11. March 2026

When is a mainstream, not a mainstream? AA v London Borough of Hounslow [2025] (SEN) UKUT 226 (AAC)

The Upper Tribunal has provided a judgment on the “right to mainstream” under Section 33 of the Children and families Act 2014 (CFA), as well as considering the application of Section 9 of the Education Act 1996.

Facts and the First-tier Tribunal decision

In AA v London Borough of Hounslow (SEN) UKUT 226 (AAC), C was a young child with diagnoses of Autism Spectrum Disorder (ASD) and Developmental Delay, who experienced significant needs relating to communication, sensory regulation and emotional regulation. Her parents sought a placement in a maintained mainstream primary school (School O). However, when drafting C’s EHC Plan, the Local Authority decided to name School S, a maintained mainstream primary school with a specialist ASD resource base.

The First-tier Tribunal (“FTT”) found in favour of the Local Authority on the grounds that School O was unsuitable for C due to its large class size, lack of space, and lack of onsite speech and language therapy and occupational therapy. It did not consider s.9 of the Education Act 1996.

Permission to appeal

Failure to consider s.9 Education Act 1996

The parents were granted permission to appeal to the Upper Tribunal on the grounds that the FTT did “did not pay sufficient regard to parental preference for School O” under s.9 of the Education Act 1996.

The right to a “mainstream experience”

The parents were denied permission to appeal on the grounds that School S’s resource base was not a ‘mainstream experience’. Judge Citron in the Tupper Tribunal repeated the finding of Judge Davies at the permission stage that the ASD resource base at School S was part of the same institution as the mainstream school. Judge Citron added “that in this case, it is clear that the ASD resource base operates as part of the mainstream school, with the children from the base joining with the children from the mainstream classes for certain activities, and the plan in C’s case being to work towards further elements of integration with the mainstream classes.”

By contrast, a fully separated resource base that ‘in reality operates as a separate special school (even in co-located/co-managed with a mainstream school)’ would not be classed as a mainstream setting. This follows the reasoning in MA v LB Kensington & Chelsea [2015] UKUT 186 (AAC).

Upper Tribunal Judgment

Failure to consider s.9 of the Education Act 1996

Ultimately, the Upper Tribunal found that the First-tier Tribunal’s failure to engage in the s.9 analysis was immaterial because it would not have led to a different outcome. However, this was not without the Judge running through at what stage of the analysis it would have become immaterial. 

The Judge determined that whether a placement was incompatible with the efficient instruction and training of C herself (s.9) was a different exercise to determining whether a placement was suitable (s.39(4)(a)) (as per the decision in R (Hampshire CC v R) [2009] EWHC 626 (Admin), [2009] ELR 371 at [30]-[36] per Stadlen J). The Judge stated that he could foresee situations in which teaching was suitable but inefficient, or efficient but unsuitable.

The Judge also found that the language of s.9 indicates that the LA and Tribunal should consider what steps can be taken to address the incompatibility with the efficient instruction and training of C herself. By contrast, the test for suitability does not involve that assessment: s.33(4) of the CFA only requires the LA to take such steps as are reasonable to address the incompatibility with the efficient education of others. The Judge did, however, note that “in the ordinary course the Tribunal will in deciding whether a school is suitable bear in mind the various statutory duties on the school and the local authority… to make appropriate provision for children with special educational needs.”

It is because of this difference in the s.9 and s.39(4)(a) analyses that the Judge stated that “it is possible that if the Tribunal had considered s.9, it might have reached the conclusion that naming School O would not be incompatible with the provision of efficient instruction and training, so that (if the cost of both placements was equal) the Tribunal would have had to have regard to the general principle that C should be educated in accordance with her parents’ wishes.”

At this point, the FTT would have to look at the schools again, having found that both schools were “adequate” and the FTT would have to consider the general principle that pupils are to be educated in accordance with the wishes of their parents. The Judge found that it was at this stage, however, that it was “inevitable” that the FTT would have arrived at the conclusion that School S was the appropriate school to name in Section I.

The Judge found that the analysis of suitability “contains all it needs to contain to constitute a proper application of s.9”. The FTT found that the School O was unsuitable and “normally an unsuitable school will not be ‘appropriate’”; the FTT also clearly had regard to parental preference and found that less weight should be given to the expressed reasons for that preference. Finally, the FTT identified several reasons why School S was advantageous to C which were not available at School O.  

Conclusion

Overall, the judgment clarifies two important elements of the law relating to Section I disputes. Firstly, that the parental right in s.33 is a right to a ‘mainstream setting’, not to a particular mainstream school, or even a particular ‘mainstream experience’. However, care must be taken to ensure that “an institution in reality operates as a separate special school (even if co-located/co-managed with a mainstream school), is not classified as a ‘mainstream school’”. Secondly, that the test under s.9 of the Education Act 1996 is a separate test to s.39, with different considerations, and that the FTT must undertake that analysis.  

Benjamin Deery (Paralegal at SV Law) and James Dix (Senior Paralegal at SV Law)

11.03.2026

This blog contains general information about law and legal practice. The information is not advice and should not be treated as such.