We're appealing against the school named in our child’s EHC plan and we’ve been told our child must attend the school that’s named in the plan in the meantime. Is that correct? Expand No, this is wrong. When a child or a young person has an EHC plan naming a setting (other than a private, fee paying school), then the setting has a legal duty to admit them (section 43 CFA 2014). Sometimes local authorities (LAs) believe this duty means that the child or young person must be added to the school roll as soon as the school is named in a plan. Regulation 8(1) of the The School Attendance (Pupil Registration) (England) Regulations 2024 states that “The proprietor of a school must ensure that the name of each pupil at the school is entered in the school’s admission register on the pupil’s starting day, before or at the beginning of the first school session on that day”. Regulation 3 defines ‘starting day’ as the first day the pupil attends, or the day it is agreed they will start to attend. The regulations say it’s the "person with control of the pupil's attendance" who has to agree the day that they will start attending the school. In most cases this is their parent or the pupil themselves if they will be over compulsory school age by the time they start attending the school, not the LA. Therefore your child must only be added to the new school roll on the date they begin to attend or the date that you have agreed they will start to attend. If you have been told your child must attend the named school but do not agree with the naming of that school, you should make this clear and that your child’s name must not be added to the admission register as you do not agree to it. Please note: If at any point the LA says it will send you an Attendance Order, or you receive one, you can check if you qualify for legal aid and speak with a criminal solicitor who is familiar with education cases, and ask them if to find out if you would qualify for can apply for criminal legal aid. You could also contact Citizens Advice. We suggest you take advice on how education may be provided to your child while your disagreement with the LA about which school should be named in their EHC plan is resolved and who would be responsible for this. If your child is of compulsory school age, depending on your specific circumstances, it could be your responsibility to secure their education during this time.
If the SEND Tribunal orders a school be named in an EHC plan, can that setting refuse to admit my child? Expand For most types of schools or institutions, if they are named in an EHC plan they have a legal duty to admit your child or young person under section 43 Children and Families Act 2014. This duty applies to: 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, and a section 41 school. Even if the setting disagrees about being named in an EHC plan (including if it is pursuing a challenge against the LA through the courts or via the Secretary of State) unless and until the EHC plan is amended, the duty to admit applies (see, for example, N v Governors of a School [2014] EWHC 1238 (Admin)). Any setting that refuses to admit a child or young person whose EHC plan names that setting, will be acting unlawfully and could be challenged by judicial review. The only time a setting does not have a legal duty to admit your child or young person is if the school is an independent one. The SEND Tribunal cannot order an independent setting to be named without an offer of a place from the school.
Can the SEND Tribunal order a school to be named even if the school hasn’t agreed to being named? Expand This depends on the type of setting. The SEND Tribunal has no power to name a wholly independent school against its wishes because there is no duty in the Children and Families Act 2014 on such schools to admit a child or young person where they are named in section I of an EHC plan. If you want to ask for an independent setting to be named in an EHC plan, you will need the setting to have offered a place and you will need to send this consent or offer of a place with your appeal form. If you are asking for: 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, or a section 41 school, then proof of consent to be named or an offer of a place is not required, but you will have to tell the school that you are asking the SEND Tribunal to name it, and submit that notification letter or email to the SEND Tribunal with your appeal paperwork.
