Placement Consultation Process

• An EHC plan is in draft and an education setting needs to be identified
• A child has moved to Essex and requires an education setting
• An annual review has taken place and a change of placement is necessary
• A child is transitioning to another phase of education eg. primary to secondary
• An active SEND Tribunal appeal by parents or young person against the school setting named in an EHC plan.

If the local authority refuse to consult your parental choice for any other reason than above legal test (and your preferred school meets the criteria listed in SEND Code of Practice 9.78) you can send a letter to the local authority and use the template letter from Ipsea Complaining when the local authority will not consult with the school or college

Yes, you can name more than one parental preference.  Consider the reason your parental preference is more suitable and compatible than the local authority’s choice.  

You may have ongoing conversations with the school around consultations and suggested school settings.  In some cases if an agreement is not reached the local authority may decide to finalise the EHC plan and name a ‘type of setting’, but this does not mean  that negotiations will cease.  You can continue suggesting any school placement you feel would be appropriate. However, when the local authority name a setting this means they have identified a school which, in their view, is the closest most appropriate to meet a child’s needs and the consultation process will conclude.  If the local authority have named a school in Section I they will be reluctant to consult outside of an annual review or appeal process. It is important to bear in mind that if the local authority have given you the right of appeal, you must keep an eye on your timeframe to lodge an appeal. 

You can lodge an appeal, either within two months of the original decision being sent by the local authority (EHC plan finalised), or within one month of the date of the mediation certificate, whichever is the later.

You can 'make representations' (request and give your reasons) for an Independent school to be named, though the local authority must consider your wishes there is no conditional duty to consult. They will only name an independent school where a place has been offered.  Therefore you must have a written offer of a place before you request to name an independent school.

The LA must consult with schools specified in Section 38 (3) which includes independent special schools and special post-16 institutions approved by the Secretary of State under section 41.  View the list of approved independent schools and colleges, known as ‘section 41’ schools.

The LA does not have the same duty to consult with other independent schools.  You can ‘make representations’ (request and give your reasons) for an Independent school, though the local authority must consider your wishes there is no conditional duty to consult and name.

The LA must have regard to the general principle that children should be educated in accordance with their parents’ wishes, so long as this is suitable and compatible  with the efficient education of others and does not mean unreasonable public expenditure.

Often the reason the local authority reject a request for an Independent school is due to costs (the third of the reasons ‘incompatible with the efficient use of resources’). They will name a school in the EHC plan they believe is suitable and if you disagree you will have the option of appealing.  Where the local authority reject your request, they will be relying on one or more of the reasons shown (s9.79 of the SEND Code of Practice 2015)

They will only name an independent school where a place has been offered.

Ipsea provide further information on Section 41 schools and colleges

Parents or young people have a legal right to request that a particular school or college is named in an education, health and care (“EHC”) plan (or to express a preference for an independent school, college or other institution).

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 (“CAFA”) 2014.

If the school that you have asked to be named is one of these types of schools the only reason the local authority can refuse the request is if:

• The setting is unsuitable for the age, ability, aptitude or special educational needs (“SEN”) of your child; or
• The attendance of your child would be incompatible with the provision of efficient education for others; or
• The attendance of your child would be incompatible with the efficient use of resources.

This is set out in section 39(4) CAFA 2014. The LA must prove that at least one of these conditions applies in order to dislodge your preference.  

Local authorities  are required to arrange free, suitable, home to school transport for children of compulsory school age who are ‘eligible’, to their nearest suitable qualifying school (section 508B of the Education Act (“EA”) 1996).

The local authority may argue that because you have chosen a school in another borough, they are not required to provide transport. However, the LA will have to establish that the school they wish to name is in fact suitable and they will also have to show that your preferred school would be an inefficient use of the LA’s resources.

You can read our information on Transport which also provides guidance on travel disclaimers.

Essex has worked with primary and secondary mainstream schools to develop additionally resourced provisions. These are called Enhanced Provisions for Other Needs (Essex Local Offer). 

Enhanced provision covers the following needs:-

• Hearing Impaired Provision
• Autism Provision
• Speech & Language Provision
• Social Emotional & Mental Health Provision
• Dyslexia Provision
• Severe Learning Difficulties

Though these Enhanced provisions are attached to mainstream schools, apart from exceptional circumstances, your child will need an EHC plan to be able to attend. 

