The right to mainstream

The fundamental principle underpinning the Law is that where a parent of a child or young person with SEND, wants a place in a mainstream setting it must never be denied on the basis that mainstream is unsuitable or that their needs or disabilities are too great or complex. Inclusive education is one of the principles stated to underpin the SEND Code of Practice.

Whatever the Law states, some parents meet mainstream schools that are unwelcoming and attempt to dissuade them from applying for admission. The Code states (paragraph 1.27):

"The School Admissions Code of Practice requires children and young people with SEN to be treated fairly. Admissions authorities:

• must consider applications from parents of children who have SEN but do not have an Education, Health and Care Plan (EHCP) on the basis of the school's published admissions criteria as part of normal admissions procedures
• must not refuse to admit a child who has SEN but does not have an EHCP because they do not feel able to cater for those needs
• must not refuse to admit a child on the grounds that they do not have an EHCP."

Children and young people without a EHCP

Children and young people without EHC plans must be educated in a mainstream school (see the section on different types of schools for definitions of these terms) (section 34(2) of the Children and Families Act 2014).

There are only a few exceptions to this. Their parents or carers could choose to pay for them to attend an independent school, or to home school them. An LA must not place a child or young person without an EHC plan in a special school or institution except in very limited circumstances. Those exceptions nearly all require (among other things) the prior consent of children's parents or of young people themselves when over the age of 16.

Children and young people with a EHCP

If a parent of a child, or young person, wants them to attend a mainstream setting, the LA can only refuse if a mainstream placement would be incompatible with the efficient education of others and there are no reasonable steps the LA could take to avoid this (section 33 CAFA 2014). The degree or complexity of their needs or disabilities and the suitability of mainstream, is not a reason in Law for refusal of mainstream. This applies not just to attending a mainstream school or college but also to taking mainstream courses.

This is an important right. The LA cannot send a child or young person to a special school when it is not what parents or the young person wants. This is true even if the LA view is supported by professionals.

It is important to note, however, that this is a right to mainstream education but not necessarily a right to a particular mainstream school.

Reasonable steps

If the LA can show that a child or young person's presence would be incompatible with the efficient education of others (case law requires compelling evidence to back any such claim), then it must also be able to show that there are no 'reasonable steps' it can take to remove the incompatibility.

The Code says that:

"the term 'others' means the children or young people with whom the child or young person with an EHC plan would be likely to come into contact on a regular day-to-day basis".

The Code lists examples of reasonable steps at paragraphs 9.91 to 9.94. The Code concludes this section by advising:

"A decision not to educate a child or young person in a mainstream setting against the wishes of the child's parent or the young person should not be taken lightly".

If parents or young people are faced with such a decision, they need to make sure that the LA has:

identified, with concrete facts, what it is about the child/young person's presence that would prevent the efficient education of others and identified the 'others' whose education would be rendered inefficient and considered all possible reasonable steps which might remove the problem.

Any argument like 'the child's difficulties are too extreme for a mainstream school' will not succeed if the parents were to challenge the decision in the First-tier Tribunal (Special Educational Needs and Disability). The Code suggests that only extreme and/or persistent behavioural difficulties may produce an incompatibility that is not curable by reasonable steps:

"Where the child or young person's behaviour systematically, persistently or significantly threatens the safety and/or impedes the learning of others" (paragraph 9.93).

Once a school or college is named on an EHC plan, it must admit that child or young person (section 43 CAFA 2014).

The Courts have considered the right to a mainstream education and have concluded that it is very difficult for an LA to deny a child or young person a mainstream place when that is what they or their parents want.

Case Law

Bury Metropolitan Borough Council v SU (IPSEA.ORG.UK) [2010] UKUT 406 (AAC): when considering the right of a child with a Statement (now an EHC plan) to a placement in a mainstream school, whether or not the school is suitable is not a relevant consideration. The only issue to consider is whether attendance at the mainstream school would be incompatible with the education of other children and if so, that incompatibility cannot be removed by the taking of "reasonable steps".

ME v London Borough of Southwark (IPSEA.ORG.UK) [2017] UKUT 73 (AAC): when a parent or young person has asked for a mainstream setting, even if the placement is rejected under s. 39 Children and Families Act 2014 (on the grounds that it is unsuitable, or incompatible with the efficient education of others or the efficient use of resources), it may still be named under s. 33 Children and Families Act 2014 (the right to mainstream) unless the child or young person's attendance would be incompatible with the efficient education of others and there are no reasonable steps that could be taken to avoid this.

Harrow Council v AM (IPSEA.ORG.UK) [2013] UKUT 0157 (AAC): Where a parent requests a mainstream school and there is no suitable school available (whether inside or outside its area), the LA is under an absolute obligation to make a mainstream school suitable to meet the child's needs, subject only to the qualification that it must be compatible with the efficient education of other children.

Law

Section 9 Education Act 1996

9 Pupils to be educated in accordance with parents' wishes.

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights – Right to education

Article 2 of Protocol No. 1 – Right to education

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

Children and Families Act – 33 Children and young people with EHC plans

(1) This section applies where a local authority is securing the preparation of an EHC plan for a child or young person who is to be educated in a school or post-16 institution.

(2) In a case within section 39(5) or 40(2), the local authority must secure that the plan provides for the child or young person to be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless that is incompatible with—

(a) the wishes of the child's parent or the young person, or

(b)the provision of efficient education for others.

(3) A local authority may rely on the exception in subsection (2)(b) in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions in its area taken as a whole only if it shows that there are no reasonable steps that it could take to prevent the incompatibility.

(4) A local authority may rely on the exception in subsection (2)(b) in relation to a particular maintained nursery school, mainstream school or mainstream post-16 institution only if it shows that there are no reasonable steps that it or the governing body, proprietor or principal could take to prevent the incompatibility.

(5) The governing body, proprietor or principal of a maintained nursery school, mainstream school or mainstream post-16 institution may rely on the exception in subsection (2)(b) only if they show that there are no reasonable steps that they or the local authority could take to prevent the incompatibility.

(6) Subsection (2) does not prevent the child or young person from being educated in an independent school, a non-maintained special school or a special post-16 institution, if the cost is not to be met by a local authority or the Secretary of State.

(7) This section does not affect the operation of section 63 (fees payable by local authority for special educational provision at non-maintained schools and post-16 institutions).

43 Schools and other institutions named in EHC plan: duty to admit:

(1) Subsection (2) applies if one of the following is named in an EHC plan:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41.