Case overview

When receive a draft education, health and care (EHC) plan, you have a specific right to tell your LA which school or institution you prefer to be named in the final plan. Following that request, the LA has a conditional duty to name your preferred placement. The schools you have a right to ask for are listed in section 38(3) Children and Families Act (CFA) 2014 and include: maintained/academy mainstream and special schools, maintained nurseries, institutions within the further education sector, non-maintained special schools and independent special schools which are approved under section 41 CFA 2014.

Your LA must give you at least 15 days to make representations about the draft plan and tell the LA which setting you would like. If you do not make a request in this time, the LA (or the Tribunal acting in their place) must specify the institution or type of institution it considers “appropriate” (section 40(2) CFA 2014).

Under section 9 Education Act (EA) 1996, LAs must have regard to the general principle that pupils should be educated in accordance with their parents’ wishes, so far as that is compatible with “the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”. The definition of “pupil” in section 3 EA 1996 is a person aged 18 or under receiving full time education in a school setting.

Section 9 EA 1996 will be useful if you want a placement named in your child or young person’s EHC plan which does not fall in the section 38(3) CFA 2014 list – that is, an independent setting which is not a section 41 school or college. The fact that section 9 EA 1996 applies only to “pupils” left uncertainty for young people arguing that an independent placement should be named in an EHC plan. In this case, the LA argued that it could not name an independent setting for a young person and it was restricted to those settings set out in section 38(3) CFA 2014. 

The Upper Tribunal agreed that section 9 EA 1996 did not apply to young people who are not pupils, but did not agree that this meant young people could not request an independent placement be named in their EHC plan. Judge Ward questioned why the CFA 2014, which details entitlements for people with SEN up to the age of 25, would limit young people to only educational settings contained in the section 38(3) CAFA 2014 list.

Judge Ward referred to S v Worcestershire County Council (SEN) [2017] UKUT 0092 (AAC), in which Judge Mitchell had stated:

“Since this was not a case in which the section 39 [CAFA 2014] presumption in favour of a young person’s preferred placement applied, section 40(2)… required the Tribunal to specify the institution (or type of institution) it considered appropriate.”

Judge Ward explained that section 40(2) applies where no request for a specific setting is made by a parent or young person, and also where a request for a school which falls outside of section 38(3) CAFA 2014 (such as a request for an independent school or another type of institution not included in the list) is made. This is where the power to name an independent school arises, not from section 9 EA 1996.

What does this mean?

This judgment confirms that:

• When requesting a school or other institution, there is a right for parents and young people is to request a school or institution listed in section 38(3) CFA 2014.
• If such a request is made but one of the exceptions under section. 39(4) applies, the LA must name any school or other institution which the LA thinks would be “appropriate” (section 39(5) CFA 2014).
• If:
• No request is made, or
• A request for a school outside of section 38(3) is made,

the LA must name any school or other institution it thinks “appropriate” (section 40(2) CFA 2014).

• When doing this, the LA must have regard to “the views, wishes and feelings of the child and his or her parent, or the young person” (section 19 CFA 2014);
• If the child or young person is a pupil (under the meaning of section 3 EA 1996), then the LA must also have regard to the general principle in section 9 EA 1996 that pupils should be educated in accordance with the wishes of their parents.

This case is a helpful summary of the law to be applied when an independent placement is requested for a child or a young person.

The full case report for London Borough of Hillingdon v SS and others is available online.

For more information, see our sections on types of school, requesting a school when you have an EHC plan, and young people.