Legal Question

21 November 2025

“Disabled Activists have raised growing concerns about government signals suggesting a stronger emphasis on ‘Resource’ bases and ‘Units’, rather than Inclusive Education. Under the current Children and Families Act 2014, is such a policy direction legal? If not, what measures would the government need to take to make it lawful and what would that mean for the right to Inclusive Education in the UK?” 

Answer

At the time of writing, the government has committed to reforming SEN but there are no concrete proposals about what will be done, so it is difficult to say for sure what changes will be needed.  

The current position 

The Children and Families Act 2014 contains two key provisions relating to inclusive education:  

• Section 33, which provides that a child must be educated in a mainstream school (unless this is incompatible with the wishes of the parents or the provision of efficient education for others); and 

• Section 35, which states that when a child with SEN is being educated in a  mainstream school, those making special educational provision must ensure that, so far as is reasonably practical, the child engages in the activities of the school together with children who do not have special educational needs (unless this would not be compatible with making the provision the child requires, the efficient education of others, or the efficient use of resources).  

Additionally resourced provision (“ARP”) 

ARPs (sometimes known as “resource bases” or “units”) are part of a mainstream school.*  Local Authorities will often “name” the ARP in section I of a child’s EHC Plan, but in law, children in the ARP are attending the mainstream school and that is what should be specified in Section I. This means that placing a child in a unit is not incompatible with section 33, since the child is being educated in a mainstream school.  

It might be unlawful under s35, since the child would not be “engaging in the activities of the school” with the other children. However, s 35 isn’t an absolute duty and there are several caveats. Whether it would be unlawful would depend on the precise facts of the case: for example, how long does the child spend in the ARP and what are they doing whilst they are there? Could the provision be made in a mainstream class? 

Disability discrimination 

It is possible that putting a Disabled child into an ARP could be considered to be discrimination arising from a disability (treating a child “unfavourably” because of something that arises from a disability). For example, if being in the ARP meant that the child could not take the same GCSE subjects as offered in the rest of the school, it could be argued that this was discrimination. Again, this is very dependent on the individual facts of the case.  

Is the policy lawful? 

As can be seen, the government would not necessarily have to amend the Children and Families Act 2014 to allow more children to be placed in ARPs. However, what this means for inclusion is unclear. One of the key questions is what the extra ARP places are intended to replace.  If the ARPs are going to take more of the children who would otherwise be in mainstream school, this would be a blow for inclusion. However, if the plan is for such places to be filled by children who would have had to go to special schools, then it can be argued that this will be a more inclusive system, as it would allow children who would be completely outside the mainstream to be included in mainstream classes at least some of the time.  

* There are some rare exceptions where such “units” are satellite provision from a special school – in this case, any child in the unit would be treated as attending that special school. 

Simpson Millar Solicitors