You cannot request an independent school in the same way that you can request the settings listed in (S.38(3) CAFA 2014).

This means that the process to ask for and argue for a place at this type of setting is different. 

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.

• You must have an offer of a place from the independent setting. (Provisional Offer of Placement - POP) Unlike the S.38(3) schools, an LA cannot order an independent school to accept a child or young person.

To get this, you will need to send the EHCP and recent reports (listed in Section K) to the school for consultation. 

• Check whether the independent setting is in fact a S.41 school or a non-maintained special school – if it is, it comes within the list in S.38(3), and so then the burden shifts to the LA to show that it is not the appropriate school to name in the EHC plan.
• The LA must have regard to the general principle that pupils are to be educated in accordance with their parents’ wishes and the pupils’ wishes (S.19 CAFA 2014), so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (S.9 Education Act 1996).
• It is your responsibility to prove that none of the schools the LA is offering can meet your child’s needs, or that the cost of the placement will not constitute unreasonable public expenditure. Public expenditure includes all the costs to the public purse of the placement, not just those incurred by the LA education budget. This can include social care costs, health costs and any other costs incurred by any public body.

If you cannot show this, the Tribunal will not order an independent school to be named. It does not matter that the independent setting proposed is an excellent school and/or better suited to the child needs than the school the LA has in mind. LAs, and Tribunals acting in the LA’s place on an appeal, are not bound to offer a child ‘the best’ provision to meet their needs – only what is necessary to meet their needs. In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school, but that the school offered by the LA cannot meet the child’s needs.

• You should acquire evidence from a professional as to why the independent setting is the only school which can meet your child’s needs.

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.

Therefore, it is especially important that your appeal includes sections B and F of the EHCP as well as section I. 

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 is able to show the setting requested by the parent or young person should not be named, because one of the above 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 also no legal deadline for their EHCP to be amended to specify the name, (in addition to the type) of the setting. However, once a setting is found for them to attend, the LA should take steps amend the EHCP to name it.

In the meantime, the LA must make sure your child, or young person gets all of the provision specified in section F (this duty is set out in section 42(2) CFA 2014) and the responsible commissioning health body will still need to arrange any health care provision in section G of the EHC plan.

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