AA v London Borough of Hounslow

Section 33 of the Children and Families Act 2014 requires a local authority, after parental preference for a particular school has been rejected under section 39(4), to name a mainstream school unless mainstream education is incompatible with the parent’s wishes or the efficient education of others. It does not confer a right to a particular mainstream school or to a particular mainstream classroom experience.

The reasonable-steps duty in section 33(4) applies only where the authority relies on incompatibility with the efficient education of others. Section 9 of the Education Act 1996 must nevertheless be considered when selecting an appropriate school under section 39(5). Failure to do so may be immaterial where the existing reasoning makes the outcome inevitable.

The appellant, C’s parent, preferred School O, an ordinary maintained mainstream primary school. The local authority named School S, a maintained mainstream school containing an autism resource base, in C’s EHC Plan.

The First-tier Tribunal found School O unsuitable under section 39(4) of the Children and Families Act 2014 because of its class size, lack of specialist provision and other features. It named School S. The appellant appealed, alleging insufficient regard to the statutory mainstream duty, parental preference and section 9 of the Education Act 1996.

The central issues were whether section 33(4) applied and whether failure to consider section 9 constituted a material error of law.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve a material error of law, although it had erred by failing expressly to consider section 9 of the Education Act 1996.
2. Section 33 applies where section 39(5) is engaged. Its duty is to secure that the EHC Plan provides for education in a maintained nursery school, mainstream school or mainstream post-16 institution, subject to the statutory exceptions. It is concerned with the type of institution, not with guaranteeing a particular form of education or a particular mainstream experience.
3. Section 33(4) applies only where the local authority relies on section 33(2)(b) to resist mainstream provision at a particular school. The authority complied with section 33(2) by naming School S, which was a mainstream school. It was not relying on incompatibility with the efficient education of others, so no section 33(4) reasonable-steps analysis was required.
4. Section 9 had to be considered when deciding which school was appropriate under section 39(5). It imposes a duty to have regard to parental wishes, subject to compatibility with efficient instruction and training and avoidance of unreasonable public expenditure. It does not create a right to a particular school or require the authority to follow parental wishes.
5. The section 9 error was immaterial. The First-tier Tribunal had found School O unsuitable, considered the reasons for parental preference, and identified significant educational advantages offered by School S, including smaller classes and on-site therapies. It was inconceivable that express consideration of section 9 would have changed the result.
6. The Tribunal was entitled to decide the appeal on the evidence available. The absence of a witness from School O did not require an adjournment, since the appellant had a reasonable opportunity to present her case and the evidence was sufficient to determine suitability.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal’s decision was upheld as free from material error of law, despite an immaterial failure to address section 9 of the Education Act 1996.
• First-tier Tribunal (Special Educational Needs and Disability): by decision dated 9 July 2024, found School O unsuitable and named School S in Section I of C’s EHC Plan.