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
• an institution in the Further Education sector, such as a Further Education college
• a non-maintained special school, or
• a Section 41 school or college.

Please see our page on the different types of schools for more information on this, along with guidance on how to check a school’s type.

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
• his attendance there will not be incompatible with the efficient use of your LA’s resources.

These conditions are set out in section 39(4) of the Children and Families Act (CFA) 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. Case law has made clear this is a high test for an LA to meet.

Instead of refusing to name the school simply because it is ‘full’, your LA has to show how adding just one more child (your child) to the school will mean the other children’s education would be less than efficient in quality.

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) (this is set out in section 39(2) CAA 2014). After this consultation, the decision has to be made by your home LA – not the school itself or the neighbouring LA.

The first step is to write to your own LA reminding it that the ‘home’ LA (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 your LA finalises the EHC plan without naming the school of your preference, you will be able to appeal to the SEND Tribunal.

You may need to appeal 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 when an 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.