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).

If you have received your draft EHC plan, you can use our model letter to make a request for a particular school.

It is not uncommon for LAs to ask parents to complete a ‘general preference form’ so their preference(s) can be considered. However, these forms apply to children and young people without EHC plans through separate legislation. Therefore, parents who have children with EHC plans are not required to complete general preference forms.

Requesting a nursery, school or college

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.

These are listed in section 38(3) of the Children and Families Act (“CAFA”) 2014. (See the section on types of school and college for more information on what these different categories mean.)

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 (“SEN”) 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.

This is set out in section 39(4) CAFA 2014. The LA has to prove that at least one of these conditions applies in order to dislodge the parent or young person’s preference. Cases where each of these conditions have been considered can be found in our case law section.

If you want one of the above types of school or college and your LA is refusing to consult with them, or if they have rejected your request for a reason other than one of the reasons listed above, you can use our model letter to complain.

If they have already finalised your EHC plan and named a different school, you can appeal to the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”).

The right to a mainstream education

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. Section 33 CAFA 2014 says that a child or young person with an EHC plan must be educated in a mainstream setting unless:

  1. it is against the wishes of the child’s parent or the young person; or
  2. 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 (one of the lawful reasons for refusing a school, detailed above under ‘Requesting a nursery, school or college’), 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.

For further information, see the separate section on the right to mainstream education.

What happens after I make a request?

An LA, before naming a school, must consult:

(a) the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and

(b) if that school or other institution is maintained by another LA, that LA.

(Section 39(6) CAFA 2014.)

The LA should give them 15 days to respond. If they fail to respond, the LA does not have to wait to make a decision about naming a school/college. The LA still needs to stick to the statutory deadlines for issuing a final plan (for more detail on the various deadlines they must meet see the section on EHC needs assessments (where it is a plan being issued for the first time) or the section on changing an existing EHC plan). The LA should issue the draft EHC plan (or amendment notice) well before the deadline to make sure it can comply with its consultation duties.

The final decision rests with the LA where the child or young person lives. Even if the school or college, and/or the LA where the school or college is located (if different), objects, the home LA can still choose to name the school or college in the plan.

Asking for an independent school or college

Parents or young people have a right to request the settings listed above, set out in section 38(3) CAFA 2014.

However, this does not mean that they cannot ask for and argue for a place at an independent setting which is not on the above list.

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 (section 9 Education Act 1996). 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 (section 19 CAFA 2014).

The difference is this: when a parent or young person requests a section 38(3) 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 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 the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

The courts have considered situations in which an independent setting should be named in an EHC plan, and given examples of when a setting would be considered an unreasonable public expenditure. You can read about these cases in our case law section.

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, it comes within the list in section 38(3), and so then the burden shifts to the LA to show that it is not the appropriate school to name in the EHC plan. See the section on types of school for how to find out information about a particular school.

What happens once a school or college is named in an EHC plan?

If one of the type of nurseries, schools or colleges listed in section 38(3) CAFA 2014 is named in section I of an EHC plan then they must admit the child or young person (section 43 CAFA 2014).

If an independent school is named in section I, then the LA must pay any fees payable in respect of education or training provided for the child or young person at that school, institution or place in accordance with the EHC plan (section 63 CAFA 2014).

The LA could simply name a type of school or college (rather than a particular school/college). This is lawful, but it means that there is no school/college with the duty to admit the child or young person.

If you receive an EHC plan which does not specify a particular school/college, then you can appeal to the SEND Tribunal and seek to have a particular school/college named in the EHC plan.

If you disagree with the choice of school named in the plan by the LA then you could challenge the decision at appeal as well.

For more information, see the section on appealing to the SEND Tribunal. If you are arguing that a particular school should be named in the EHC plan, you may find it helpful to look at our case law page to see previous cases which could help your arguments.

 

If you haven’t been able to find the answer to your question on this page, see our FAQs.