09.30 But surely the LA/FTT can ask whether the requested mainstream placement is suitable/appropriate?

Noddy 'no-nonsense' Guide

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

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  • 14 Feb 2022
  • No


    No. “Suitability” is no longer an issue when considering whether to specify mainstream as a “type” in Section I if the parents wants it. In effect, the statute deems that, for all children, mainstream is suitable or can (and thus must) be made suitable, unless that results in incompatibility with the education of others. 

    CFA2014 CFA2014 s33 and CFA2014 s39 provide a two stage process whereby the LA is under a duty to accede to the parental preference for a particular maintained school/academy/etc (section 39(3)) unless it is unsuitable or is incompatible with the efficient use of resources or education of others (CFA2014 s39(4)); but even though a particular mainstream school fails at that stage, the same school remains a candidate in naming an “appropriate” school or type of school (CFA2014 s39(5)) because of the LA’s duty to secure mainstream (CFA2014 s33) where the parent wants it unless that involves incompatibility with the efficient education of others which cannot be removed by the taking of reasonable steps. 

    A school which is “unsuitable” (CFA2014 s39(4)) may nevertheless become “appropriate” within the context of the sequential decision making process (CFA2014 s39(5)) once reasonable steps have been identified to be taken which would upgrade it.

    See ME v LB Southwark [2017] UKUT 73 (AAC) #7-22 for an extensive outline of the law on this point. Note also R (An Academy Trust) v Medway Council [2019] EWHC 156 (Admin) in which the UT explained that that a school which found currently “unsuitable” (to resist a parental preference under CFA2014 s39 may nevertheless become “appropriate” with additional SEP input. The court accepted a submission from the Secretary of State: “There is no "suitability" exception in section 33(2). Nor is there an "efficient use of resources" provision as a free-standing exception. Indeed, if education of the child in a mainstream school is currently incompatible with the efficient education of other children there, the local authority will be under a duty to spend money to overcome that incompatibility up to a reasonable level. This is, in short, the effect of the "reasonable steps" requirement in subsections (3), (4) and (5) of section 33, together with section 42.” The Noddy Guide would point out that the italic words need to be treated carefully and not be read in a way which collapses the obligation to take “reasonable steps” to remove incompatibility with the efficient education of other children with the obligation secure a mainstream placement by making it suitable for the child or young person concerned without regard to the cost of doing so: they are not the same. The Court did not refer the case law which makes clear that cost is not a reason to refuse a mainstream placement on suitability grounds.

    For case law under the EA1996 see MH v Hounslow [2004] EWCA 770; Bury MBC v SU [2010] UKUT 406 (AAC); CCC v London Borough of Tower Hamlets [2011] UKUT 393 (AAC). See Harrow Council v AM [2013] UKUT 157 (AAC)#27: “In my judgment, the apparent incompatibility between the provision of suitable education and the requirement to name a mainstream school without express regard to the suitability of the school for the child can only be reconciled on the basis that the local education authority is under an absolute obligation to make a school suitable, if there is no suitable school already, whether inside or outside its area, where the child can be found a place, subject only to the qualification in section 316(3)(b). It has to provide for the identified needs. It cannot say that it will educate the child in a mainstream school without providing for them. Nor can it rely on any independent resources issue in this respect. This combines the need to protect the interests of the child with Parliament’s intention, in amending 1996 Act in 2001, to promote inclusion”. 

    In summary:

    • The obligation on the LA becomes one of taking whatever steps are necessary (without regard to cost or other resources) to make that placement suitable, and the obligation to place the CYP there remaining unless doing so would involve incompatibility with the efficient education of others which cannot be removed by the taking of reasonable steps. 
    • Resources may be relevant in deciding on the reasonableness of those additional steps (i.e. those which are only to remove incompatibility with the efficient education of others) but they are not relevant in relation to deciding what was necessary to make the placement suitable for the particular child in the first place.

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    Noddy 'no-nonsense' Guide

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