Legal guide: the “right” to inclusive education in English law

There is a strong presumption that a child or young person should be educated in a mainstream setting. This presumption is almost unqualified in relation to children and young people with SEN but without an EHC Plan, see section 34 of the Children and Families Act 2014 (‘the 2014 Act’)

For children and young people with EHC Plans, the starting point is section 39 of the 2014 Act. This requires the Local Authority (LA) to comply with most requests for a particular school or college to be named in Section I of the Plan [1], unless to do so would be unsuitable or incompatible with the efficient education of others or with the efficient use of resources. If these exceptions apply, the LA must then identify a school or college or type of school or college that is appropriate for the child or young person. The issue then has to be considered further under section 33. [2]

Section 33 [3] says that local authorities must name a mainstream school or mainstream post-16 institution in the Plan, unless that would be incompatible with either:

• The wishes of the child’s parents or young person, or;
• The provision of efficient education for others.

It is important to note that section 33 does not permit a local authority to refuse to name a mainstream school or college on cost grounds. This is discussed further below.

The ‘incompatibility with the provision of efficient education of others’ exception is a narrow exception, and it will be difficult for the LA to show that it applies:

• “Efficient education” doesn’t mean the gold standard of education. [4] The LA will have to show that the other children in the class would not receive a “a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have” (SEND Code of Practice, ‘COP’, para 9.79).
• “Incompatibility” is a high threshold. It is not enough for the LA to show that there would be some adverse effect on the efficient education of other children. Rather, the question is whether any adverse impact would be so great as to be incompatible with the provision of efficient education to other children in the class. [5]
• In addition, the LA cannot rely on the efficient education exception unless it can show that that there are no reasonable steps which could be taken to prevent the incompatibility. The COP lists a number of factors which can help to determine whether a particular step is reasonable, including the extent to which a step would be effective and practical, and how much it would cost (COP, para 9.91). [6]

It is important to note that the section 33 exceptions are the only exceptions which a local authority can rely on to refuse to educate a child or young person in a mainstream setting. If neither of those exceptions are engaged, the LA cannot refuse simply because:

• The LA believes that a mainstream school cannot meet a child’s SEN or that a particular school is not suitable. This is because if there are no suitable schools with available places already, whether inside or outside its area, the LA is under an absolute obligation to make a school suitable. [7]
• The LA thinks it would cost too much money. Unlike the provisions of the 2014 Act which deal with which school should be named in ECH plans, there is no exception to the section 33 presumption on the basis that mainstream education would be incompatible with the efficient use of resources.

It is also important to note section 35 of the 2014 Act, which requires that mainstream schools secure that children with SEN engage in ‘the activities of the school together with children who do not have special educational needs’, subject to certain exceptions.[8] Section 35 generally prevents children with SEN being segregated within mainstream schools.

How can human rights help?

Under section 6 of the Human Rights Act 1998, LAs must act compatibly with most of the rights set out in the European Convention of Human Rights (‘ECHR’). [9]

These rights include the right to education (Article 2 of the First Protocol to the ECHR). It is important to note that A2P1 is framed negatively rather than positively – ‘no person shall be denied the right to education’. This means that, under A2P1, the LA cannot be required to provide a child with a particular type of education. However, the Supreme Court has suggested that failure to make adequate provision for a child with SEN, such that the child is unable to attend school for a considerable period of time, can amount to a breach of A2P1. [10]

In addition, Article 14 ECHR requires that children must be able to enjoy their Convention rights without being discriminated against, including on the grounds of disability. This means that LAs cannot adopt policies or make decisions which, without good reason, treat children with disabilities differently from children who are not disabled. For example, a blanket policy excluding disabled children from mainstream school would obviously amount to unlawful discrimination under Article 14, read with A2P1. In the case of Çam v. Turkey (Application no. 51500/08), the refusal to enrol a blind person in the Music Academy even though she had passed the examination violated Article 14 ECHR read with A2P1. The Turkish authorities had not attempted to identify the applicant’s needs or to explain how her blindness could have impeded her access to a musical education.

In other circumstances, Article 14 may require LAs to treat children with disabilities differently from other children, in order to properly accommodate their different needs. [11] This duty recognises, for example, that in order to effectively learn in a mainstream setting, children with SEN might require different, additional support to other children.

In deciding whether a particular decision or policy is discriminatory contrary to Article 14 or directly breaches the right to education in A2P1, the courts will also consider the rights contained in other international conventions. These include the Convention on the Rights of Persons with Disabilities (CRPD), Article 24 of which requires the government to ensure that children with disabilities can access inclusive, quality and free education on an equal basis with others. The UK has qualified its ratification of Article 24 CRPD, to allow for the continued existence of special schools and to allow children to be placed outside their home communities. [12] ALLFIE is campaigning hard to press the government to remove these qualifications and implement Article 24 fully as written in the convention. However the qualifications do not undermine the basic right in Article 24 to an inclusive education for disabled children on an equal basis to other children.

What other duties does the LA owe towards my child?

