Who applies for an EHCP if parents live in a different Local Authority to the School ?

Education Professional Asks:

  • Who do you apply to for an EHCP if parents live in a different local authority to the school their child attends?
  • Can you reapply to a new local authority if the EHCP was agreed by another authority but without funding?
  • The school this child attends is a private school. We have one child with a funded EHCP at the school. The child had the funding turned down in another authority because he attended another private school at the time. Can the LA turn funding down on these grounds?

ipsea answers

IPSEA Answers:

  • The responsible LA is the one where the parents live.  It is this LA who will be required to secure the provision in the child’s EHC Plan.
  • Responsibility for an EHC Plan would only transfer between LAs if the place where the parents lived changed – and we’re not sure from the question if this is what has happened.  It’s not possible for an LA other than the “home” authority to be responsible for securing the provision in an EHC Plan.

If the parents have moved to a different LA, then the old home LA will need to transfer the EHC plan to the new LA and must do so within 15 days of the move to the new LA.  There is a statutory process of transfer which must be followed (you can find this in Regulation 15 of the SEN and Disability Regulations 2014).

In the circumstances you’ve described, the new LA is likely to conduct an annual review of the plan sooner rather than later because the question of placement (and who should bear the costs of the fees and provision) is not straightforward – and this would the time to seek changes to the Plan.

However, the LA should have told the parents, within six weeks of becoming responsible for the Plan, when they intend to review the Plan. Where a child is attending an independent school at the choice of the parent (and the LA is not legally required to fund the place – which seems to be the case here) then the new LA will not be required to fund the independent placement either – unless amendments to the Plan are made i.e. they agree to name this school in Section I.

A “home” LA can’t refuse to assess or to issue a Plan simply because a child attends a private school – the usual statutory tests apply to the LA’s decision making regardless of where the child goes to school (or, indeed, if they even attend school or not).

However, unlike the types of schools listed in s.38(3) Children and Families Act 2014, there is no right to request that a private school be named in a Plan and it can be hard to secure it being named in a Plan unless the evidence supports the fact that it’s the only school able to meet a child’s needs (or the costs are comparable to any alternative placement being proposed).