We have received the draft education, health and care plan and all the professional advice.

We have been told that we can express a preference for a school but believe our son needs intensive special help of the kind which can only be provided in a specialist independent school for autistic pupils. But we’ve been told that we can’t express a preference for an independent school and the LA intend to name one of their own special schools. What can we do?

In law, local authorities (“LAs”) 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. This is set out in section 9 of the Education Act 1996, and also in paragraph 9.84 of the SEN and Disability Code of Practice.

Parents have a right to request most types of school other than fully independent schools, as explained here. While this right does not apply to independent schools, you can still ask and argue for a place at an independent school. However, the onus is on you to prove that none of the schools the LA is offering can meet your child’s needs, or that placing your child in that school will not constitute unreasonable public expenditure – and that, therefore, they must place your child in the independent school. 

Additionally, you must have an offer of a place from the independent school.

Within 15 days of receiving the draft EHC plan, you can ask for a meeting with the LA and/or make written representations about the EHC plan. Either in writing or at the meeting, you should explain that you want the independent school named in Section I of the final EHC plan and why. You should also explain why you do not believe that the schools the LA can offer can meet your child’s special educational needs (“SEN”) or that placing your child in the school will not be an unreasonable cost to the public purse. If you can convince them of this, then they may consider an independent school.

It may be that the professional advice gives you the evidence you need to prove that your child’s needs cannot be met by any school the LA can offer him. If not, you might have to consider getting a second professional opinion.

If that doesn’t work

If you are unable to persuade the LA at the draft EHC plan stage to name the independent school you want, then you will have to consider appealing to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) when 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 more information about appealing to the SEND Tribunal here.

For more information, see the section on asking for an independent setting in choosing a school or college when you have an EHC plan.