Parent Asks:

We are being bullied into considering a special school for my child. My child is 8.5 years old, nonverbal and on the spectrum. we preferred a mainstream setting as he has moved countries (he came to the UK 8 months ago). he has an EHCP with level 5 funding. The school feels he cannot survive in the mainstream, but he has a 1:1. in special schools that we visited, there are six kids with one teacher. the local council said the school could conduct an early annual review and say they can't meet needs.

Will this mean my child will be off-rolled and out of education or forced into special education?

IPSEA Answers:

As a parent, you have a right to request specific types of schools are named in your child’s EHCP. These are set out in section 38(3) of the Children and Families Act 2014 (“CAFA”) as follows:

(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 placements is named in the EHCP, then the LA can only refuse if one of the following reasons applies as set out in s39(4) CAFA:

(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.

Before making a decision, the LA must consult with the placement. However, the LA makes the final decision to name a placement, and, if a placement is named in an EHCP, then it must admit the child (s43 CAFA).

In addition to this, there is a presumption towards a mainstream education within the CAFA and mainstream education can never be unsuitable (s33 CAFA). A child with an EHC plan must therefore attend mainstream unless the parent does not want them to or the attendance of the child in mainstream would be incompatible with the provision of efficient education of others and there are no reasonable steps that can be taken to overcome the incompatibility. This is a high hurdle to meet as generally there are steps that can be taken. There are examples of reasonable steps in paragraph 9.92 of the SEND Code of Practice 2015 that include examples such as using an orientation programme for transition or taster sessions, having an individual workstation and having contingency plans in place.

It is important to note that this does not provide a right to a specific mainstream school; it is a general right to a mainstream education.

Off-rolling is unlawful, and a school can only remove a child from the school roll in specific circumstances as set out in Regulation 8 of Education (Pupil Registration) (England) Regulations 2006, including where a child is permanently excluded or ceases to attend the school. If the school continues to be named in the EHC plan, then it must admit the child.

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