09.16 Does EA1996 s9 still apply if the parent requests a CFA2014 s38(2) placement under section CFA2014 s39(3)?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

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  • 14 Feb 2022
  • Yes


    Yes. Even where (in the case of a child but not for a young person) the CFA2014 s39(3) duty to name the CFA2014 s38(2) placement) requested by parents has been displaced by (e.g.) “inefficient use of resources”, the EA1996 s9 obligation (which applies only in relation to children, as below) is still in play; i.e. s9 does not only apply where private school is requested: O v Lewisham [2007] EWHC 2130 #16; but note that the decision maker must consider CFA2014 section 39(3) and s9 separately – they do not collapse into a single test: Ealing v SENDIST & K [2008] EWHC 193 (Admin).

    EA1996 s9 applies in the context of EHCPs but only applies to parental requests – i.e. not young people’s - and only to “pupils” (defined in EA1996 s3), namely persons for whom education is being provided at a school, other than—(a) a person who has attained the age of 19 for whom further education is being provided, or (b) a person for whom part-time education suitable to the requirements of persons of any age over compulsory school age is being provided).

    More: Can parents/young person request a particular placement? 

    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister