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• 14 Feb 2022

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  Complex

  No. CFA2014 s33 provides that where (1) the maintained school requested by the parents/young person under CFA2014 s38(2) is not named because of suitability or incompatibility with the efficient education of others, or (2) no school is requested by the parents, then the LA:

  “must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

  (a) the wishes of the child’s parent or the young person, or

  (b) the provision of efficient education for others”.

  In respect of not naming a mainstream placement generally, the LA “may rely on the exception in subsection (2)(b) [the exception for provision of the efficient education of others] in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions in its area taken as a whole only if it shows that there are no reasonable steps that it could take to prevent the incompatibility”: CFA2014 s33(3). 

  When it comes to not naming a particular mainstream placement, the LA “may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility” (CFA2014 s33(4)).

  See overall COP2015 #9.88-9.90.  

  What constitutes a reasonable step will “depend on all the circumstances of the case”, and factors include whether taking the step would be effective in removing incompatibility, whether the step is practical, what steps have already been taken, financial implications, and disruption caused by the step: COP2015 #9.91-9.94.

  The UT has upheld an FTT decision which found the mainstream placement sought by the parents “not suitable” on the basis that “We do not accept it would be reasonable to expect [school A] to create a school within a school to meet the needs of [the girls]. [The cost of doing so] would be of the order of £60,000 pa and we accept that such expenditure would be unreasonable and excessive in the circumstances” (although the UT did not deal specifically with the authorities relating to suitability): AKT v Westminster CC [2018] UKUT 47 (AAC)#23, 32. Note, however, as our comment, that the FTT decision had (apparently) been “short on black letter law”; before the UT the parent acted as a litigant in person; also, the UT’s decision itself makes no mention of any of the authorities relating to “suitability” and section 316/33 nor deal with any of the issues they explain; nor have we been able to source a copy of the “clear written submissions on the law” from the LA on which the FTT had apparently received and applied” (#30).

  

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

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