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 to attend.

If you feel that the head teacher of a school is less than enthusiastic about your child attending their school, remember that their views will not necessarily be shared by those members of the school staff who will actually be working with your child.  Your local authority (LA) must consult the school you request as your preference, but the final decision on whether to name it in the final education, health and care (EHC) plan is made by your LA, not by the school. And, once a school (other than a fully independent school) is named in the EHC plan, it must admit your child. This is set out in section 43 of the Children and Families Act (CFA) 2014.

You should inform your LA that this school is the one you want naming and you expect it to formally consult the school.

When naming a school in a EHC plan, your LA must comply with your preference unless your LA can prove:

• the school you want is unsuitable to your child’s age, ability or aptitude, or his special educational needs
• his attendance will be incompatible with the efficient education of children with whom he would be educated, or
• his attendance will be incompatible with the efficient use of resources.

These reasons are set out in section 39(4) CFA 2014.

When an LA rejects a parent’s preference for a school it 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 your LA can rely on.

When parents want a 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 CFA 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. Please see our page on the right to mainstream for more information.

If your LA refuses to name your preferred school

When an LA decides not to name a parent‘s school of preference in a EHC plan, parents can appeal to the SEND Tribunal once the EHC plan is finalised.

You may need to appeal against sections B (needs) and F (provision), as well as section I (which names the school).

If you appeal sections B, F and I, the deadline for appealing is two months from the date on the letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever date falls the latest. If you appeal just section I you need to appeal within two months from the date on that letter, because you do not need a mediation certificate for that type of appeal.

You can find out more about appealing to the SEND Tribunal on our website.

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.

Your LA will need to prove why your son cannot attend the school of your preference. If you appeal and your LA fails to convince the SEND Tribunal, the SEND Tribunal will order your LA to name the school you want.