This is a two-part blog post looking at choosing a school with an Education and Health Care Plan ("EHC Plan"). This post considers the broad legal framework, and the second blog post looks in more detail at the two most common reasons why placement issues are appealed.
The Law
Choosing a school is often a fraught process for children and young people with Special Educational Needs and Disabilities (SEND). Many have poor or even traumatic experiences of education, and ensuring the correct placement is critical for reasons that go far beyond academic attainment. For those children and young people with an EHC Plan the ordinary admissions process does not apply. Instead, parents/carers are able to indicate a preferred school (or college) to be named at Section I (Placement) at the draft EHC Plan stage. The local authority is then obliged to name that setting - provided is set out at s.38(3) of the Children and Families Act 2014 (“CAFA 2014”) - unless it is able to demonstrate that at least one of three statutory grounds of refusal under s.39(4) apply. The presumption therefore is that parent/carer preference will be complied with unless the local authority is able to displace it; and the burden of proof lies on the local authority to do so. Where a child is moving from primary to secondary education, the local authority must issue a final EHC Plan naming a school (or type of school) by 15th February of the calendar year that the child will begin secondary education.
In circumstances where parent/carer preference is for a mainstream setting, section 33 of CAFA 2014 provides that this must be acceded to unless either (somewhat tautologically) it is against the wishes of the parents/carers, or it is incompatible with the provision of efficient education for others, and the local authority is able to demonstrate that there are no reasonable steps that it could take to prevent the incompatibility. This means that in practice it is very rare for a local authority to fail to name a mainstream school where that is requested; although it should be noted that strictly speaking the right is to a mainstream education, not necessarily a particular mainstream school.
Frequently the issue faced by parents and carers is that the school (or college) they prefer is objected to by the local authority on the grounds that it is ‘full’ or too expensive. The latter is almost always the case where the placement sought is at an independent setting, as the cost is usually several multiples of that at maintained settings. Note that it is the local authority not the school that determines which placement is named in the EHC Plan and they can, and often do, override the wishes of the school in this respect.
SEND Advocacy can advise on placement issues and support you to obtain the right setting for your child or young person. If you need someone in your corner to help you secure the education your child or young person deserves, contact us today.
