MS v LB Brent [2011] UKUT 50 (AAC)

March 1st, 2011

In this case the parents wanted their autistic child (“M”) to attend a mainstream maintained primary school for c30% of the school week and to receive Applied Behavioural Analysis (“ABA”) at home for the remainder of the week. The local authority’s proposal was that M should attend a maintained special school. The First-Tier Tribunal (“FTT”), however, rejected both parties’ cases, holding that M should attend the mainstream primary school full-time, with only a short transitional period. They ordered Part 4 of M’s Statement of SEN to be amended on that basis.

The legal issue in the case concerned the inter-relationship between ss 319 and 316 of the Education Act 1996 (“EA 1996”). Section 319 governs the circumstances in which provision for a child’s SEN may be made otherwise than in a school. Such arrangements are permitted only where it would be inappropriate for the provision (or any part of the provision) to be made in a school. Section 316 governs cases where a parent expresses a preference for mainstream education. In summary, it mandates that provision for a child with SEN be made in mainstream (if that is what the parent wishes) unless that would be incompatible with the efficient education of other children. (See the recent UT decision in Bury Council v SU [2010] UKUT 406 (AAC) in which Tom Cross and I represented, respectively, the parent and the authority for a detailed consideration of the operation of s 316.)

In this case, the UT held that where ss 316 and 319 are in play, what the Tribunal needs to do is:

(1) Consider s 319: is it inappropriate for the provision or any part of it to be made in a school?

(2) If it is appropriate for the provision (or a part of it) to be made in a school, consider s 316.

(3) If parental preference and the absence of any incompatibility with the efficient education of other children mean that, applying s 316, a mainstream school must be named, but

(4) At that point s 319 comes into play again: the Tribunal must ask itself whether it would be inappropriate for any part of the provision to be made in the mainstream school and, if so, order that Part 4 of the Statement describe both the mainstream school and the part of the provision to be made otherwise than at school.

In the course of his judgment, HHJ Levenson made one further interesting point. Reliance had been placed by counsel for the local authority on the 2001 DfE (as it then was) Inclusion Guidance which suggests that in order for a dual placement to count as mainstream education over 51% of the child’s time must be spent in mainstream. HHJ Levenson took the view that there was no magic in this number, which could not affect the wording of the statute which refers to ‘parts’ of a child’s educational provision. He said that while there was no doubt a de minimis point, education at home with an element of co-location at a school is ‘education at a school, at least in part’. Further, in his view 30% of time in mainstream was well above any de minimis threshold.

Holly Stout

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