09.32 Is there a particular order to consider a parental/young person request for a particular mainstream maintained/section 38(2) school?

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. Decision steps:

    1. If parents have expressed a preference under CFA2014 s39 (i.e. for a maintained/section 38 mainstream school), consider it by reference to that paragraph first.
    2. Unless one of the disqualifiers in section CFA2014 s39(4), applies, they have a right to that placement. More: Can parents/young person request a particular placement?
    3. If one of the disqualifiers bites (see above on inefficient use of resources), then consider the type of placement under CFA2014 s33.
    4. Unless incompatible with the education of others and the steps to remove the incompatibility are unreasonable, then the FTT must specify mainstream as a type in section I.
    5. Deciding whether the steps to remove incompatibility with the efficient education of other children are unreasonable can also involve considering their impact on the child in question (but that is not introducing a ‘suitability’ test by the back door).
    6. If there is no incompatibility the FTT should try and identify a particular placement.
    7. In doing so, all mainstream schools put forward by either parent or LA are candidates including the school put forward by the parent under section 39(2)).
    8. But the parent does not have a right to have any particular school named at this stage, only a right to have it considered as a candidate, albeit helped (but only in relation to a child, and not a young person, More: Does EA1996 section 9 still apply if the parent requests a CFA2014 section 38(2) placement under section CFA2014 section 39(3)?) by EA1996 section 9 (the general duty to educate in accordance with parental preference subject to unreasonable expenditure). Example: the child requires classes fitted with hearing aid loops; the parents want mainstream; CFA2014 s33 can secure them mainstream, but not a particular mainstream, such that the FTT could order placement at a mainstream school which has been equipped by the LA with loops.
    9. But it may nonetheless be necessary (to comply with CFA2014 s33) to prescribe additional provision to make “suitable” that which was considered “unsuitable”.

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    Noddy 'no-nonsense' Guide

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