LAs owe lots of other duties which are potentially relevant for children with SEN, including:

• The duty to promote the welfare of children, including children with SEN, when carrying out their educational functions (section 175 Education Act 2002)
• The non-discrimination provisions of the Equality Act 2010, including the duties in relation to reasonable adjustments (sections 20-21). The reasonable adjustments duty operates in parallel to the duty to take reasonable steps to remove any “incompatibility” under section 33, as discussed above.
• The duty to pay “due regard” to the need to eliminate discrimination and advance equality of opportunity for disabled children (section 149 of the Equality Act 2010).

Challenging a refusal to place a child in mainstream school

If the LA seeks to rely on section 33 in order to refuse your child a place at a mainstream school, the first thing you should do is push back. The efficient education exception is not meant to be invoked lightly, [13] and for the reasons set out above, LAs will have a high threshold to cross in order to show that it applies.

In particular:

• Remind the LA that section 33 is based on the assumption that, with the right support, children with SEN can and should be included in mainstream education – the LA’s focus should be on the progressive removal of barriers to learning and participation in mainstream education (COP, para 1.26).
• Remember that the lack of a suitable school, or the cost of providing a mainstream place, are not valid reasons for the LA to refuse to provide mainstream education under section 33.
• Don’t simply accept that mainstream education of your child would be incompatible with the efficient education of others. Instead, ask for a reasoned explanation as why the impact of doing so would be so adverse as to cross the incompatibility threshold. Ask the LA to show what ‘reasonable steps’ to remove the incompatibility have been considered.

If the LA still refuses to place your child in a mainstream school, there are a number of ways you can challenge that decision, including:

• If the child or young person has been issued with an EHC Plan or has had an annual review of their Plan, by bringing an appeal to SENDIST (the SEN and Disability Tribunal). In an appeal against the school or institution named in Section I, the Tribunal can order the LA to name a specific mainstream school and will decide for itself whether any of the exceptions in section 33 apply. Appeals to the Tribunal where parents are seeking a mainstream place will often succeed, because this is what the law favours.
• By bringing a claim for judicial review in the High Court, where the court can consider (for example) whether the LA’s refusal to educate the child or young person in a mainstream setting amounts to a breach of their human rights. This is particularly relevant where there is no right of appeal to the Tribunal. Specialist legal advice will be needed before bringing any claim for judicial review, not least because of the risk of having to pay the LA’s costs if the claim fails. Legal aid may be available to meet all costs and specialist solicitors can advise on this.
• By bringing a disability discrimination claim under the Equality Act 2010, which depending on the body which is said to have discriminated against the child or young person would be brought in either SENDIST or the county court. Issues of disability discrimination can also be raised in applications for judicial review.

If your child is in a mainstream school, you can rely on section 35 to challenge any segregation they may be experiencing within the school, although you will need to consider the various exceptions under section 35 which the school may rely on (see above).

For more information on these issues, see the following books: [14]

• Hannett, McColgan and Prochaska, Special educational needs and disability discrimination in schools (2017)
• Broach, Clements and Read, Disabled Children: A Legal Handbook (Second edition, 2016) [15]. A third edition of the Legal Handbook will be published in 2019.

Steve Broach is a barrister at Monckton Chambers, specialising in the law affecting disabled children and young people. He is co-author of Disabled Children: A Legal Handbook’

[1] Including all requests for maintained mainstream schools and academies.

[2] See ME v LB Southwark [2017] UKUT 73 (AAC) at para 9. See also para 12; ‘The terms of sections 33 and 39 show that section 39 should be considered first and section 33 only applies if the local authority does not accede to the parents’ request under section 39…’.

[3] This provision was previously found in section 316(3) of the Education Act 1996, and many of the cases decided under the EA 1996 are equally relevant to section 33 of the 2014 Act. Section 33 also applies if the parents or young person have not asked for a specific school or college.

[4] NA v Barnet LBC [2010] UKUT 180 (AAC), paras 33-34.

[5] R (Hampshire CC) v SENDIST [2009] EWHC 626 (Admin), paras 48 and 56-59. See also ME v Southwark at para 21; ‘It is not sufficient to show that attendance would have some impact. It is necessary to identify what that impact would be and then consider whether that would be incompatible.’

[6] The COP also gives useful examples of reasonable and unreasonable steps (paras 9.92-9.93).

[7] Harrow Council v AM [2013] UKUT 157 (AAC), para 27. In ME v Southwark, Judge Jacobs suggested that this obligation was still qualified by reference to incompatibility with the efficient education of others.

[8] Being issues of reasonable practicability, delivery of special educational provision, provision of efficient education for others and efficient use of resources.

[9] Although the European Court of Human Rights has noted that ‘The specific case of persons with disabilities has only rarely been raised before the Court’ in the context of the right to education. See Guide on Article 2 of Protocol No. 1 to the European Convention on Human Rights, August 2018.

[10] A v Essex CC [2010] UKSC 33, esp. Lord Phillips at [91]-[92].

[11] Thlimmenos v Greece (2001) 31 EHRR 15.

[12] See here the analysis by ALLFIE at https://www.allfie.org.uk/campaigns/article-24/

[13] SEND COP, para 9.94.

[14] Upon which this briefing draws. Both books are published by Legal Action Group.