Schools and EHCPs - Can any School be named in Section I, and does the School have to agree?

One question we often get asked is what school a parent can request is named in Section I (placement) of an Education, Health and Care Plan (EHCP) for a child or young person (C/YP) and does that school have to agree?

First, we need to consider the different types of settings that parents can request to be named:

• Local authority maintained nursery school 
• Local authority maintained school/academy/free school (mainstream or special) 
• Non-maintained special school 
• Further education/sixth form college
• Independent school/independent specialist college which has been approved by the Secretary of State under Section 41 of the Children and Families Act 2014

A search through ‘Edubase’ - https://www.get-information-schools.service.gov.uk/ can help clarify the type of placement you are considering.

Any of the above requested to be named in Section I, for example at an Annual Review of an EHCP, must be done so, unless:

• It would be unsuitable for the C/YP’s age, ability, aptitude or SEND, i.e. the placement wouldn’t meet their needs, or;
• The C/YP attending the placement would be incompatible with:
  • The provision of efficient education of their peers whom they would be taught with, i.e. the pupils in the school. The local authority can only rely on this exception if it can show there are no reasonable steps possible to prevent this incompatibility. Or;
  • The efficient use of resources i.e. the total costs, including transport, would be greater than an alternative placement to such an extent that these are significant or disproportionate. Extra costs should be balanced against any extra benefit for the C/YP in attending the placement. 

When a request for any of the above is made to the local authority they must consult with that placement before naming in Section I, and give them 15 days to respond. This is the chance for the placement to be direct if they have any concerns about being named as, if the local authority goes on to name the setting in Section I, they must admit the C/YP.

If the setting maintains concerns once the C/YP has started with them, then it is important to look at the evidence of the peer group, provision, the C/YP’s progress etc. to challenge the setting’s view as necessary. An Annual Review, or an Emergency Review, would then be the time for discussions, including if a change of placement is required.

The above list covers a large proportion of settings, but there are also independent schools and specialist colleges not approved by the Secretary of State under Section 41 of the Children and Families Act. Parents can request one of these settings to be named in Section I, and the local authority must consider this request. Local authorities need to have regard to the general principle under Section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, unless:

• This would be incompatible with the efficient instruction and training, i.e. of the other pupils, or;
• This means unreasonable public expenditure, i.e. by comparing the total costs to the public purse, including transport, with an alternative maintained placement.

Even if none of the above exceptions apply, these settings do not have a duty to admit a C/YP. There is therefore a different responsibility on the local authority to be satisfied that the setting would admit the C/YP before naming in Section I. For example, the C/YP may already be attending the placement through private funds, or agreement of admitting the C/YP is confirmed in writing. However, if the setting does not agree to admit the C/YP, then the local authority or the SEND Tribunal, if the decision is challenged, cannot enforce this through Section I. 

The Boyes Turner Education Team is working remotely during this time and fully able to continue with new enquiries. We can help at whatever stage you are with your EHCP and can be contacted on 0118 952 7219 or via senexpertsolicitors@boyesturner.com.