First, what do we mean by “independent special school”?
Not all special schools are the same, and the type of school matters enormously when it comes to your legal rights. Under the Children and Families Act 2014 (CFA 2014), there are broadly two categories of independent special school:
Section 41 approved settings are independent or specialist schools and colleges that have applied to the Secretary of State for approval as a setting that parents and young people can formally request. Once approved, they sit on the Department for Education’s published list of section 41 institutions and are treated similarly to maintained schools and academies in the EHC plan process. You can check whether a school appears on this list on the DfE website.
Wholly independent schools are private, fee-paying schools or colleges that are not on the section 41 list, are not non-maintained special schools, and are not in the further education sector. This category also includes most nurseries and private childcare settings. With wholly independent schools, your legal position is different and it is important to understand the distinction.
Your rights when requesting a section 41 school
If the school you want is on the section 41 approved list, you can make a formal request for it under section 38(3) of the CFA 2014, just as you would for a maintained school or academy. This means the LA has a conditional duty to name it in your child’s EHC plan.
The LA can only refuse if it can demonstrate one of the following applies (section 39(4) CFA 2014):
• The school is unsuitable for your child’s age, ability, aptitude or special educational needs, or
• Your child’s attendance would be incompatible with the efficient education of other pupils at the school, or
• Your child’s attendance would be an inefficient use of resources (i.e. there is a cheaper suitable alternative).
These are not easy hurdles for an LA to clear. The bar is genuinely high. On the “efficient education of others” test, courts have confirmed that the LA needs to be quite precise. It isn’t enough to say in general terms that a school is full or that other children would be disrupted. The LA must identify specifically which children’s education would be affected and how.
On the cost question, the law does not say the cheapest option always wins. The LA must weigh up the extra cost against the benefit to your child of attending the requested school. Courts have found that even cost differences of tens of thousands of pounds can be justified where the benefits to the child are significant enough. The starting point must always be whether the LA’s proposed alternative can actually meet your child’s needs...if it cannot, it isn’t a fair comparison at all.
What if the school is wholly independent (not on the section 41 list)?
This is where things become more difficult, but it is not a dead end. You cannot make a formal request under section 38(3) for a wholly independent school, but you do have the right to make representations for that placement. The LA must consider your wishes.
Under section 40(2) CFA 2014, the LA has the power to name a wholly independent school in your child’s EHC plan...it just doesn’t have a duty to do so in the same way. There are two important conditions: the LA must consider the placement appropriate, and the school itself must agree to offer a place (wholly independent schools cannot be named in an EHC plan without their consent, and they have no duty to admit under the CFA 2014).
If the LA does name an independent school in your child’s EHC plan, it must fund the placement and pay the fees. This is set out in section 63(2) CFA 2014. The cost comes from the LA’s budget and, where relevant, the wider public purse.
When making your case for a wholly independent placement, you will generally need to show that the LA’s proposed alternative cannot meet your child’s special educational needs. If there is a large cost difference, that will be a factor, but cost alone is not a reason to refuse if the alternative is not appropriate.
The EHC plan must come first
One crucial point that often gets missed: the school named in the EHC plan should follow from the content of the plan, not the other way around. The plan must first clearly set out your child’s special educational needs (Section B) and the provision required to meet them (Section F). Only once that provision is clearly specified can you properly assess which school is capable of delivering it.
This is why vague, woolly EHC plans cause so many problems with school placements. If Section F simply says “speech and language therapy as recommended,” rather than specifying the frequency, duration, and type of therapy required, it becomes much harder to argue that only a particular school can meet those needs. Strong, specific EHC plan content is the foundation on which any school placement argument is built.
Can I appeal if the LA won’t name the school I want?
Yes. If the LA names a school you disagree with, or fails to name the school you have requested, you have a right of appeal to the SEND Tribunal. The Tribunal will step into the LA’s shoes and apply the same legal tests.
For section 41 settings, the Tribunal will consider the section 39(4) conditions described above. For wholly independent schools, the Tribunal can consider whether the LA’s use of its power under section 40(2) was appropriate, though this is a more complex argument.
Before you can appeal, you will need to go through mediation (or obtain a mediation certificate confirming you have considered it). There are strict time limits, so it is important to take advice promptly once you receive the LA’s decision.
Practical tips
• Check the school’s status first. Use the government’s ‘Get information about schools’ tool to look up the school. If it appears as ‘Other independent special school,’ check whether it is on the DfE’s list of section 41 approved settings.
• Get the school’s support in writing. Whether it is a section 41 school or a wholly independent one, having a letter from the school confirming they can meet your child’s needs and offer a place is very helpful.
• Focus on needs and provision. Make sure your child’s EHC plan is specific and detailed before making representations. The stronger the plan, the stronger your argument.
• Don’t accept “too expensive” at face value. The LA has to demonstrate the cost difference is significant and disproportionate, and even then must weigh it against the benefits to your child.
• Take advice. Placement disputes can be complex. Please contact us at The SEN Advocate for further advice.
A note on costs and who pays
If a wholly independent or section 41 school is named in your child’s EHC plan, the LA must fund the placement. You should not be expected to top up fees privately (though some families do choose to contribute to additional extras). The LA cannot simply refuse to fund an appropriate placement because it is expensive, without properly going through the legal tests described above.
Independent special school placements are not out of reach for most families but they do require persistence, good evidence, and a clear understanding of the law. If you are in this situation and want to talk it through, feel free to get in touch.
This blog is for general information only and does not constitute legal advice. For advice specific to your child’s situation, please contact a specialist SEND legal advice service.