Can you still appeal Section I if your parental choice is named with conditions?

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Can you still appeal Section I if your parental choice is named with conditions?

Parent Asks:

The LA has written the following wording in Section I:

The parents/carers of xxx expressed a preference for her to attend Parental choice. The Local Authority accepts that this school would be suitable.  However, it is not the nearest appropriate school. The Local Authority considers that it would be incompatible with the efficient use of its resources if it had to provide or fund home-to-school transport to this school.  That being so, the Local Authority, having taken into account paragraph 9.214 of the SEND Code of Practice: 0-25 years, has agreed to name the school on the express condition that xxxx parents/carers accept and continue to accept liability for arranging and funding home to school transport.  If they are no longer willing or able to do so for any reason, then xxx would be expected to transfer to the nearest suitable school, namely LA choice, subject to consultation."

I disagree that the LA choice of school could meet her needs, and that's why I fought to get her into our choice of school, but I was forced to accept this condition and am now struggling with the cost of getting her there every day.

IPSEA Answers:

You can certainly appeal section I on the basis of a condition written into it regarding provision of transport. The Tribunal could order that your choice of school is named without conditions.

If the school you requested is one of the types set out in section 38(3) of the Children and Families Act 2014 (“CAFA”):

(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).

Then the LA can only refuse to name your choice of school if one of the reasons set out in section 39(4) CAFA applies:

(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 the LA uses the efficient use of resources argument, it is not enough to state that there would be some additional cost – the LA must balance the statutory weight given to the parent’s request against the extra cost in deciding whether the extra cost is ‘inefficient’. If the only additional cost is the transport, then it is unlikely to be enough to be considered an inefficient use of resources.

It is also important to note that it is only possible to carry out a cost comparison of placements if there are two or more suitable placements available. Therefore, if you can provide evidence that the LA’s placement would not be suitable, then the cost is irrelevant, and your choice of school must be named.

You can find more information about appealing section I of a plan in IPSEA’s factsheet here: