OO & Anor v London Borough of Bexley

Where a parent requests a particular school under Children and Families Act 2014, section 39(4)(b)(i) is satisfied only if the child’s attendance would be incompatible with the provision of efficient education for others. A material adverse effect on existing provision, limited space, or a school being full does not by itself meet that strong statutory test.

The tribunal must make sufficiently precise findings about the affected pupils, the standard of their present education, the effect of admission, and whether reasonable adjustments could avoid education falling below the efficient-education standard. The inquiry must be conducted by reference to the precise special educational provision determined for the child.

The appellants challenged the First-tier Tribunal’s decision on their son Q’s education, health and care plan. The tribunal amended sections B and F of the plan but dismissed their appeal concerning section I, which named Shenstone School rather than their preferred school, Woodside Academy.

It held that placement at Woodside Academy would be incompatible with the provision of efficient education for others under section 39(4)(b)(i) of the Children and Families Act 2014. Permission was granted on whether the tribunal had applied that test correctly and given adequate findings and reasons.

1. Appeal allowed. The First-tier Tribunal made a material error of law in dismissing the appeal concerning the named school. Its decision was set aside and the matter remitted to a fresh First-tier Tribunal panel.

2. Under section 39(3) of the Children and Families Act 2014, the local authority must name the parental choice unless one of the section 39(4) exceptions applies. Under section 39(4)(b)(i), the relevant question is whether attendance would be incompatible with efficient education for others. This is a strong test. Efficient education is neither the highest desirable standard nor a bare minimum.

3. The First-tier Tribunal found that Woodside Academy was full, had little leeway, and that Q’s attendance would materially affect provision for existing pupils. Those findings did not explain why the resulting effect would unavoidably reduce other pupils’ education below the efficient-education standard.

4. The statutory inquiry required careful and precise findings about: which pupils would be affected; whether their education was then efficient; the effect of Q’s attendance on that education; and whether reasonable adjustments could avoid any reduction below the required standard. The tribunal also had to assess the issue by reference to the particular provision specified in Q’s section F, rather than support which a witness considered necessary but which the tribunal had not ordered.

5. The witness evidence could inform the tribunal’s reasoning, but it could not cure the absence of adequate findings and reasons. A fresh fact-finding tribunal should determine the appeal, including sections B, F and I, because the elapsed time might have produced changes relevant to Q’s needs and placement.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal decision of 25 October 2022 (EH303/22/00010) was set aside and remitted to a fresh panel.
• First-tier Tribunal (HESC Chamber): amended sections B and F of Q’s education, health and care plan, but dismissed the appeal against the school named in section I.