My child attends an independent school and we pay the fees. Are children at independent settings entitled to support?

Children who do not have an EHC plan

Under Part 3 of the Children and Families Act 2014, nurseries, schools and colleges have legal duties to identify and support children and young people with special educational needs (SEN). These duties are explained in the Special Educational Needs and Disability Code of Practice 2015 and on our web page on how your nursery, school or college should help.   

However, the Children and Families Act 2014 and the SEND Code of Practice do not apply to wholly independent schools, and so these duties do not apply to them. If your child attends an independent school and you pay the fees, the school is not legally required to identify SEN or provide support in the same way.    

However, please note that:

• The Equality Act 2010 does apply to all schools and education settings. Independent schools must not discriminate against disabled pupils, and must make reasonable adjustments where necessary to avoid disability discrimination.   
• All providers of early years education that are funded by the local authority (LA), including those in the private and independent sector, must have arrangements in place to identify and support children with SEN and disabilities as required by the Early Years Foundation Stage framework. They must also have regard to the SEN and Disability Code of Practice.   
• If your child or young person attends an independent setting and you think they may have SEN and may need more support, you can ask for an EHC needs assessment. This is the first step in getting an EHC plan. Your LA will consider if they have or may have SEN and may need special educational provision through an EHC plan when deciding whether to agree to your request. When considering this, your LA must look to what special educational provision is generally available in mainstream settings generally in England, not what provision is or could be provided by your child’s independent setting. You can request an EHC needs assessment at any time, and we have a template letter you can use to make your request. 

Children who have an EHC plan  

Normally, if a child has an EHC plan, it is the LA’s duty to make sure the provision set out in the EHC plan is made. Section I usually names a school or type of school that the child will attend.

If an LA names an independent school or independent college in the EHC plan, usually it must also meet the costs of the fees, including any boarding and lodging where relevant.

However, if you choose to pay for them to attend an independent setting, the situation is likely to be different.

In this case, your LA is likely to say that you have made “suitable alternative arrangements”. Under section 42(5) of the Children and Families Act 2014, the LA does not need to make sure provision in Section F is made or pay the school fees if you have made such “suitable alternative arrangements” for your child.  

LAs can (but are not required to) help you make these arrangements suitable by providing financial support (paragraph 9.134 of the Code). For example, your LA could agree to fund required provision as such 1:1 support or therapy sessions.

Your LA does however still need to review your child’s EHC plan on an annual basis even if you did decide to make suitable alternative arrangements.

If you think the independent school your child goes to is the only school that can meet their needs or isn’t unreasonable public expenditure, you can try to have it named in Section I and without any conditions or references to you paying the fees by appealing to the SEND Tribunal if it recently been issued or reviewed.

 

If you are unsure of the situation, you should book an appointment to speak with us.