Choosing a school or educational setting that can meet the needs of a child or young person can be a difficult task. However, the right to choose is underpinned within the legal framework of the Children and Families Act 2014 (CAFA) and the Education Act 1996, albeit subject to exceptions.

For children and young people with special educational needs (SEN) who require an Education and Health Care Plan (EHCP), the first step to choosing a school is upon receipt of the draft EHCP. In the draft, Section I should be left blank: this is because it is not meant to be drafted with a particular educational setting in mind, but rather it reflects the needs of the child or young person in a wider context. Your Local Authority (LA) must allow a minimum of 15 calendar days to provide representations on the content of the draft plan and it will then be in a position to name a school of preference in Section I unless one of the exceptions below applies.

The right to name a school or educational establishment only applies to schools listed within section 38(3) of CAFA. Wholly independent schools are not listed within that section.

Where a parent or young person asks the LA to name a certain school that is not wholly independent, the LA has a duty to consult with that school. There is also a duty on the LA to name the school in the final EHCP unless one of the following applies:

1.     The school is unsuitable for the needs of the child or young person

2.     To name the school would be incompatible with:

a)       The provision of efficient education for others

b)      The provision of efficient use of resources.

The obligation is on the LA to show that one or more of the above applies. 

Note that the school being full is not one of the reasons the LA can rely on to lawfully refuse to name a parent’s preferred choice of school in an EHCP. Neither is it a reason to state that the school did not want to be named. If a school purports to be full, the LA must still show how the admittance of the child or young person would affect the provision of efficient education of others or efficient use of resources. Parents are able to name a second school as a ‘fallback’ option, to which their LA will apply the same tests.

Parents do not have the rights set out above if they or their children want to attend a wholly independent school. However, representations can still be made and paragraph 9.84 of the SEND Code of Practice states that the LA must consider those representations.

Right to mainstream education

There is also the right to mainstream education. This will be particularly important where the LA wants to name a special school, but the preference of the parents or young person is to be educated in a mainstream setting.

In fact, the LA has a duty to ensure that a child or young person with SEN has a mainstream education unless this is incompatible with:

a)   The views and wishes of the parents or young person

b)    The provision of efficient education for others.

The LA cannot deny mainstream education because a particular mainstream school cannot meet the needs of a child or young person, or because the school says it is full. Instead, the LA is under an obligation to make mainstream schooling suitable by introducing appropriate provisions. In order to rely on point b) above, the LA must show that there are no ‘reasonable steps’ that it could take to prevent the provision of efficient education for others. What may constitute ‘reasonable steps’ is reflected in paragraph 9.91 of the SEND Code of Practice but this is not an exhaustive list. The presumption is that with the right support and provisions, mainstream education can be adapted to include children with SEN.

Other considerations

When naming a school, the SEND Code of Practice must have regard to the views, wishes and feelings of the child, parent or young person. There is a general principle that children should be educated in accordance with the wishes of their parents, so far as compatible with efficient instruction and training, as well as avoiding unreasonable public expenditure.

Resolving a dispute

If your preferred school is not named when you receive the final EHCP, you have the right of appeal to the Special Education Need and Disability Tribunal (SEND Tribunal). Your LA must notify you of your right to appeal. It should also draw your attention to the fact that you must obtain a mediation certificate if you want to lodge an appeal, although this does not apply if the appeal is regarding Section I only. If your appeal relates to any other appealable section - such as Section B or Section F - in addition to Section I, you must obtain a mediation certificate.

Mediation is a process whereby an independent third party with knowledge of the area concerned hears the views of both parties. The mediator aims to help communication and facilitate an agreement. If you wish to participate, your LA will be responsible for arranging the mediation. The process can be beneficial and there is scope to change sections of the plan in mediation on which the SEND Tribunal would not ordinarily adjudicate. If an agreement is reached, it is put in writing (the Mediation Agreement) and is legally enforceable. If the Mediation Agreement relates to the same issues as would have arisen from the right of appeal to the SEND Tribunal, the LA must comply with the Mediation Agreement and timescales in the same way as if it were a Tribunal Order. If the Mediation Agreement related to matters that did not carry the right of appeal (such as section A), the LA must comply within two weeks.

If mediation is successful, the appeal would not be required. If unsuccessful, the mediator will provide a mediation certificate within three working days. If you do not wish to engage in mediation, a certificate is required from the mediator to confirm that you have been offered mediation but you have declined (except for Section I only appeals as above).

An appeal to the SEND tribunal must be lodged within two months of the date of the letter confirming your right of appeal or one month from the date of the mediation certificate, whichever is the latter.

If you require assistance with an appeal to the SEND Tribunal, please contact Madeleine Oakley on 01245 453805 or madeleine.oakley@birkettlong.co.uk