My local authority has named a school I don’t agree with and I want to appeal section I of my child’s EHC plan. What does a local authority have to consider when naming a school in an EHC plan? Expand You have the conditional right to ask that: 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, or a section 41 school, is named in your child’s EHC plan. Your local authority (LA) can only refuse this request if there is a lawful reason to do so. These reasons are: the setting is unsuitable for the age, aptitude, ability or special educational needs of your child, or your child’s attendance there would be incompatible with the: efficient education of others, or efficient use of resources. You can learn more about these reasons on our choosing a school/ college pages, and find these reasons in section 39(4) of the Children and Families Act 2014. In an appeal, if the LA says it has not, and will not, name the setting you requested for one of these reasons, you should use evidence to show the LA and SEND Tribunal why the reason does not apply. If your LA decides that one of these reasons applies, then it must name an appropriate setting and type, or simply an appropriate type of setting, in the EHC plan. This is a legal requirement found in section 39(5) of the Children and Families Act 2014. Therefore if you wish to appeal the naming of the LA’s choice of school, you will want to show with evidence why that setting or the type is not appropriate for your child. When challenging the LA's choice of school, your arguments should not focus on whether attendance at the LA's choice would be an inefficient use of resources or education of others for example because the above reasons do not apply to the LA's choice. You will want to demonstrate why that setting is not appropriate, for example by highlighting evidence from its prospectus and SEN information report that show that it would not be an appropriate setting, and why. This means, in this type of appeal you may be making two arguments: that your choice of setting should be named in the EHC plan because no lawful reason for refusing it applies and the LA's choice of setting is inappropriate anyway. If the school or college you would like named is wholly independent (in other words, its not one of the types in listed above), please see our information on asking for an independent nursery school or college. For more information on appeals about the school or other setting named in an EHC plan, see our downloadable fact sheet.
I want to appeal section I (placement) of my child’s EHC plan but I have not yet found a particular school that I want to ask be named. What should I do? Expand In any case where the appeal concerns section I, you should include relevant information about the school or institution you want to be named with the appeal. This should include the Ofsted report, any prospectus, any reports or assessments about your child which the school or other institution has produced, and details of the costs of the placement. If you want your appeal to include section I (placement) but have not found a school you want to ask the SEND Tribunal to name, then describe the type of setting you would prefer in section I on your appeal form, such as ‘mainstream’ or ‘special’. You can say you are currently researching options or waiting for responses from settings. The SEND Tribunal, when it registers your case, will probably direct you to provide details of the specific institution that you wish the SEND Tribunal to name by a particular date. If you find a specific setting you would like named which matches the type of setting you described on the appeal form, you don’t need to amend your grounds of appeal. You should: tell the LA and SEND Tribunal of this via email, and enclose the offer of a place if it’s a wholly independent school, and check the directions in case the SEND Tribunal imposed a deadline for doing so and for what other information about the school you are required to submit. If you find a particular setting which is a different type to that described on the appeal form, for example in the description box you indicated you wanted mainstream and are now seeking a special school, a Request for Changes form (SEND7) asking to amend the grounds of appeal will be required.
When can a school remove a pupil's name from the school's register? Expand A school can only remove a child’s name from its admission register in certain situations. These are set out in regulation 9 of The School Attendance (Pupil Registration) (England) Regulations 2024. This means that a school can only remove the name of a child from its register when one of these situations applies, as explained in paragraph 218 of the statutory guidance Working together to improve school attendance, 2024. Here is a summary table describing some situations and whether the name of a child of compulsory school age can be removed from the register: If Then A child’s EHC plan no longer names their current mainstream school, and they have not been registered at another school. This could be because their EHC plan has been amended and now names: only a type of school, or a different school which the child has not been registered at the school cannot remove their name from its register on this basis. However, this may impact the delivery of the special educational provision set out in the EHC plan and the payment of school fees (if applicable). This will depend on your individual circumstances. Please take advice if you need support on this. A child has been permanently excluded from their school the school must remove their name from its register on this basis. A parent has written to their child’s mainstream school to explain that their child will be receiving elective home education from a particular day (and there is no school attendance order naming that school) the school must remove their name from its register on this basis. A child attended an independent school but has left and is no longer a pupil of that school the independent school must remove their name from its register on this basis. A child is attending a special school, named in their EHC plan, but the parent wants to electively home educate them the special school cannot remove their name from its register unless the local authority has agreed to it (or the Secretary of State has agreed, if the local authority has refused). Please get support if you would like to discuss your child's situation.
