Parents or young people have a legal right to request that a particular school or college is named in an education, health and care (EHC) plan (or to express a preference for an independent school, college or other institution).
A parent or young person will be able to request a particular school or college when they receive a draft EHC plan or an Amendment Notice amending an EHC plan. This might be when they are getting an EHC plan for the first time; if the EHC plan is being amended after an annual review; or if the EHC plan is being amended at any other time (for example, if the child or young person has to move schools and the EHC plan needs to be amended to reflect that).
The parent or young person has a right to request any of the following types of school or college:
- A maintained school or nursery (mainstream or special)
- An Academy (mainstream or special)
- An institution in the Further Education sector
- A non-maintained special school
- A section 41 school (a published list of approved independent schools, independent special schools and post-16 institutions)
The only reason the local authority can refuse the request is if:
- The setting is unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
- The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
- The attendance of the child or young person would be incompatible with the efficient use of resources.
If the parents or young person wants a mainstream school or college named in the EHC plan, there is another part of the law they can rely on as well. A child or young person with an EHC plan must be educated in a mainstream setting unless:
- it is against the wishes of the child’s parent or the young person; or
- it is incompatible with the provision of efficient education for others and the LA shows that there are no reasonable steps that it could take to prevent the incompatibility.
Even if the LA successfully argued that a mainstream school was unsuitable for the ability, aptitude or SEN of the child or young person, if they wanted to name a special school against the parent or young person’s wishes they would also have to show that it was incompatible with the provision of efficient education for others.
Note, however, that this is a right to mainstream education but not necessarily a right to a particular mainstream school.
Asking for an independent setting
Parents or young people have a right to request the settings listed above, however, this does not mean that they cannot ask for and argue for a place at an independent setting which is not a section 41 school.
Where parents are making representations for an independent setting, the LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. If a young person is requesting an independent school or college, the LA should consider this as part of their duty to consider the young person’s views, wishes and feelings.
The difference is this: when a parent or young person requests a school or college, the LA must comply with the request unless the limited exceptions outlined above apply. If the LA refuses to name the parent or young person’s choice, the onus is on the LA to prove why it is not possible.
However, when a parent or young person asks for an independent setting as part of their ‘representations’ on the draft EHC plan, the onus is on them to prove that none of the schools the LA is offering can meet the child or young person’s needs, or that the cost of the placement will not constitute unreasonable public expenditure.
Public expenditure includes all the costs to the public purse of the placement not just those incurred by the LA education budget. This can include social care costs, health costs, travel costs (if eligible for home to school transport provided by the LA) and any other costs incurred by any public body.
If the parent or young person cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent setting proposed is an excellent school and/or better suited to the child or young person’s needs than the school the LA has in mind. LAs are not bound to offer a child or young person with SEN ‘the best’ provision to meet their needs – only what is necessary to meet their needs.
In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet the child or young person’s needs.
Where a parent or young person is requesting an independent setting, they will generally need evidence from a professional as to why the independent setting is the only school or college which can meet the child or young person’s needs.
Additionally, there must be an offer of a place from the independent setting. Unlike other settings, an LA cannot order an independent school to accept a child or young person.
It is always worth checking whether the independent setting is in fact a section 41 school or a non-maintained special school – if it is a non-maintained special school and not a section 41 school, then the burden shifts to the LA to show that it is not the appropriate school to name in the EHC plan.