Naming Independent Special schools in a new EHCP: All about Section 41

In the new Children and Families Act 2014, parents will be able to request a placement (rather than express a preference as it is now) at SOME independent special schools when their child has an Education, Health and Care Plan.

There was much excitement about this possibility of being able to name ANY independent special school, rather than just the schools under the control of the local council. Free schools, Academies and non-maintained schools come under this as well. But it didn't quite turn out like this.

Some background...

Independent and non-maintained schools weren't included in the initial Green Paper in 2011, only Academies and Free Schools were. So if you wanted to choose either of those for your child in the new system, you could do so on exactly the same basis as you can for a maintained school. The local authority would be under the same (qualified) duty to name the school in an EHC plan and the school would have no option but to make a place available under the "duty to admit"

The non-maintained and independent special school sectors liked the sound of this and by the time the draft legislation was published in September 2012, one of the bodies representing the NMISS, the National Association of Independent Schools and Non-Maintained Special Schools, had negotiated an agreement for non-maintained schools, but not independent ones, to be included in the arrangements.

The other representative body, the Independent Schools Council whose Special Schools section is chaired by the inspirational Barry Huggett, Head Teacher of More House School in Surrey had not yet reached an agreement on the issue with the DfE.

On top of this, the Department had a problem with independent special schools, because it did not feel there was any clear definition as to what an independent special school actually was.  I know, I know, if it walks like a duck and quacks like a duck...  but of course, when you are writing law, you need to be able to have clear definitions.

Anyway, following the Children & Families Bill's pre-legislative scrutiny and further discussions with both NMISS and the ISC,  what is now Section 41 (below) was introduced.

Click to enlarge

And so we're back to the parents being excited bit. 

But wait a minute - what's that green circle bit on the picture above about?

Why, that's my green circle, highlighting clause 3 of section 41. It says:

The Secretary of State may approve an institution under subsection (1) only if its proprietor consents.

In other words, to qualify for inclusion, each non-maintained or independent special school must be 'approved' by the Secretary of State for Education. However, schools are not compelled to be approved and can opt out, should they wish.

But why would they not wish to be approved, you might ask? It would make the placement process for families much easier if a non-maintained or independent school was considered on the same basis as a maintained school.

Ah.... but remember the "duty to admit" part, about how a school cannot refuse to take a pupil where a parent has named it in an EHCP and a local authority agrees that it is a suitable school?

This means that any independent special school approved by the Secretary of State would be that little bit.. well quite a big bit, less independent when it came to controlling its intake. And this is not something that many independent schools are prepared to accept. In fact, some are so unhappy, that they have taken the decision, or are considering taking the decision, NOT to seek approval. This would leave them in the same position as they are now with parents having no right to name them on an EHCP. They could be expressed as a 'preference', as they are now, but that's all.

A Department for Education spokesman explained it thus:

"The Government’s position was (and still is) that the three elements – right to request; qualified duty on the LA; and duty on the school to admit – have to go together.  We can’t have a position where parents are told they can ask for any of a selection of schools on the same basis and local authorities are then under a duty to meet that request (subject to the conditions), but then the school can refuse admission.  It would mean that we were misleading parents to say they could ask for schools on the same basis and putting local authorities in an impossible legal position (i.e under a duty to secure the provision, but unable to do so if the school refuses to admit)."

You can see that they have a point.

But so do those independent schools whose very success relies on being able to admit only those students who have a profile that fits the school's expertise.

And more importantly, it's not good for the child to be in the wrong special school any more than being in an inappropriate mainstream school is.

However, if the parents' chosen school is cheaper than, say, the independent special school that's actually the most appropriate school (maybe the parents haven't been well informed - guess what, it happens!), I'm not sure you'll hear the LA putting up a fight. After all, it's given the parents what they want - aren't they great?

The result would be a nightmare for everyone, the child included.

The local authority would still be under a duty to consult the school before naming it and, in our 'new tomorrow', the LA might decide that the school would not be appropriate for the needs of the child (as per section 39(4)(a)) and hence not agree to name it on the Education Health and Care Plan placement.

But it does leave the "independent" school at the mercy of the whims of the local authority - and it rides a horse and cart through the whole notion of independence for the school.

So where does this leave parents?

I do not think there are any 'villains' in this piece. Both Department for Education and the independent school representatives are right.

'Independent' should mean the ability to choose their intake as well as their curriculum (as far as they can these days!) while the DfE must stick to what it says in the Act.