After appealing sections B, F, and I of my child’s EHC plan, my local authority agreed to make all the changes I wanted to sections B and F. Can I continue with my appeal as I am still unhappy about placement? Expand Yes. Please see below to learn more about what will need to happen next, and what options are available to you. Sections B and F As you and your local authority (LA) have reached agreement on these sections (special educational needs and provision), the various changes which have been agreed should be accurately and fully recorded in the working document. Please check that all the changes you wished to see are reflected in that document. If not, go back to your LA with another version of the working document with any missing amendments now included. Once you and the LA are happy the working document is complete with all the agreed changes, make that your final version of the document. Section I You can continue with the remainder of your appeal. For example, if the LA refused to name the particular school you requested for your child, you can still ask the SEND Tribunal to look at the evidence and decide what school is to be named. The SEND Tribunal has confirmed that if section I becomes the only remaining issue during the course of an appeal, the parties can ask for a Judicial Alternative Dispute Resolution (JADR) hearing. JADR involves a SEND Tribunal judge confidentially discussing the appeal with you and the LA, highlighting to both parties the strengths and weaknesses of their arguments, and seeing if agreement can be reached. Please see our further information on what JADR is, and what to expect from a JADR hearing. If the SEND Tribunal thinks there is a possibility of an agreement being reached it is more likely to agree to your request for JADR. The SEND Tribunal is also keen to manage its volume of appeals and has seen that matters are often resolved in these types of hearings. You might want to ask for JADR if, for example, your hearing date is some time away because if agreement is reached you won’t need to go to a full hearing. If you want to make a request for JADR having agreed Sections B and F, you should use the Request for Change form to do this and: explain on the form that the parties have reached agreement on all remaining issues except for Section I attach the final agreed version of the working document as explained above, to show the SEND Tribunal what agreement the parties have reached on Sections B and F, and ask for a JADR hearing in respect of the remaining issue, Section I. The SEND Tribunal is likely to allow your request for JADR if it is happy with the changes the parties have agreed regarding Sections B and F and it sees there is a possibility of an agreement being reached regarding Section I. It is much less likely to agree to your request if it considers Sections B and F should not be specified in the manner agreed between the parties, or if there is a not possibility of an agreement being reached regarding Section I at that time. If a JADR hearing goes ahead and agreement is reached, the judge attending the JADR hearing will draft a consent order which will be sent to both you and the LA. This should provide an order in respect of: Sections B and F as set out in the final working document provided to the SEND Tribunal when the JADR request was made, as long as the SEND Tribunal is happy with the changes agreed between the parties, and the agreement reached on Section I in the JADR hearing. Once this consent order is issued, it is legally binding and the LA will have to meet specific deadlines set out in law. JADR is a voluntary process however, so if you would prefer to wait until your hearing date and not take part in such a process, that’s fine you can. If you are not sure about whether to ask for JADR, or want more advice on JADR you can book an appointment to speak with us.
I'm appealing because I'd like an independent school named in section I of my child’s EHCP. I'd like to send my child to the school and pay the fees whilst I wait for the appeal. If successful, will the SEND Tribunal order my LA to pay me back? Expand Generally speaking, no. With long waits for SEND Tribunal hearings, it is understandable you may wish to do this, however it is important your decision is made with the knowledge the SEND Tribunal is highly unlikely to order your LA to refund you for this type of cost, even if your appeal is successful. Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not generally ended with a direction for one party to pay another’s costs. A party can apply for something called a “costs order”, but the circumstances under which the SEND Tribunal can make one are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case. Costs orders are therefore the exception rather than the rule and in our experience are rare. Where the SEND Tribunal does see fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. There is currently no case law to tell us whether costs “incidental to” a SEND Tribunal appeal could include the type of costs you have asked about. However, existing case law does tell us that when deciding whether to order costs, the SEND Tribunal can only consider conduct during the appeal itself and not any conduct which occurred before the appeal was registered. This means the simple fact your LA decided not to name the school in the EHC plan in first place would not warrant it being ordered to pay you back, even if the SEND Tribunal decides this was the wrong decision and orders the school to be named. Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed? No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.