Can schools refuse to be named on an Education, Health and Care Plan (EHCP)?

We often come across situations where schools do not want to be named in an EHCP. Schools can refuse to be named in an Education, Health and Care Plan (EHCP), but only in specific circumstances set out by law. To determine whether a school can refuse to be named in an EHCP, there are different criteria to consider depending on the type of school. Each type has specific legal rules and processes that apply. These include:

• 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’ can help clarify the type of placement you are considering. 

• Any of the schools listed above must be named in Section I of the EHCP if requested (for example, during an Annual Review), unless:It would be unsuitable for the child or young person’s age, ability, aptitude or SEND, i.e. the placement wouldn’t meet their needs, or;
• The child or young person 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. This is the ground schools may rely on when saying they are full/over their Pupil Admission Number (PAN)/have no spaces in that year group etc. The local authority can only rely on this exception if it can show there are no reasonable steps possible to prevent this incompatibility; this is an active duty and, in practice, difficult to evidence. The other option is;
  • 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 child or young person in attending the placement. 

When a request for any of the above is made to the local authority:

• they must consult with that placement, and
• allow them 15 days to respond. This is the chance for the placement to be direct if they have any concerns about being named (noting the above potential exemptions).

If the local authority goes on to name the setting in Section I, even if concerns have been raised through the consultation process, then that placement must admit the child or young person. Should this not happen, then parents can initially challenge this with the setting and, ultimately, the local authority potentially through a complaint/Judicial Review.

If the setting maintains concerns once the child or young has started with them, then it is important to look at the evidence of the peer group, provision, progress etc. An Annual Review, or an Emergency Review, would be the time for discussions, including if a change of placement is required.  

The above list covers a large proportion of setting types, 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 must consider parents' wishes about how their child is educated (Section 9 of the Education Act 1996), 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 child or young person. There is therefore a different responsibility on the local authority to be satisfied that the setting would admit the child or young person before naming in Section I. If the setting does not agree to admit them, then the local authority or the SEND Tribunal, if the decision is challenged, cannot enforce this through Section I.

The Boyes Turner Education Team can help if you have EHCP placement queries and can be contacted on 0118 952 7219 or via senexpertsolicitors@boyesturner.com.