Schools cannot be forced to apply to go on to the approved list. So, if they choose to retain their full independence and, along with it, control of their admissions policy, they will be in exactly the same position as now.

So for parents, the situation can be explained thus:

For an independent or non-maintained school that has been approved by the Secretary of State:

  • They will be on the same footing as maintained schools and academies and free schools.
  • Local authorities will make the decision on which school to specify in a plan, taking account of the parent or young person’s preference the views of the school.
  • They must specify the parent or young person’s preference unless it would not be suitable for the child’s age, ability, aptitude or special educational need; or it would be incompatible with the efficient education of other children; or it would not be an efficient use of resources.
  • If a local authority names a school in a plan it must admit the child.

For an independent or non-maintained school that has not requested or received approval by the Secretary of State:

  • Parents will be able to make representations to the LA that they want the school named in the plan
  • A local authority will not be under the same duty to meet the request as for 'approved' schools.
  • But LAs do have the general duty under section 9 of the Education Act 1996 that children should be educated in accordance with parents’ wishes, as well as the new duties under section 19 of the new Act
  • The SEND Tribunal will still be able to require the naming of an independent school not on the approved list.

Hope that's all as clear as day now. I'd love to hear what you think though... please tell me in the comments below.

** Update: For a list of current Section 41 schools ie, independent special schools that you can list as a placement under the same terms as a maintained school, see this page on the site

Tania Tirraoro


  1. Lisa Thomas

    So when all said and done, ‘The SEND Tribunal will still be able to require the naming of an independent school not on the approved list.?’

    But if IS did not put themselves on the approved list, either they are not inclusive and not worth even looking at, or they are just playing (independent control games) hide and seek – being selectively inclusive! bKnown as exclusive!

    Would the ruling put the one child in the school? Or put the school on the approved list for good?

    Approach to legal representation at IS tribunal could be Iinteresting/expensive I suspect.

  2. vaguest

    Placement at some independent special schools (I have a few excellent, highly specialised Asperger’s/ ASD placements in mind), even if they did choose to receive approval by the Secretary of State, would, I suspect, be in the same position as now with regard to the “efficient use of resources” clause, which is actually the bit that LAs tend to rely on now, so although there would be slightly more in the favour of the parents, LAs will still be able to fight costly placements just as they do now. I am seriously not looking forward to the next annual review. I face a transition to post-16, with a child who has turned 16 (his birthday is early in the school year), under a statement which the LA may choose to cease to maintain or to transfer to the an ECHP, or even to leave as a statement if they wish! I don’t know if I will have to or even be able to appeal their decision, whether he will have to fight this himself (sooooo not going to happen!) or (here’s a thought), if he must make his own appeal, will he qualify for legal aid? Since he will be 16, with no income, he might qualify, yes? Questions, questions….and now this to add to the confusion 🙁!

  3. Tania. Now I am confused. Whilst I full understand why an independent school would not wish to give up its independence on admissions and so would withhold its consent for being included (and which seems to me no more or less than they should be entitled to do, accepting the consequences) I am not at all sure why the Secretary of State would have any interest in withholding inclusion from any school that the DfE has already recognised as a school, whether independent or Non-maintained.

    I suppose what I am not clear about is whether this inclusion is an opt-in or an opt-out process. Is it the case, under the clauses you quote, that all independent and non-maintained special schools will have to “opt-in” by applying formally to the Secretary of State so to do or that only those schools wishing to “opt-out” will need to do so formally? If it is the latter, then I am not sure that this is much of a problem for those (majority of?) such schools that do not wish to opt-out, nor for the parents who wish their children to attend them.

    Are you able to help with clarification? Many thanks. So glad you are keeping an eye on all this!

  4. Hello Tania – thanks for this piece. Please note, Non-maintained special schools do NOT have to apply via s41 to become Secretary of State Approved – they are already, separately named in the Act as a group of schools that parents can express a preference for. As you note, the majority of NASS members are positive about gaining Approval. It is an opt in process for independent special schools – schools must apply by 31st May. Schools which have a current Ofsted judgement of inadequate will not be allowed to join the list. The school itself is Approved, rather than the admission of a single child or young person.

    In terms of use of resources, LAs will need to look at the costs to the wider public purse, not just the education budget. The recent WA Vs Warrington Tribunal Appeal judgement confirmed this.

  5. Keira DeNiro

    Thanks Tania! I’ve found this just in time. My LA claim that the NMS school I named on my daughter’s EHCP last week is full, even though I visited the school 9 days previously and was informed there were 8 places available – looks like another smoke and mirrors exercise to go through :/

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