Requesting a new school with an EHCP - Central Bedfordshire SENDIASS

HOW TO REQUEST A DIFFERENT SCHOOL WITH AN EHCP

TO MAKE A REQUEST FOR A NEW SCHOOL / EDUCATIONAL SETTING, YOU MUST MAKE A WRITTEN REQUEST IF YOU WOULD LIKE PARTICULAR SCHOOLS TO BE CONSULTED WITH.

This should be done when you respond with your comments on your Childs / Young Person’s draft EHCP, or during the Annual Review process.

The LA should consult and consider requests for school consultations up until the EHCP has been finalised.

To request a different school/college after an EHCP has been finalised you may need to wait for a new annual review to be started or consider making an appeal to the SEND tribunal if you are still within legal timeframes (2 months from the date of the final EHCP).

Your allocated EHCP Coordinator / SEND officer will consult with the setting you request.

They should send all the information gathered from the EHC Needs Assessment Process or the amended draft EHCP following an Annual Review to the schools for formal consultation.

Whilst the LA will formally consult, a young person or parent can also approach a school themselves and ask them for views.

Education settings should respond to the LA within 15 calendar days with their comments. In practice some settings will take longer to respond. The LA can also consult other schools they feel are appropriate.

Following consultations, the LA will decide which setting to name on the EHCP, including special schools or ARP. In most instances an LA will use a panel system to make the decision where there are requests for special schools or APRs.

In Central Bedfordshire this is called a Special Provision Placement Panel.

It is the LA’s duty to secure the special educational provision in section F of the EHCP.

If the LA does not name, the young person or parental preference of nursery/school/college the LA should give clear reasoning that meets the legal test as described in the Children and Families Act Section 39 and/or Education Act 1996 section 9 (as appropriate to the type setting being requested).

Parents or young people have a right to request particular types of settings are named in an EHCP, as set out in section 38(3) of the Children and Families Act (CFA) 2014.

The types of setting you have a right to request are:

- 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, and
- a section 41 school.

Independent settings are not one of those types of settings.

If you have found an independent setting check it is a wholly independent setting and not a ‘section 41 approved’ setting or a non-maintained special school, the LA could still consider naming it as an ‘appropriate’ setting.

The LA must consider yours and your child / young person’s views, wishes and feelings.

This set out in section 19 CFA 2014 and includes where the child or young person wants to be educated.

If you are asking your LA to name an independent setting, they need to have regard to the general principle that pupils (which are usually those under the age of 19) are to be educated in accordance with the wishes of their parents, as far as that is compatible with:

the provision of efficient instruction and training, and
the avoidance of unreasonable public expenditure.

This general principle is set out in section 9 of the Education Act 1996.

If you are not sure what type of school you’re asking for, check on the government website Get Information about Schools.

Naming an additional resource provision (ARP)

If the provision is part of a mainstream school, you have a right to request that the school is named in the EHCP.

However, the provision should not be named in section I of the EHCP, but instead, be described in section F.

It is essential that section F of the EHCP includes a full description of the special education provisions (SEP) that your child / young person requires, which is provided for in the provision, for example small class teaching, onsite speech and language or occupational therapy, or specially trained staff.

Without a clear description in section F, your child could be placed in the mainstream school within which the provision is based and not have any access to the provision.

LAs can name a provision in section I even where it is not a separate provision, but they are not legally obliged too.

If you need to appeal to the SEND Tribunal so your child / young person can access the provision, the SEND Tribunal will not be able to order the LA to name the provision in section I.

Naming 'TYPE'

Some EHCP’s name just the “type” of setting a child or young person is to attend, for example ‘mainstream,’ or ‘special.’

This is lawful if…

- The LA can show the school / setting requested by the parent or young person should not be named, because one of the exceptions applies, and/or
- Neither the parent, young person, nor the LA has identified an appropriate setting to be named.

If the EHCP has been finalised with just a “type” of setting to be attended, this means that there is no school/college with the duty to admit your child or young person.

There is no legal deadline for the EHCP to be amended to specify the name, (in addition to the type) of the setting.

Once a setting is found, the LA should take steps to amend the EHCP and name it in section I.

In the meantime, the LA must make sure your child / young person gets all the provision specified in section F. (this duty is set out in section 42(2) CFA 2014)

The responsible commissioning health body will still need to arrange any health care provision in section G of the EHCP.

If your child is of compulsory school age, the LA must make sure they receive suitable alternative education whilst they remain out of education.

The only reasons the LA can refuse a request for a particular school are...

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

This is set out in section 39(4) CFA 2014.

There are no other lawful reasons.

