Parent Asks:

Our son (Y10) has an EHCP naming a local independent specialist school that has gone into liquidation. We are trying to find an alternative specialist school for him (when all schools reopen post-Coronavirus); where do we stand with his EHCP for a different school that's likely to be 2 hours' drive away.

Ask IPSEA:

From what you have said we are assuming that the school you have in mind is a residential school and therefore likely to be either a wholly independent school, a non-maintained special school or a section 41 school, as opposed to a local authority maintained school or academy. The answer to your question will depend on whether it is a wholly independent school, a non-maintained special school or a section 41 school.  If you are not sure what type of school you’re asking for, check on the government website Get information about schools - GOV.UK

If it is a non-maintained special school or a section 41 school, you have a right to request it because it is in the list at section 38(3) of the Children and Families Act (“CAFA”). The only reason the local authority can refuse the request is if:

• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person; or
• The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
• The attendance of the child or young person would be incompatible with the efficient use of resources.

This is set out in section 39(4) CAFA 2014. The LA has to prove that at least one of these conditions applies in order to dislodge the parent or young person’s preference.

If the school is a wholly independent school, you are still able to make representations for it but you do not have the same condition right to request it. The LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 Education Act 1996).

The onus will be on you to prove that none of the schools the LA is offering can meet your child’s needs, orthat the cost of the placement will not constitute unreasonable public expenditure.

Public expenditure includes all the costs to the public purse of the placement not just those incurred by the LA education budget. This can include social care costs, health costs and any other costs incurred by any public body.

If you cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent setting proposed is an excellent school and/or better suited to your child’s needs than the school the LA has in mind. LAs are not bound to offer a child or young person with SEN ‘the best’ provision to meet their needs – only what is necessary to meet their needs.

In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet the child or young person’s needs. Where a parent or young person is requesting an independent setting, they will generally need evidence from a professional as to why the independent setting is the only school or college which can meet the child or young person’s needs.

Additionally, there must be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

The courts have considered situations in which an independent setting should be named in an EHC plan, and given examples of when a setting would be considered an unreasonable public expenditure. You can read about these cases in our case law section.