There are generally 3 circumstances where you will be asked to let the local authority know which setting (nursery, school, college for example) you feel would be suitable for your child or young person (CYP). This is generally known as ‘preference’.

1. When you receive your Draft EHC plan. You will be asked to complete a preference form to be returned within 15 days to your Planning Coordinator (along with any change requests to the EHC plan itself). By completing and returning this, you are formally requesting that the LA name your preference in the EHC plan. Even if you would like your child or young person to remain in their mainstream setting, you will need to let your Planning Coordinator know as they will have to consult with the school (see further down for what this means).
2. Where a child or young person is needing to change setting due to their age (known as Age Phase Transition). You will generally receive a letter from SENAT (the dept responsible for the EHCP) in the summer term (before their last year starts)
3. Where the LA is considering amending an EHC plan following an Annual Review (Send Regulations 2014 section 22)

It can help to know what the different types of education settings are (such as nurseries, schools and colleges) as the process can vary slightly depending on the type.

The first consideration is the category of control (who has ownership/ responsibility)-

1. Those controlled by a local authority (“LA”) – referred to as maintained – (“maintained by a local authority”);
2. Those controlled by the Secretary of State – referred to generically as Academies;
3. Those which are neither of the above, which are usually controlled by private contracts between the parties. Generally referred to as Independent.

Within these categories there are then different types of educational settings:

• Mainstream settings
• Mainstream settings with Special Support Centres (SSCs) or units
• Special Schools (including nurseries, post 16)
  • Non-maintained Special Schools – all charitable foundations and “not for profit”. (This type of school can take a mixture of children and young people with and without EHC plans but in practice almost 100% of their pupils are publicly funded through EHC plans)
  • Section 41 Independent schools – These are independent special schools which have been approved by the Secretary of State under section 41 of the Children and Families Act (“CAFA”) 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 EHC plan in the same way they can request a maintained school.
  • Non section 41 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 SEN provision will be very different school to school. 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”
• Private post-16 institutions. These may or may not have opted for section 41 approved status

Because the EHC plan is a legal document, once a setting is named in Section I, the setting itself has a duty to admit (if one of those on the list below in blue) and the local authority have a duty to ensure that provision written in the EHC plan is given.

The LA will therefore want to make sure that they name the right setting and they have certain legal criteria that must be considered before being able to do this (we will look at these considerations further on).

When a draft EHC plan is issued, the LA must give parents or the young person notice of your right to request the local authority to secure that a particular school or other institution is named in the EHC plan.

However this ‘right’ only applies where that setting is one of the following:

• a maintained school;
• a maintained nursery school;
• an Academy;
• an institution within the further education sector in England;
• a non-maintained special school;
• an institution approved by the Secretary of State under section 41

CAFA 2014 section 38

There are generally 2 steps the LA must take if they receive your preference and it is one of the list above. We will break these down and explain these in more detail.

For an Independent Special School or Special Post 16 Institution to be named on an EHC plan it must first have had approval by the Secretary of State for that purpose.

This section applies where no request is made to a local authority to secure that a particular school or other institution is named in an EHC plan (within the required notice period (i.e. 15 days).

(2) The local authority must secure that the plan –

• (a) names a school or other institution which the local authority thinks would be appropriate for the child or young person concerned, or
• (b) specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.

(3) Before securing that the plan names a school or other institution under subsection (2)(a), the local authority must consult

• (a) the governing body, proprietor or principal of any school or other institution the authority is considering having named in the plan, and
• (b) if that school or other institution is maintained by another local authority, that authority.

(4) The local authority must also secure that any changes it thinks necessary are made to the draft EHC plan.

(5) The local authority must send a copy of the finalised EHC plan to—

• (a) the child’s parent or the young person, and
• (b) the governing body, proprietor or principal of any school or other institution named in the plan.

Many of the special schools and SSCs are at full capacity and although they may specialise in a particular area of SEN that would be appropriate for your child or young person, they refuse to provide a place.

Schools are also known to refuse to offer a place due to an incompatibility with the current cohort.

Under the CAFA 2014 and the Code of Practice 2015, the LA should name the school on the EHC plan, (if it is one of the listed types that allows this) unless there is incompatibility (i.e one of the conditions mentioned above). Incompatibility can only be established where a full consultation has taken place and consideration made as to whether any reasonable adjustments can be made to remove the incompatibility.

There should be a record of what the LA have considered and the reasons for that particular adjustment not being considered as reasonable. You will have the right to ask your Planning Coordinator for the details of these considerations, especially if you are going to have to go to appeal or mediation.

Mainstream may not have been appropriate without an EHCP, but with the provision within an EHCP, your child or young person may be able to stay in mainstream and do well.

Fully Independent schools (non 41 schools) don’t have the same duty for SEND as they do not have to follow the SEND Code of Practice. All schools have a duty under the Equality Act 2010 to make reasonable adjustments for those who meet the disability criteria.

Where summer holidays fall within any part of the EHCNA / EHCP process, adjustments to the timeframes may be made. However, as most schools are closed over this time, we would advise where possible to do some forward planning and start to have conversations with any schools being considered. Not all schools will allow visits until the EHCP is agreed, however you can send them paperwork in advance (i.e. EP report and so on).

If communication fails and/ or you are not able to reach a satisfactory conclusion, then you may need to consider mediation or Appealing to the SEND Tribunal. For more information please see our appeals pages. This can be a very lengthy process so good communication is to be encouraged as far as possible.

Is the school you would like, on the list of schools that the LA must secure is named on the EHC plan?

Have you let the LA know the school you would like named?

Have you spoken with the school itself to see if they can meet need / offer a place?

Does the preferred school meet any of the conditions that mean the LA do not have to name it? (do you agree with these)?

Have you chatted / seen the school that the LA are suggesting?