09.18 Does the fact that the placement requested by parents people costs more automatically disqualify it?

Noddy 'no-nonsense' Guide

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

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A: SenseCheck

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  • 14 Feb 2022
  • No


    No. Even if the FTT finds incompatibility under EA1996 s9 (in the case of a request by a parent in respect of their child) that is not the end of the process. It does not mean that the FTT is entitled to ignore the reasons lying behind the parent’s choice of school. 

    Those are matters still to be taken into account by the FTT in the exercise of its discretion under CFA2014 s40(2)(a) and weighed in the balance among the other factors which the FTT considers to be relevant: Hampshire v R & SENDIST [2009] EWHC 626 #65. 

    EA1996 s9 should be approached in three stages: IM v LB Croydon [2010] UKUT 205 (AAC)#9: (1) Are both schools appropriate, (2) If they are, which is parent’s preferred school? (3) Would naming the parent’s preferred school be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure. If so, the school suggested by the LA must be named. (Note, however, the more nuanced explanation and analysis in Hampshire v R & SENDIST [2009] EWHC 626)

    An FTT cannot dodge these questions and must answer them. For example, a failure to decide whether the parent’s preferred school is suitable constitutes an error of law: EC v North East Lincolnshire [2015] UKUT 0648 (AAC) #21.

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