SEN caselaw insight: OO and BO v London Borough of Bexley [2023]

When does the attendance of a child or young person at a requested school or other institution become incompatible with the provision of ‘efficient education’ for others?

Why is this case important?

Schools need to consider this when responding to consultations.  For example, although the school might be suitable for the child’s needs (in that it has suitably qualified teachers/provision to support such a child), the child’s admission would nevertheless be incompatible with the provision of ‘efficient education’ for others.  This is usually an essential point for mainstream schools.  But special schools may also need to demonstrate such incompatibility; it is not enough to say that the school is full. 

Schools need to work through the test as described below and demonstrate and explain why the admission of this child would reduce the standard of education of existing pupils below the ‘efficient education’ standard they currently receive. Mainstream schools would also need to show that there are no steps that they can take to overcome this.

Key learning points:

The Upper Tribunal made the following points:

• The statutory test required that the quality of education provided to other pupils would fall below the threshold standard of ‘efficient education’; it was not enough that there would be a “material effect” on the quality of provision of education for others.

• “Incompatible” is a strong term, which has a stronger meaning than “prejudicial to”; it is necessary to consider whether the impact of a child’s attendance is so great that it would be incompatible with the efficiency of the existing pupils’ education.

• ‘Efficient education’ is defined in the SEND Code of Practice, paragraph 9.79: “efficient education means providing for each child a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have.”  It indicates a standard, not the very highest desirable standard or the very basic minimum, but something in between.

• The fact that the school was “full” and had “little leeway” was in itself inadequate to explain why Q’s attendance would reduce the standard of education of other pupils below the ‘efficient education’ standard.

• The test, as has been noted in previous cases, is a sophisticated one and requires a degree of precision and/or detail as to:

• Which other children’s education would be affected by a child attending the school?

• Whether the standard of those children’s education is currently at, or above, the ‘efficient education’ standard?

• What effect would the child’s attendance have on the standard of those other children’s education?

• If the effect was to reduce the standard below that of ‘efficient education’, was that unavoidable, or, for example, could adjustments be reasonably made to avoid that effect?

• The test must be approached with the precise special education provision (i.e. that which is required in the child’s EHCP) required by the newly-attending child in mind.