Schools and other settings use different ways to describe themselves, for example infants, junior, primary, secondary, but in order to determine which parts of special educational needs (SEN) and disability law apply to a particular school, you will need to know which category the school falls into.

The basic division between types of school and other institutions (including post-16 institutions and early years providers) is between:

• those controlled by a local authority (LA) – referred to as maintained, which is shorthand for “maintained by a local authority”
• those controlled by the Secretary of State – referred to generically as Academies, and
• those which are neither of the above, which are usually controlled by private contracts between the parties

Maintained defines a school/institution by reference to how it is controlled. A school which is maintained by an LA may be a mainstream school, but it could also be a special school.

Mainstream defines a school/institution not by who controls it but by its provision, and this generally refers to provision other than special schools, hospital schools, alternative provision etc.

Maintained schools or other institutions

Educational institutions controlled and funded (maintained) by LAs (sometimes referred to as “state” schools or institutions) can include:

• mainstream schools (such as mainstream community schools, voluntary-aided, trust, foundation, or grammar schools)
• nurseries (free-standing or part of a community primary school)
• special schools,
• alternative provision (including Pupil Referral Units), and
• post-16 institutions (Further Education colleges and sixth form colleges).

These are regulated by statute, regulations and statutory guidance.

A Pupil Referral Unit is for children who need to be educated out of school, often because they have been excluded. They have the same legal status as schools in some respects but do not have to teach the national curriculum.

Academies

These are schools controlled and funded directly by the Secretary of State for Education and include:

• Academies
• Free schools
• University Technical College schools
• Studio schools
• Academy special schools
• alternative provision Academies, and
• Academy boarding schools.

These are not maintained or controlled by LAs. They are subject to a contract between the Academy trust (owner) and the Secretary of State known as the “Funding Agreement”. Much (but not all) of the law and guidance for maintained schools applies to them as do many of the regulations for independent schools. They are subject to the same inspections as state schools by Ofsted.

Schools or institutions not controlled by either an LA or the Secretary of State

These schools are broadly referred to as independent schools. It is worth understanding the different types as these schools often have provision available for children and young people with SEN.

These are:

• Independent schools – these are mostly controlled by charities (and therefore, “not for profit”) but there are some private “for-profit” owners. Due to their independence their provision is not the same across the sector as for the state sector. They include prep schools, public schools, and private nurseries (early years provision). Some private schools are registered as “specially organised to make provision with pupils for SEN”. However, for legal purposes independent schools are neither special nor mainstream, but all simply “independent”.

• Non-maintained special schools – all charitable foundations and “not for profit”. This type of school will take a mixture of children and young people with and without EHCP's but in practice almost 100% of their pupils are publicly funded through EHCP's.

• Section 41 schools – these are independent schools which have been approved by the Secretary of State under section 41 of the Children and Families Act (CFA) 2014 as schools which a parent or young person can request to be named in an EHC plan. This means parents or young people have a right to request this type of school is named in an EHCP in the same way they can request a maintained school, for example.

• Private post-16 institutions – these may also opt for section 41 status. 

Mainstream or Special?

A special school is a school which is “specially organised to make special educational provision for pupils with SEN”. This is set out in section 337 of the Education Act 1996.

A mainstream school is a school which is not a special school and is either a maintained school or an Academy. This is set out in section 83 CFA 2014. Independent schools are not classed as mainstream schools.