The right to choose a school for your child with SEN

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Douglas Silas outlines the legal duties relating to the naming of schools or other placements in an EHC plan

General requirements

The SEN and disabilities Code of Practice (CoP) states that education, health and care (EHC) plans must record in Section I the name and type of school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person (or at least the type of school/institution to be attended by them). Under the heading: “Requests for a particular school, college or other institution”, it says that if a child’s parent or a young person makes a request for a particular nursery/school/post-16 institution, the local authority (LA) must comply with that preference and name the school/college in the EHC plan unless:

  • it would be unsuitable for the age, ability, aptitude or SEN of the child/young person, or
  • the attendance of the child/young person there would be incompatible with the efficient education of others or the efficient use of resources.

However, this only applies to: 

  • maintained nursery schools/schools
  • any form of academy/free school
  • non-maintained special schools
  • further education/sixth form colleges
  • an independent school/specialist college which has been approved by the Secretary of State. 

Does the LA have to name the preferred placement?

As is often the case with these things, the answer is both “yes” and “no”! “Yes” because, if it is one of the types of school/placements listed above, they are usually required to name it, provided it complies with the provisos also described above. But, “no” where it is not one of those schools/placements referred to above, or if it is but it falls within the exceptions. When a preference is refused, it is normally because the school or other placement is full or too expensive, although sometimes other reasons are given as well.

How do I express a preference for a school/other placement?

This is done by the child’s parent or the young person being sent a draft EHC plan after an EHC needs assessment, with Section I left blank, to allow them to express a preference for a school or other placement within 15 calendar days of receipt of the EHC plan. The CoP says that if a child’s parents or the young person request one of the schools/placements above then, provided the exceptions do not apply, it should be named. However, they may also request a place at a non-maintained early years provision, independent school, specialist college or post-16 provider and the LA must consider their request. The CoP adds that the LA is not under the same conditional duty to name the provider, but must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parent’s wishes, so long as this is compatible with the provision of efficient education, instruction and training, and does not mean unreasonable public expenditure. It also says that the LA must be sure that the independent institution will admit the child or young person before naming it in the plan, since these providers are not under a duty to admit a child or young person even if it is named in the plan.

Where a parent or young person does not make a request for a particular nursery, school or college, or does so and the request is not met, the LA must specify mainstream provision in the EHC plan unless it would be:

  • against the wishes of the parent or the young person or
  • incompatible with the efficient education of others.

Where the LA considers a particular mainstream place to be incompatible with the efficient education of others, it must demonstrate that there are no reasonable steps that a mainstream nursery, school, or post-16 institution in its areas could take to prevent incompatibility.

Does this mean a child/young person has a legal right to mainstream education?

In theory, yes. Mainstream education cannot be refused by an LA on the grounds that it is not suitable. The CoP says that an LA can only rely on the exception of incompatibility with the efficient education of others in relation to maintained nursery schools, mainstream schools/post-16 institutions, taken as a whole, if it can show that there are no “reasonable steps” it could take to prevent that incompatibility. Therefore, where a parent or young person’s request for a particular mainstream school/post-16 institution has not been met, the institution in question then becomes a possible candidate for consideration by the LA.

As the right to mainstream education is such a complex subject, I will dedicate my article in the next issue to looking at the legal duties relating to the naming of mainstream schools or other placements in an EHC plan.

About the author

Specialist SEN solicitor Douglas Silas is the Managing Director of Douglas Silas Solicitors.

 SpecialEducationalNeeds.co.uk 

 @douglassilas 

 douglassilas 

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SEN law
Douglas Silas Solicitos

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