I’ve visited the local secondary school, which is the school we want our son to attend. Our son has Down’s Syndrome, and the head made it clear that he does not want him.

If you feel that the head teacher of a school is less than enthusiastic about your child attending his school, remember that his views will not necessarily be shared by those members of the school staff who will actually be working with your child.

The local authority (“LA”) must consult the school you name as your preference, but the final decision is made by the LA, not by the school. And, once a school is named on the education, health and care (“EHC”) plan, it must admit your child. This is set out in section 43 of the Children and Families Act (“CAFA”) 2014. You should inform the LA that this school is the one you want naming and you expect them to formally consult the school.

When naming a school on a EHC plan, the LA must comply with the parent‘s preference unless the LA can prove:

• the school parents want is unsuitable to the child’s age, ability or aptitude and his special educational needs;
• their attendance will be incompatible with the efficient education of children with whom they would be educated; or
• their attendance will be incompatible with the efficient use of resource

These criteria are set out in section 39(4) CAFA 2014.

When an LA rejects a parent’s preference for a school they must be able to show which of the above conditions would be met if your child were to attend that school. These are the only conditions the LA can rely on. When parents want mainstream education and the LA is able to show that one of the above conditions apply, the LA must go on to apply an additional test. At this stage, ‘suitability’ cannot be used as a reason to deny a child or young person mainstream education.  The LA must be able to show that:

• Their attendance is incompatible with the efficient education of other children with whom they would be educated with; and
• there are no reasonable steps the LA or the school can take to remove the incompatibility.

This is set out in section 33 CAFA 2014.

It may seem strange that ‘suitability’ is not a legal consideration. However, the idea behind this is if Section F of the EHC plan details all of the specialist help a child or young person needs then arguably, they can have their needs met in any mainstream school. See the section on the right to mainstream for more information.

If that doesn’t work

When an LA decide not to name a parent‘s school of preference on a EHC plan parents can appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) once the EHC plan is finalised. It is advisable to appeal against Sections B and F, as well as Section I (which names the school). The deadline for appealing is two months from the date of the decision or one month from the date of the mediation certificate, whichever date falls the latest. You can find out more about appealing to the SEND Tribunal here.

The question of suitability concerning mainstream education has been considered by the courts, who have confirmed that it is very difficult for an LA to refuse a child a mainstream school place. You can find cases on the right to mainstream education in our case law section.

The onus is on the LA to prove why your son cannot attend the school of your preference. If you appeal and the LA fail to convince the Tribunal, you will get the school you want.