If the LA refuses your placement request, they must prove that at least one of these conditions applies for the refusal to be lawful.

Cases where each of these conditions have been considered can be found on IPSEA’ s case law pages.

If the LA considers that one of the above reasons does apply in relation to your choice of school / placement, it must name a school / placement (or type) it considers would be “appropriate” for your child or young person.

Efficient education means providing for each child or young person a suitable, appropriate education in terms of their age, ability, aptitude, and any special educational needs they may have.

Where the LA is considering the appropriateness of an individual institution, ‘others’ is intended to mean the children and young people with whom the child or young person with an EHCP will directly come into contact on a regular day-to-day basis.

If you request a particular school that is set out in section 38(3) of the CFA 2014, and the school is named in section I of the EHCP then that school / placement must admit your child or young person. This is set out in section 43 CFA 2014.

If the LA refuse your request and name a different school in section I, then the school / placement named in section I, has a duty to admit your child even if you are unhappy with the LA’s choice of school.

What if you cannot find a school / college?

If you cannot find a school or college you would like to ask the LA to name, and do not make a request for a particular setting to be named, the LA must:

name a school or college it considers appropriate, or
name a type of school or college it considers appropriate.

However, there is a chance that you may not agree the LA’s choice of setting, or type, is appropriate for your child or young person.

Equally, it’s not likely to be reasonable for you to request that information under SEND Regulations 6(1)(a)-(g) is sought from a named individual (such as an independent educational psychologist) rather than from the one proposed by the LA.

It is best to request in writing (either in a letter or an email) that a particular professional is approached, so that you have a record of your request. You can use IPSEA's template letter to do this.

The LA must consider the individual circumstances of your request and decide whether it is reasonable. It must not apply blanket rules, for example that it will not seek advice from a particular service unless the child or young person is already known to them.

If the LA does not agree to your request, you can take action by using IPSEA's template letter.

Types of schools and other settings

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

If the provision is part of a mainstream school, you have a right to request that the school is named in the EHCP.

However, the provision should not be named in section I of the EHCP, but instead, be described in section F.

Without a clear description in section F, your child could be placed in the mainstream school within which the provision is based and not have any access to the provision.

LAs can name a provision in section I even where it is not a separate provision, but they are not legally obliged too.

If you need to appeal to the SEND Tribunal so your child / young person can access the provision, the SEND Tribunal will not be able to order the LA to name the provision in section I.

MAINSTREAM SCHOOL

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.

MAINSTREAM SCHOOLS WITH ADDITIONAL RESOURCE PROVISION (ARP)

An Additionally Resourced Provision (ARP) is a specialist provision within a mainstream school for children and young people with special educational needs and disabilities (SEND).

An ARP offers the opportunity for pupils to benefit from both specialist support and inclusion within a mainstream school environment. Children can access specialist teaching, interventions and support, while also taking part in mainstream classes and school activities where appropriate.

ARP staff have specialist knowledge and training to support pupils with particular types of need. The support available will vary depending on the ARP and the needs it is designed to meet.

An ARP can provide:

Access to specialist teaching and support.
Smaller group learning opportunities.
Staff with expertise in specific areas of SEND.
Opportunities to learn alongside mainstream peers.
Support to develop independence, confidence and social skills.
A balance between specialist provision and mainstream inclusion.

Every ARP is different. They are designed to support different types of SEND and offer varying levels of specialist provision. It is important to find out about the individual ARP, what needs it supports, and whether it is likely to meet your child's needs.

SPECIAL SCHOOL

INDEPENDANT SCHOOLS (SECTION 41 APPROVED)

Section 41 approved schools 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 may also opt for section 41 status.

INDEPENDENT SCHOOLS (Non-Section 41 approved)

Schools or institutions not controlled by either an LA or the Secretary of State, are schools that 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.

Pupil Referral Unit

An EHCP must fully describe a child / young person’s special educational needs (SEN) and specify the provision (SEP) required to meet the identified needs and outcomes as agreed in the EHCP. This then provides the evidence to which type of education setting / placement is most appropriate for the child / young person.

Therefore, it is important to ensure that section B and F are specific and quantifiable.

You have the right to appeal to the First tier SEND Tribunal if you disagree with the LA’s decision to name a particular education setting. You can only appeal once the EHCP has been finalised.

CLICK HERE FOR ADVICE ON CHOOSING A NEW SCHOOL

links to legislation and other guidance

Children and Families Act 2014

Children's and Families Act 2014 - Section 42(2)

Children's and Families Act 2014 Section 39(4)

Children's and Families Act 2014 - Section 43

Independent Schools

Alternative Education

Case Law