An Upper Tribunal decision, OO and BO v London Borough of Bexley [2023] UKUT 223 (AAC), clarifies when a local authority can refuse to name a parent’s or young person’s preferred school in an Education, Health and Care Plan (EHCP).
The case concerned an autistic child whose parents requested a particular school. The local authority refused, arguing that admission would be incompatible with the efficient education of others because the school was “full”. The First-tier Tribunal accepted that argument, but the Upper Tribunal set the decision aside.
The key point is this: it is not enough to say that admitting a child or young person would have a “material” or negative impact on a school.
As Upper Tribunal Judge Zachary Citron noted, quoting NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC), “although ‘incompatible’ is indeed a very strong word”, it requires a finding that there is no way of avoiding the admission of the child reducing education for others below the statutory standard. Simply stating that a school is “full” or has “little leeway” is “inadequate to explain why attendance would, unavoidably, reduce the standard of education for other pupils below the ‘efficient education’ standard” (paras 12 and 16).
Where section 39(4)(b)(i) of the Children and Families Act 2014 is relied upon, the Tribunal must identify who would be affected, what standard of education they currently receive, how that standard would fall below “efficient education”, and why any impact could not reasonably be avoided.
The decision reinforces that preference for a school carries real legal weight and cannot be overridden without precise, evidence‑based reasoning.
Judgment: https://assets.publishing.
Disclaimer: This post is for general information only and does not constitute legal advice.
Sean Kennedy.
