Parent Asks:

My daughter is in her 2nd year of placement, year 11, and wants to stay for a catch-up in year 12.  Her school agrees she should remain rather than attend mainstream college. Can the LA remove an Independent Specialist Provision in Section I of an EHCP?

IPSEA Answers:

Any time that an EHC plan is being reviewed, the LA can choose to make changes to any section of the plan – including the placement named in section I. The LA must give you the opportunity to submit your views and make a request for a placement.

There are specific types of placements you can request, which are 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).

If you request one of these types of placement, 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.

As you can see, one of the types you can request is an institution approved under s41 of the CAFA. These are independent specialist schools which have opted into the CAFA for the purposes of being named in an EHC plan. If your choice of school is s41 approved, then the LA could only refuse using one of the reasons above.

However, if your school is an independent school which has not signed up under s41 then you do not have the same rights. You can make representations to the LA for the placement, and the LA must consider these, as well as having regard for your views, wishes and feelings (section 19 CAFA). The LA is not restricted to only naming those schools in s38(3) CAFA and can name an independent school where appropriate.You can find out whether your school is s41 approved on the government website:https://get-information-schools.service.gov.uk/Search?SelectedTab=Establishments

As your daughter is in a phase transfer year, the annual review process must be concluded by 31^st March. If the LA does not name your choice of school, you would have the right to mediation and appeal to the SEND Tribunal. You may find the following information useful:

https://www.ipsea.org.uk/choosing-a-schoolcollege-with-an-ehc-plan

https://www.ipsea.org.uk/appealing-to-the-send-tribunal

https://www.ipsea.org.uk/Handlers/Download.ashx?IDMF=b48b67c4-c457-4db2-8da4-2d485ee09d4d