Parent asks:

A child in my school has had a draft EHC plan for over a year. The LA has consulted with all LA schools and even with independent schools, all of whom say they can't meet his needs. He is now stuck in our mainstream school (although he is a school refuser too). He needs significant specialist support, as per his EHC plan, but the LA does not seem to be rushing to find him an appropriate placement. Parents are beside themselves with worry. Can they challenge the LA to force the school of their choice to take him?

Ipsea answers:

Yes; if the school is:

• A maintained school or nursery (mainstream or special)
• An Academy (mainstream or special)
• An institution in the Further Education sector
• A non-maintained special school
• A section 41 school,

then it can be named in an EHC plan by the LA without its consent. (An LA only needs the school’s consent if it is naming an independent school.) The LA can only refuse to name a school where one of three legal exceptions applies. See our page on choosing a school with an EHC plan for more information. If the LA is refusing to name the parents’ choice of school, the parents will need to appeal against the EHC plan. The first step towards this is getting the LA to finalise the EHC plan – even if it is still unsatisfactory.

As it has been in draft for over a year, the LA will have missed the deadlines which apply as part of the EHC needs assessment process. (Although there were some extensions to deadlines due to Covid-19, these only applied to deadlines which fell after 1 May 2020, and so are unlikely to be relevant here.)

The parents can use our model letter to complain about the delay. If the LA do not finalise the EHC plan, they could either escalate their complaint to the LGSCO or consider sending a pre-action protocol letter in anticipation of judicial review. Complaining to the LGSCO is not a quick process, and given the amount of time which has elapsed already, we would be inclined to advise that the parents should go down the judicial review route. It is highly unlikely that they would actually need to start court proceedings; simply receiving a pre-action protocol letter (the first step in the process) is generally enough to get an LA to comply with a missed deadline.

Once the EHC plan is finalised, the parents can appeal to the SEND Tribunal. The Tribunal has the power to name any of the above types of school in an EHC plan, and can also name independent schools provided the school consents to this. We recommend the parents take a look at our pages on appealing to the SEND Tribunal, and in particular the section on appealing against the school named in your EHC plan