Is there a difference between a school being “suitable” and it being “appropriate”?

As is well-known, under the Children and Families Act 2014, where a parent or young person requests a particular school or institution (apart from a non-section 41 independent school) be named in section I of an EHCP then the local authority must name it unless one of the statutory exceptions applies. The first of these is that it is not “suitable for the child’s age, ability, aptitude, and special educational needs” (section 39(4)(a)). If the preferred placement is not suitable, or if no preference is expressed, then the local authority must name a school or insitution which it thinks would be “appropriate” (sections 39(5)(a) and 40(2)(a)).

What if a tribunal considers whether a school is “suitable” when it ought to consider whether it is ‘appropriate’? That was the situation before the Upper Tribunal in LC and RC v Hampshire County Council. The UT held that the FTT had erred in applying the wrong test but that on the facts of that case this was not a material error of law.

The relevant facts can be stated briefly. The appeal was brought by the child’s parents against the FTT’s decision to name an independent special school in Section I of the EHC Plan. They had sought EOTIS and for section I to be left blank. The FTT had not been satisfied (as required by section 61) that it would be inappropriate for the child’s special educational provision to be made in school and there was no challenge to that decision.

The tribunal then went on to apply the test in section 39(4)(a) and consider whether the local authority’s proposed school was suitable for the child’s age, ability, aptitude, and special educational needs. The tribunal decided that it was and so it should be named in section I.

It was agreed by the parties in the appeal that the FTT should have applied the “appropriate” test in section 40(2)(a) but the local authority argued that this made no difference. The local authority accepted that in R (An Academy Trust) v Medway Council [2019] EWHC 156 (Admin) the High Court said that a school might be “appropriate” even though it was not “suitable”, suggesting the former is wider than the latter, but argued that as the FTT found that the school was suitable, it was impossible to see how it could have come to a different conclusion if it had instead considered whether that school was appropriate.

The parents argued that it did make a difference, and that as a result of considering the wrong test the FTT failed to consider various matters. In particular, it was contended that the FTT failed to enquire adequately into evidence which indicated risks to the child’s welfare and safety at the school and if it had applied the correct test it would have found that these these matters rendered the school inappropriate.

The Upper Tribunal rejected the parents’ argument, holding that the tribunal’s decision adequately took those particular matters into account and that the tribunal would have reached the same conclusions if it had applied the test of whether the school was ‘appropriate’. As such, although the FTT erred in applying the wrong test it did not make a material error of law.

A final point to note is that it was not suggested by the local authority or the school that the child would physical attended the school site to begin with. Instead, what was proposed was that the child would be admitted to the school and entered on its register of pupils but the school would initially arrange and oversee a package of education delivered at home with a gradual transition to actual attendance at the school premises. The Upper Tribunal expressed some concern about whether this was consistent with what was said in NN v Cheshire East Council [2021] UKUT 220 (AAC) about attending a school involving physical presence, and whether the school could lawfully be named in such circumstances. However, as the judgment records, the parents’ barrister confirmed that this point was not pursued so no decision about it was made.

This case is a helpful reminder that there is a difference in the legal tests to be applied before naming a school or institution in section I of an EHCP – where a statutory preference is expressed the test is suitability, otherwise it is appropriateness – and that where one of the statutory exceptions to a parental preference applies (or no preference is expressed) then a school can lawfully be named even if it is not suitable for the child’s age, ability, aptitude, and special educational needs, as long as it is ‘appropriate’.

Paul Greatorex, one of the directors of LASEN, represented the local authority in this appeal.