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. 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.    

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.   

Children who have an EHC plan  

If your child has an EHC plan, it is the LA’s duty to make sure the provision set out in the EHC plan is made. However, under section 42(5) of the Children and Families Act 2014, the LA does not need to do so if you have made “suitable alternative arrangements”.   

If the independent school is named in Section I of your child’s EHC plan, and there is no other suitable school which your child could attend, it is likely that the LA remains responsible for your child’s special educational provision as set out in Section F of the EHC plan and should be paying the school fees.   

However, if the LA suggested that a different suitable school should be named in the EHC plan, and you chose to send your child to an independent school and pay for it yourself instead, then this is likely to count as making suitable alternative arrangements. In this case the LA won’t have any further duties towards your child in relation to their SEN, and you will be responsible for arranging (and paying for) any special educational provision they require. However, your LA must still review your child’s EHC plan on an annual basis even if you did decide to make suitable alternative arrangements.


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