We’ve received the draft education, health and care plan and have found a maintained special school we really like for our son.

Parents or young people have a right to make a request for:

• A maintained nursery or school;
• An Academy;
• A Further Education college;
• A non-maintained special school; or
• A Section 41 school or college.

(See the section on types of schools for more information.)

Because you are asking for a maintained school, your own Local Authority (“LA”) is under a legal duty to place your son in the school of your preference, provided that:

• it is suitable to his age, ability or aptitude and his special educational needs;
• his attendance there will not be incompatible with the provision of efficient education for other children; or
• the efficient use of the LA’s resources.

These conditions are set out in section 39(4) of the Children and Families Act (“CAFA”) 2014.

There is no definition in law of what it means for a school to be ‘full’. LAs are able to name schools which say they are ‘full’ in EHC plans and must do so unless they are able to prove the child’s attendance is incompatible with the efficient education of others. In order to refuse to name a school, the LA has to show that because of the high numbers of pupils in the school, the child’s needs won’t be met, or that other children’s needs would not be met, or that there would be an inefficient use of resources (for example, as a result of them having to appoint another teacher or build another classroom).

This is the law, regardless of which LA is responsible for the school you prefer. As you have expressed a preference for this school, your LA must consult the governing body of the school as well as the neighbouring LA (because the school you want is maintained by that LA) (section 39(2) CAFA 2014). After this consultation, the decision has to be made by your LA – not the school itself or the neighbouring LA.

The first step is to write to your own LA reminding them that they (and no-one else) has the duty in law to make the decision. You can use our template letter to do this.  

If you are unhappy with the reply you receive to this letter, and the LA go ahead and finalise the EHC plan without naming the school of your preference, you will be able to appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”). 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 when a LA can refuse to name a school in an EHC plan has been considered by the courts, who have confirmed that parents or young people have strong rights to name a school or college of the types listed above. You can find cases on the right to a particular school in our case law section.