04/02/2019
ARTICLE: Seeking a Special School for a child with an Education, Health and Care Plan
Parents' rights to the school of preference
As the transfer process to secondary school in September 2017 for children with Education, Health and Care (EHC) Plans begins in earnest, parents and carers across the country will be invited to express preferences for schools. Whilst many parents secure their school of preference, increasing numbers are being denied special school placements. This is often because such schools are said to be "full".
The reality is that local authorities have insufficient specialist places to be able to cope with the demand. This is a legacy of the "inclusion agenda" and in most local authorities demand for specialist provision far outstrips what is available. We are often asked what rights parents and carers have where their school of preference has been refused.
What is my entitlement?
Under s 38(2)(b)(ii) of the Children and Families Act 2014, when the Local Authority issues a draft EHC Plan to reflect the transfer to secondary school, parents have the right to express a preference for a 'school or other institution'. These include the following types of school:
(a) a maintained school;
(b) a maintained nursery school;
(c) an Academy;
(d) an institution within the further education sector in England;
(e) a non-maintained special school;
(f) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).
This is often referred to as a "statutory preference".
In addition, parents can also make representations under s 9 Education Act 1996 to name any other school, for example an independent school, not covered within the "statutory preference".
Once you have expressed your preference or made representations for a school, the local authority is then required to consult with the governing body or responsible body/person for the school. A response must be provided within 15 calendar days. You are entitled to receive a copy of the response to the consultation.
Can the Local Authority refuse to name my preferred school?
Where a statutory preference has been made, the Local Authority can only refuse to name the school if it can show one or more of the following has been met:
(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
(b) the attendance of the child or young person at the requested school or other institution would be incompatible with-
(i) the provision of efficient education for others, or
(ii) the efficient use of resources.
Where representations are made under s 9 Education Act 1996, the Local Authority is not obliged to name the school in the same way and could decline on the basis that it would not be compatible with the provision of efficient instruction and training and/or the avoidance of unreasonable public expenditure.
What if I refuse to express a preference?
If you decline to express a preference for a school in section I, then the Local Authority is able to name a school that it considers to be suitable or it can describe a type of school. It does not require your consent to do this.
I have been told the school is full? Is that sufficient?
Put simply, being "full" is not a sufficient reason why the school of preference should not be named. The local authority would be required to demonstrate that your child's admission would invoke one of the grounds for refusing a preference. "Compelling" evidence is needed in this respect.
I have been told my child's need can be met in mainstream
Again, this is not a reason to refuse the preference for a special school. The first question the local authority must address is why it is not naming the school of preference. Thus, if you have expressed a preference for a special school, the local authority must say why it is not prepared to name it against the statutory criterion.
The school has said that it is taking too many children with special educational needs?
This reason would potentially be discriminatory as admission cannot be refused solely on the basis that a child has special educational needs or a disability. The school would have to demonstrate to the Local Authority that one of the statutory reasons for refusing the preference applies. Evidence would be needed to justify any refusal.
Can I challenge the decision?
Yes, you can appeal to the First Tier Tribunal (Special Educational Needs and Disability) where the local authority refuses to name your preferred school in Section I.
If you are having difficulties securing your school of preference or simply wish to seek initial advice contact us at advice@sen4you.co.uk or on 01908 889082. You can also visit our website - www.sen4you.co.uk
