Choosing a School/Setting with an EHCP
November 2023 – Back to School/Choosing a School – how the process works with an EHCP
School/Setting admissions with an EHCP
When a child or a young person has an EHC plan, the “normal” admission procedure that other children or young people in a local authority have to follow does not apply to them. Instead, the parent/young person will be assigned a case worker from the Local Authority, who will consult with the parent/young person and prospective schools to find a suitable placement to name in Section I of their EHCP.
When can I request a school/setting with an EHCP?
– During an initial EHC needs assessment. When you receive the draft plan, you should also be asked to name a preference for a school or setting to be named in the EHCP.
-During a reassessment of needs, if amendments to the EHCP are agreed as part of this process.
–During the Annual Review process. You can make a request for a change of placement at the Annual Review Meeting. In some cases, this may be done through an early “emergency” or “urgent” review if it is believed that the current setting is no longer able to meet needs.
-During a transition annual review, in order to decide on the next placement for a transfer between education phases
Which schools/settings do parents/young people have the right to request?
The parent or young person has a right to request any of the following types of school or college:
- 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
- A section 41 school.
These are listed in section 38(3) of the Children and Families Act 2014.
Consulting with schools
After receiving your preference, the Local Authority must “consult” with your chosen school/preference (or consider consulting if your choice is independent). The Local Authority will ask the school/setting to consider the child/young person’s EHCP and respond as to whether they are able to meet the needs and provisions described. In Practice this is usually done with a consult form. You can request a copy of the school/setting’s consult response from your case worker.
Can the LA Consult with other schools?
Yes. The Local Authority are entitled to consult with other schools/settings that they believe would be able to meet the child/young person’s needs. An LA, before naming a school, 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 LA, that LA.
-From Section 39(6) Children and Families Act 2014.
Legal reasons a Local Authority can refuse a school preference
The only legal reason the local authority can refuse a parent/young person’s request for a school/college/placement is if:
The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of the child or young person;
The attendance of the child or young person would be incompatible with the provision of efficient education for others;
The attendance of the child or young person would be incompatible with the efficient use of resources.
This is set out in section 39(4) of The Children and Families Act 2014.
Asking for an Independent Setting
An independent school/setting is not included in the legal list of setting types that the Local Authority must consult with on request. However, a parent/young person is still able to make representations for an Independent Setting. The Local Authority must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 Education Act 1996)
When should the school/setting respond?
The Local Authority should allow a school/setting 15 days to respond to a consult request. If it fails to respond, the LA does not have to wait to make a decision about naming a school/setting. The LA still needs to stick to the statutory deadlines for issuing a final plan.
What are the deadlines for naming a school/setting in an EHCP?
When an EHCP must be finalised with a school named in Section I:
For an initial EHC needs assessment- within 20 weeks of the date the assessment request was received by the LA
During a reassessment- within 14 weeks of the request for reassessment being made
For children/young people transferring from secondary school to a post-16 institution- by 31st March in the year of transfer.
For all other phases of transfer, e.g. Primary to Secondary- by 15th February in the year of transfer.
Following an Annual Review but not a phase transfer- As soon as practicable and within 8 weeks of the date the LA sent the EHC plan and proposed amendments to parents/young person
The Duty to Admit
If a school or institution is named in Section I of an EHC plan then the governing body, proprietor or principal of most types of school or other institution must admit the child or young person for whom the EHC plan is maintained. As found in Section 43(2) of The Children and Families Act 2014.
Right to mainstream
If the parents or young person wants a mainstream school/setting named in the EHC plan, Section 33 of The Children and Families Act 2014 says that a child or young person with an EHC plan must be educated in a mainstream setting unless:
It is against the wishes of the child’s parent or the young person; or
It is incompatible with the provision of efficient education for others and the LA shows that there are no reasonable steps that it could take to prevent the incompatibility.
What if I do not agree with the named school?
If the parent or young person does not agree with the school/setting named in the final EHCP, they have a right to make an appeal to the SEND Tribunal against this decision. The Local Authority must write to the parent or young person when they finalise the EHCP to explain their right to mediation and appeal and how long they have to do this. Note- the deadline for parents/young people to submit an appeal should be 2 months from the date on the LA decision letter.
Further information for naming a school in an EHCP
You can find further information and resources on the IPSEA legal website. You may find it helpful to visit:
Complaining when the LA will not consult with the school or college you request- you can use this model letter to complain if you request an eligible Section 38 school, but the Local Authority will not consult with them.