MH, R (on the application of) v Special Educational Needs & Disability Tribunal & Anor

The statutory scheme creates two distinct processes. A parent’s qualified right to insist on a particular school under paragraph 3 of Schedule 27 to the Education Act 1996 is considered first. If that preference is lawfully rejected, the mainstream-school duty under sections 316 and 316A applies. That duty does not require the authority to name a particular school, but it permits the authority and the Tribunal to consider particular schools. Having found mainstream education appropriate, they should normally name a mainstream school, having regard to the Secretary of State’s guidance. A preference put forward during the section 316 process is only a nomination for consideration. It is not subject to paragraph 3’s suitability condition, and all nominated schools must be considered on an equal footing.

The appellant’s son had emotional and behavioural difficulties and a statement of special educational needs. His mother preferred a named mainstream school, but the London Borough of Hounslow named a special school. The Special Educational Needs and Disability Tribunal upheld that decision, but conceded before Pitchford J that its reasons were inadequate. The High Court allowed the appeal, remitted the matter to a differently constituted Tribunal, and gave general guidance on sections 316 and 316A of the Education Act 1996.

The mother appealed against that guidance. The Court of Appeal considered the relationship between the parental-preference procedure in paragraph 3 of Schedule 27 and the mainstream-school duty, including whether the latter required a particular school to be named and whether later nominations were subject to paragraph 3’s criteria.

The Court of Appeal, giving the judgment of the court, differed from the High Court’s guidance. The paragraph 3 process and the section 316 process are distinct in nature and purpose.

1. Under paragraph 3 of Schedule 27 to the Education Act 1996, a parent has a qualified right to insist on a preferred school. The authority need not name it if it is unsuitable or if attendance would be incompatible with the efficient education of other children or the efficient use of resources.
2. Section 316A(4) makes the section 316 process operative, in relation to Part 4 of a statement, only after the paragraph 3 process has been lawfully exhausted. The authority must then educate the child in mainstream schooling unless that would be incompatible with the provision of efficient education for other children. Sections 316A(5) and (6) require consideration of whether reasonable steps could prevent the incompatibility.
3. The amendments made by the Special Educational Needs and Disability Act 2001 did not alter Richardson v Solihull MBC & Anor [1998] ELR 319. Section 316 does not impose a duty to name a particular school. It does not, however, prevent the authority or the Tribunal from considering particular schools as candidates for naming in Part 4.
4. The Secretary of State’s guidance cannot alter the statute. Its statement that section 316 requires another mainstream school to be named is legally wrong, but the guidance remains relevant in practice. Once mainstream schooling is found appropriate, the authority and Tribunal should normally exercise the power to name a particular mainstream school, enabling a parental appeal against that placement under section 326.
5. A school nominated during the section 316 process is not treated as a paragraph 3 preference. It is a candidate to be assessed under sections 316 and 316A. Parent- and authority-proposed candidates must be considered on an equal footing. Regulation 34 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 cannot dictate the operation of the primary legislation.

The court declined to give further guidance without specific factual findings. The First Respondent was ordered to pay the appellant’s costs of both appeals, subject to detailed Community Legal Service funding assessment, and there was no further order on the appeal.

• High Court, Administrative Court: Pitchford J, on 20 February 2004, allowed the appeal against the Tribunal’s decision on the reasons challenge, remitted the matter to a differently constituted Tribunal, and gave general guidance on sections 316 and 316A of the Education Act 1996.
• Court of Appeal (Civil Division): reviewed the guidance on a second appeal and differed from the High Court as to the nature and scope of the section 316 process. There was no further order on the appeal.