the EA 1996 apply. The EA 1996 defines “school” and “special school” as follows (these need to be read together with the definitions of “primary” and “secondary education” in section 2, which I also set out):-

4 Schools: general.

(1)

In this Act (subject to subsections (1A) to (1C)) “school” means an

educational institution which is outside the further education sector and

the wider higher education sector and is an institution for providing—

(a)

primary education,

(b)

secondary education, or

(c)

both primary and secondary education,

whether or not the institution also provides part-time education suitable to the requirements of junior pupils or further education.

337 Special schools

(1)

A school in England is a special school if it is specially organised to

make special educational provision for pupils with special educational

needs, and it is—

(a)

maintained by a local authority,

(b)

an Academy school, or

(c)

a non-maintained special school.

2 Definition of primary, secondary and further education.

(1)

In this Act “primary education” means—

(a)

full-time or part-time education suitable to the requirements of children who have attained the age of two but are under compulsory school age;

(b)

full-time education suitable to the requirements of junior pupils of compulsory school age who have not attained the age of 10 years and six months; and

(c)

full-time education suitable to the requirements of junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with junior pupils within paragraph (b).

(2)

In this Act “secondary education” means—

(a)

full-time education suitable to the requirements of pupils of compulsory school age who are either—

(i)

senior pupils, or

(ii)

junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with senior pupils of compulsory school age; and

(b)

(subject to subsection (5)) full-time education suitable to the requirements of pupils who are over compulsory school age but under the age of 19 which is provided at a school at which education within paragraph (a) is also provided.

(2A) Education is also secondary education for the purposes of this Act (subject to subsection (5)) if it is provided by an institution which—

(a)

is maintained by a local authority or is an Academy, and

(b)

is principally concerned with the provision of full-time education suitable to the requirements of pupils who are over compulsory school age but under the age of 19.

(2B) Where—

(a)

a person is in full-time education,

(b)

he receives his education partly at a school and, by virtue of arrangements made by the school, partly at another institution or any other establishment, and

(c)

the education which he receives at the school would be secondary education if it was full-time education at the school,

the person’s education, both at the school and at the other institution or establishment, is secondary education for the purposes of this Act (subject to subsection (5)).

(3)

Subject to subsection (5), in this Act “further education” means—

(a)

full-time and part-time education suitable to the requirements of persons who are over compulsory school age (including vocational, social, physical and recreational training), and

(b)

organised leisure-time occupation provided in connection with the provision of such education,

except that it does not include secondary education or (in accordance with subsection (7)) higher education.

(4)

Accordingly, unless it is education within subsection (2)(b) or (2A), full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19 is further education for the purposes of this Act and not secondary education.

(5)

For the purposes of this Act education provided for persons who have attained the age of 19 is further education not secondary education; but where a person—

(a)

has begun a particular course of secondary education before attaining the age of 18, and

(b)

continues to attend that course,

the education does not cease to be secondary education by reason of his having attained the age of 19.

(6)

In subsection (3)(b) “organised leisure-time occupation” means leisure-time occupation, in such organised cultural training and recreative activities as are suited to their requirements, for any persons over compulsory school age who are able and willing to profit by facilities provided for that purpose.

(6A) In the context of the definitions of secondary education and further education, references in this section to education include vocational, social, physical and recreational training.

(7)

References in this section to education do not include references to higher education.

33.

In MA v LB Kensington & Chelsea [2015] UKUT 186 (AAC) the Upper Tribunal (Judge Levenson) upheld the decision of the First-tier Tribunal that an autism resource base attached to a maintained mainstream primary school was not a separate special school, but part of the mainstream school so that the local authority had complied with the requirements of what is now section 33 by naming that school in Section I of the EHC Plan.

34.

In view of the issue that arises on this appeal, I observe that, as is apparent from those statutory provisions, the duty in section 33 relates to the naming of a particular type of institution, not to the provision of a particular type of education. A school that is as a whole not ‘specially organised to make special educational provision for pupils with special educational needs’ is in principle a mainstream school, even if it chooses to ‘specially organise’ itself to make special educational provision for some of its pupils with special educational needs in separate classes to its other pupils. I note, however, that, if the distinction between mainstream and special schools (and the section 33 duty) is not to be rendered nugatory, care needs to be taken to ensure that an institution in reality operates as a separate special school (even if co-located/co-managed with a mainstream school), is not classified as a ‘mainstream school’.