Schools and other institutions use various descriptors, e.g. infants, junior, primary, secondary, but in order to determine which parts of SEN and disability law apply to a particular school, you will need to know which category the school falls into.

Basic division between types of schools

The basic division between types of school and other institutions (including post-16 institutions and early years providers) is between:

• those controlled by a local authority (“LA”) – referred to as maintained – shorthand for “maintained by a local authority”;
• those controlled by the Secretary of State – referred to generically as Academies;
• those which are neither of the above, which are usually controlled by private contracts between the parties.

“Maintained” and “Mainstream” – don’t get confused

The word “Maintained” defines a school/institution by reference to how it is controlled, e.g. most commonly, a school maintained by a local authority (which may happen also to be a mainstream school but it could also be a special school).

The word “Mainstream” defines a school/institution not by who controls it but by its provision, and this generally refers to provision other than special schools, hospital schools, alternative provision and the like (examined in more detail below).

Maintained schools or other institutions

Educational institutions controlled and funded (maintained) by local authorities (sometimes referred to as “state” schools or institutions) can include:

• mainstream schools (such as mainstream community schools, voluntary-aided, trust, foundation, or grammar schools);
• nurseries (free-standing or part of a community primary school),
• Special schools,
• Alternative provision (including Pupil Referral Units); and
• Post-16 institutions (Further Education colleges and sixth form colleges).

These are regulated by statute, regulations and statutory guidance.

A Pupil Referral Unit is for children who need to be educated out of school, often because they have been excluded. They have the same legal status as schools in some respects but do not have to teach the national curriculum.

Academies

These are schools controlled and funded directly by the Secretary of State for Education and include:

• Academies,
• Free schools,
• UTC Schools,
• Studio schools,
• Academy special schools;
• alternative provision Academies; and
• Academy boarding schools.

These are not maintained or controlled by LAs. They are subject to a contract between the Academy trust (owner) and the Secretary of State known as the “Funding Agreement”. Much (but not all) of the law and guidance for maintained schools applies to them as do many of the regulations for independent schools. They are subject to the same inspections as state schools by Ofsted.

Schools or institutions not controlled by either an LA or the Secretary of State

All of the schools referred to above are controlled by the state in some way, i.e. maintained schools which are controlled by LAs or Academies which are controlled by the Secretary of State. These comprise the majority of schools and other settings in England.

However there are also many schools which are not so controlled and which are broadly referred to as independent schools. It is worth understanding the different types as these schools often have provision available for children and young people with SEN.

These are:

• Independent schools – these are mostly controlled by charities (and therefore, “not for profit”) but there are some private “for-profit” owners. Due to their independence their provision is not standardised across the sector as for the state sector. They include prep schools, public schools, and private nurseries (early years provision). Some private schools are registered as “specially organised to make provision with pupils for SEN”. However, for legal purposes independent schools are neither special nor mainstream, but all simply “independent”.

• Non-maintained special schools – all charitable foundations and “not for profit”. This type of school will take a mixture of children and young people with and without Plans (including during the transition period children with statements) but in practice almost 100% of their pupils are publicly funded through EHC plans or statements;

• Section 41 schools – These are independent special schools which have been approved by the Secretary of State under section 41 of the Children and Families Act (“CAFA”) 2014 as schools which a parent or young person can request to be named in an EHC plan. This means parents or young people have a right to request this type of school is named in an EHC plan in the same way they can request a maintained school.

• Private post-16 institutions. These may also opt for section 41 status. 

Mainstream or Special

Whether a school is mainstream or special is a separate consideration. A special school is a school which is “specially organised to make special educational provision for pupils with SEN” (section 337 of the Education Act 1996).

A mainstream school is a school which is not a special school and is either a maintained school or an Academy (section 83 CAFA 2014). (Independent schools are not classed as mainstream schools.)

How can I find out about a particular school?

Department for Education: The Department for Education website has a database which you can search by the name of the school, the location, or the local authority. It lists information about the type of school and other basic details such as the age of pupils and the name of the head teacher.

Ofsted: Inspection reports, obtainable from the Ofsted website, also give a brief outline of the type and characteristics of educational institutions.