PHASED TRANSFER – LA AGREE SPECIALIST EDUCATION IS SUITABLE BUT HAVE NAMED NEAREST MAINSTREAM.
Before the LA name a school in Section I, it must ask the school whether it can meet your child’s needs. This is called “consultation”.
Paragraph 9.80 of the SEN Code of Practice states that “The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan”.
Sometimes a school will tell the LA it cannot meet needs and might explain this in different ways, for example:
It does not have the resources to deliver the provisions
It cannot offer a suitable class or peer group.
It does not have the right space for things like a calm room or breakout area.
It has serious safeguarding concerns (for example, that it cannot keep your child and/or other pupils safe).
They are not the right school for the child / young person.
Section 39(3) of the Children and Families Act 2014 states that the parent or young persons requested placement must be named. The only lawful reasons the LA can refuse to name a school are.
the school or institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person,
or
the attendance of the child or young person at the requested school or other institution would be incompatible with –
the provision of efficient education for others, or
the efficient use of resources.
If the LA names a school in Section I of an EHCP, that school has a legal duty to admit your child/young person. This is in section 43 of the Children and Families Act 2014 But it’s also important to remember the LA has a legal duty to make sure all the provisions in Section F delivered.
This means the LA must make sure the school has the appropriate the funding, training and equipment needed to deliver the provisions in Section F.
This is set in section 42(2) of the Children and Families Act 2014. In day-to-day life, the nursery, school or college usually delivers most of the provisions, but the LA remains legally responsible for making sure it happens.
The LA must do whatever is necessary to secure the provision in Section F, even if that means paying for it from a private provider.
If Section F is vague, it can be difficult if not impossible to enforce. This is because the LA may argue that what you are asking for is not clearly written into the EHCP. Section F must be clear, specific and where required, quantified.
If a school says it cannot meet your child’s needs, ask it to be specific. It should explain exactly which parts of Section F it cannot deliver (and why). The LA should then work with the school to put the right support in place, for example by providing extra funding, staff, training, specialist input, or equipment so that the provisions can be delivered.
Section F should clearly spell out what support your child/young person needs. The LA should not simply leave it to the school to decide what will be provided. This was confirmed in C v Special Educational Needs Tribunal and London Borough of Greenwich[1999] ELR 5.
If the school cannot (or will not) deliver the provision, the LA is still responsible for making sure your child gets it. Any dispute about funding between the LA and the school should never mean a child/young person goes without their EHCP provision. This principle was confirmed in R v Oxfordshire County Council ex-parte Pittick [1996] ELR 153.
Helpful case law: R v London Borough of Harrow ex parte M [1997] ELR 62
This case confirms that the LA has an absolute duty to secure the special educational provision written in an EHCP (section 42 of the Children and Families Act 2014). “Absolute” means the LA cannot pass responsibility to someone else (for example a school or the NHS), even if they are the ones delivering the support day to day. If the LA fails to do this, the duty can be enforced through the courts (for example by judicial review).
If you are being told your child must attend the named school but you do not agree with it, you can put this in writing. You can say that you do not agree to the start date and that your child’s name should not be added to the admission register until a start date has been agreed.
Regulation 8(1) of the School Attendance (Pupil Registration) (England) Regulations 2024 says: “The proprietor of a school must ensure that the name of each pupil at the school is entered in the school’s admission register on the pupil’s starting day, before or at the beginning of the first school session on that day”.
Regulation 3 explains that the “starting day” is either the first day your child actually attends, or a day that has been agreed as their start date. The regulations say the person who controls the pupil’s attendance must agree the start date, in most cases, this is the parent.
This means your child should only be added to the new school’s roll on the day they actually start, or on the start date that you have agreed.
What this means for you: if the school the LA have named in Section I has stated it cannot meet needs. The LA should discuss the concerns with the school, keep a clear written record, and set out what will change (for example, extra support, reasonable adjustments, training, or funding) so your child can attend and have their EHCP delivered in full.
It is not enough for the LA or the school to say “we’ve considered it” without showing they have properly looked at the issues raised and how they will be addressed.
We would recommend requesting a meeting to move things forward. For example, if the concern is about staffing or resources, the LA may be able to agree extra funding or extra support in school (such as 1:1 support) so the placement can go ahead.
It would be advisable to arrange a meeting with the allocated SEND Officer (EHC Team), your child’s current SENCO, and the SENCO at the new school, along with yourself and your young person (if appropriate). The aim is to make sure the right support, and practical arrangements are agreed and in place before you agree a start date.
This is worth doing even if you are appealing, because appeals can take time and may not be decided before schools return in September. It also helps to have a plan in place in case the outcome is not what you hoped for.