The majority of hubs and units are based within the mainstream school and therefore the mainstream school is named in Section I and the provision available at the specialist unit is described within section F, unless it is listed as a separate institution.  If it is listed as separate institution it can be named on an EHC plan.  You can check if the unit is listed as a separate institution in the  Department for Education’s register of schools and colleges in England. 

Important note: If a parent has to appeal to First Tier Tribunal to ensure their child's access to the unit, it is essential that the appeal includes Section B and F of the plan, as the SEND Tribunal will not be able to order the local authority to name the unit in Section I (if it is a separate institution). 

If a child has an Education Health and Care plan (EHCP) and you choose to electively home educate, the local authority no longer has a legal duty to secure any special educational provision set out in the EHC plan, because you are deemed to be making your own suitable alternative arrangements.

If, however, the local authority (LA) deems school or college to be inappropriate for your child or young person, the LA can arrange for your child’s special educational provision to be delivered somewhere other than in a school, college or early years setting.  The LA would then be responsible for continuing to secure and fund that provision.

A parent may need to educate their child at home because there is no viable alternative due to their child’s particular needs, whether medical or otherwise. This is different to elective home education because the parent has not chosen or ‘elected’ to educate them at home. Instead, it is known as ‘education otherwise than in a setting’ (“EOTAS”) or ‘education otherwise’.

For further information read Education Other than in school or college

SENDIASS would encourage parents to:-

• Check the Schools’ website for provision and facilities
• Speak to the school senco or Learning Lead about your child or young person’s needs
• Ask your SEND Operations Co-ordinator to help facilitate a visit at the school

You can read our information on Choosing a school with an EHC plan

If the school feels that it does not feel able to meet the child’s needs, they will respond that either:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others, or the efficient use of resources. 

These are the only legal reasons the school can give.

Although the local authority has overriding power to name a maintained school in an EHCP regardless of the school’s representations they will take into consideration the school’s response but may also ask for further information.

Therefore, if a school strongly feel they cannot meet the provision described in Section F, they must outline clearly the concerns and provide supporting evidence for the local authority to consider.  The local authority may discuss increasing the funding banding or offering the involvement of an Inclusion Partner which could enable the school to reconsider their response.

If a local authority names an education setting in Section I of an EHC plan, they have a legal duty to ensure that the special educational provision specified in section F of an Education, Health and Care plan is delivered (this is set out in section 42 of the Children and Families Act 2014).  The local authority must ensure that school have the correct financial resources, training and equipment to implement the provision in the plan.

If parents disagree with the local authority’s decision on school named in Section I of an EHC plan they will be given the right to appeal at SEND Tribunal. 

Yes, a child must attend the school named on the EHC plan.  Sometimes there can be negotiations between school and the local authority if a parent wishes a child to continue attending their existing schools whilst an appeal takes place, but there is no obligation for the local authority or school to agree this.   A child’s name is removed from a school roll when an EHC plan is issued naming another school. 

It states in The Education (Pupil Registration) (England) Regulations 2006 (the Registration Regulations) that a pupil’s name can be removed from a school’s admission register when they have been registered as a pupil at another school (unless it is agreed that the pupil should be registered at more than one school).  This means that despite a parent lodging an appeal, the child is expected to attend the school named on the EHC plan.

SENDIASS would encourage parents to:-

• Discuss concerns with the school named on the EHC plan
• Ask the school to reach out to either an Inclusion Partner or involve an Engagement Facilitator for their specialist advice
• Consider what support needs to be in place to enable your child to attend, this could be a reduced timetable, adjustments to the curriculum or the involvement of outside services or agencies.

Yes, you can ask the local authority to consider another school to be consulted.  You will do this by completing a request for change form and provide your reasons for the request.

You should complete the Request for change form explaining the changes you want to make and explain the reasons for asking for the amendments and send a copy of the form to the local authority seeking their views.  You should then send the local authority’s views along with the request form and any supporting documents to the SEND Tribunal, and a copy to the local authority.

You can kindly ask your SEND Operations Co-ordinator for a copy of the consultation responses but they are not obliged to share this with you, unless it forms part of the supporting evidence for an appeal.