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Neutral Citation Number:	2011 UKUT 50 AAC
Reported Number:
File Number:	HS 1840 2010
Appellant:	MS
Respondent:	London Borough of Brent
Judge/Commissioner:	Judge H. Levenson
Date Of Decision:	03/02/2011
Date Added:	24/02/2011
Main Category:	Special educational needs
Main Subcategory:	Special educational provision - naming school
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 29. Special educational provision – education otherwise than in a school – parents wishing education partly at school and partly at home – meaning of “education in a school” The father of a child with special needs appealed against the contents of a statement naming a particular maintained special school which he should attend on a full-time basis. He had been attending a maintained mainstream primary school on a part-time basis and receiving a home-based programme using Advanced Behavioural Analysis (ABA) for 30 hours a week. The parents wished him to continue attending that school on a part-time basis with home-based ABA of 40 hours weekly. Section 319 of the Education Act 1996 provides that where a local authority is satisfied that it would be inappropriate for the special educational provision which a learning difficulty of a child calls for, or any part of such provision, to be made in a school, it may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school. Section 316 provides that where a child with special educational needs should be educated in a school, he must be educated in a mainstream school unless that is incompatible with the wishes of his parent, or the provision of efficient education for other children. In TM v London Borough of Hounslow [2009] EWCA Civ 859 it was held that in addressing the question under section 319 it was not enough for the local authority to ask simply whether the school can meet the statement of needs but it has to see if a school would not be suitable or would not be proper, and to do so must take into account all the circumstances of the case in hand. The First-tier Tribunal decided that it was not inappropriate for any of the provision to be made in a school, and applying section 316 decided that part 4 of the statement should name the mainstream school on a full-time basis with a carefully planned transition programme in place leading to full-time attendance over a six-month period. ABA would continue to be delivered at home but decrease in proportion to the increasing number of school hours until the transition was complete at which point a further review would be necessary. The father appealed to the Upper Tribunal. The local authority argued that the wishes of the parents were not for education in a school but for education at home with an element of co-location at school and, having concluded for the purposes of section 319 that it would not be inappropriate for the child’s needs to be met at the special school, the tribunal should not have gone any further as section 316 did not apply, citing the Department for Education and Skills 2001 Guidance on Inclusive Schooling, which indicated that a child had to be in mainstream education for at least 51 per cent of the time in order to count as being in mainstream education. Held, allowing the appeal, that: 1. education at home with an element of co-location at a school is education at a school, at least in part, and while there may be a de minimis requirement for what is to count as attendance at a school, the parents’ proposal for about 30 per cent attendance was well above any de minimis threshold (paragraph 22); 2. the 2001 Guidance was designed to prevent local authorities from claiming that children with special educational needs were in mainstream education when in fact they were not and had no relevance to the section 316 exercise and, as a matter of law, it could not provide authoritative interpretation of the statute (paragraph 22); 3. having decided under section 319(1)(a) that it was not inappropriate for any of the provision to be made in a school, and having carried out the section 316 exercise, the tribunal should then have considered whether under section 319(1)(b) it was inappropriate for part of the provision to be made in a school and, in failing to separate out the issues in the case, the decision of the First-tier Tribunal involved the making of an error of law (paragraphs 23 and 24). The Upper Tribunal judge remitted the case to a completely differently constituted tribunal for rehearing.
Decision(s) to Download:	[2011] AACR 29ws.doc