Skip to content

Last month 566 parent/carers and young people accessed our service which led to a total of 2,981 emails, contact forms, telephone calls and face to face meetings. Contact us if you need our advice and support.  

Education settings use various descriptors, e.g. nursery, preschool, infants, junior, primary etc.  Let us start by explaining some of these below:-

Nurseries and Pre-schools

A nursery will usually care for children from six weeks of age until they start primary school, with some even caring for school age children. However, a preschool will usually care for children from 2 years old until starting school. The role of Pre-school is learning through play.  You can find out more on Early Years Alliance and Find a childcare Provider

Infant and Primary Schools 

  • Primary Schools are for children who are 4 to 11 years old
  • Infant schools are for children who are 4 to 7 years old and junior schools are for children who are 7 to 11 years old.

Secondary Schools

Secondary schools are the next step up from Primary school.  Pupils will start Secondary School in Year 7. 

Further Education and Sixth Form

There are three types of institutions that provide further education (FE):-

Sixth forms offer a variety of A-level and BTEC qualifications and are attached to a secondary school, which is why they are often referred to as school sixth forms.

Sixth form colleges offer the same provision as a school sixth form however, they are separate from secondary schools. Unlike the latter, Further Education (FE) colleges offer a much wider variety of courses including access courses, higher education-level diplomas and often, bachelor’s degrees.

Colleges may also offer apprenticeships and other community provision. So, one way to think about it is that FE colleges are on one end of the spectrum and school sixth forms are on the other, with sixth form colleges being the middle ground.

The SEND Code of Practice 2015 provides guidance to Local Education Authorities, maintained schools, early education settings and others on carrying out their statutory duties to identify, assess and make provision for children’s special educational needs.

 

Schools must publish a SEN Information Report about their provision and support for children and young people with special educational needs and disabilities (SEND).   The information to be included in the SEN information report is set out in the Special Educational Needs & Disability Regulations 2014 Schedule 1.  

 

The SEN information report should be updated annually with any changes occurring during the year updated as soon as possible. 

 

Schools should publish this information and school policies on their school website so that young people, parents and other professionals can find it easily.

To help you determine which parts of SEN and disability law apply to a particular school, you will need to know which category the school falls into.  Below are a list of types of schools and other settings:-

Maintained/Mainstream

What is a maintained School?

Educational institutions controlled and funded (maintained) by local authorities (sometimes referred to as “state” schools or institutions) can include:

  • Mainstream schools (such as mainstream community schools, voluntary-aided, trust, foundation, or grammar schools);
  • Nurseries (free-standing or part of a community primary school),
  • Special schools,
  • Alternative provision (including Pupil Referral Units); and
  • Post-16 institutions (Further Education colleges and sixth form colleges).

These are regulated by statute, regulations and statutory guidance.

What is the difference between mainstream and maintained schools?

Maintained defines a school/institution by reference to how it is controlled, e.g. most commonly, a school maintained by a local authority (which may happen also to be a mainstream school but it could also be a special school);

Mainstream defines a school/institution not by who controls it but by its provision, and this generally refers to provision other than special schools,
hospital schools, alternative provision and the like.

Mainstream

These schools are funded by Local Authorities. They must follow the National Curriculum and have national teacher pay and conditions. 

There are four main types of maintained schools: 

Community Schools 

These are run by the Local Authority who employ the staff, own the land and the buildings and set the admission criteria – which children and young people can go to the school. 

Foundation Schools and Trust Schools 

These are run by a governing body which employs the staff and sets the admission criteria – which children and young people can go to the school. 

The land and buildings are either owned by the governing body or a charitable trust 

Voluntary Aided (VA) Schools 

These are schools where a foundation or trust, usually a religious body, contributes to the capital costs of the school. The governing body, which is mostly made up of people from the trust or foundation, employs the staff and sets the admission criteria – which children and young people can go to the school. 

Voluntary Controlled (VC) Schools 

These are run by the Local Authority which employs the staff and sets the admission criteria – which children and young people can go to the school. 

A foundation or trust, usually a religious body, owns the land and the buildings and makes up some of the governing body. 

Mainstream schools provide education for most children with special educational needs and/or disabilities (SEND), including those who have difficulty learning to read and write, learning how to manage their behaviour and/or how to listen and communicate.

Schools and the local authority work together so that resources are matched to a child and young person's needs. To learn about how mainstream schools support children with SEND please read SEN Support in Education Settings

Academies

Academies are funded directly by the government, with whom they have a funding agreement. They are not run by the Local Authority and have more control over who they employ, what they pay, school hours, term dates and the curriculum and what is taught. A headteacher oversees the day to day running of the school but academies are overseen by charitable bodies called Academy Trusts. Some academies are part of a group of academies called a Multi-Academy Trust. 

There are three main types of academies: 

Free Schools 

These are new schools that are set up by a group of individuals or an organisation forming a limited company. The company must show the government that there is the demand for the school in that area. 

Standard Academies 

These are usually maintained schools which haven’t been doing well. The DfE arranges for a sponsor for the school to become an academy: sponsors may be businesses, education charities, universities or FE colleges. 

Academy converters 

These are usually maintained schools who are doing well but want to get out of Local Authority control. The governing body sets up the funding agreement with the government. 

Independent

Independent schools (sometimes called private schools) are schools that are not funded or controlled by central government and Local Authority; instead they are funded by way of tuition fees, donations and investments.   

If you choose to go down the private route and your child has an SEN it is important to explore how the school will address their needs. It would be helpful to visit the school, talk to staff and if possible, talk to parents in a similar situation. Children with special needs can succeed in a private school, where the class size is smaller and they can benefit from more one-on-one attention. However, it is important to understand the different legal duty’s Independent schools have to maintained settings. 

How do Independent Settings meet the needs for a child with SEN?

Unlike maintained mainstream settings and independent special schools, the SEN Code of Practice does not apply. This means that the provision for those with SEN can vary greatly from school to school. Many schools will require additional funding from the fee payer in order to offer Special Educational Provision. Independent schools do not have to publish a SEN information report on their website.  Independent schools are subject to disability discrimination legislation including the Equality Act 2010. As part of this, independent schools are required to increase disabled pupils’ access to facilities and to the school’s curriculum.

What does it mean if a school is a Section 41 independent school?

Independent schools do not have the same duties regarding a child or young person’s special educational need (SEN) as maintained schools do. While Independent schools should have systems in place to identify any SEN a child or young person may have, and provide SEN support, they do not have a legal duty to fund any extra provision if required unless they are on the section 41 list (these schools are listed in this link:
Department for Education Independent special schools and colleges Section 41 list

Can I still apply for an Education Health & Care Needs Assessment?

Yes, you can apply for an Education, Health & Care Needs Assessment, as long as your child meets the legal test below:-

  • whether the child or young person has or may have special educational needs (“SEN”); and
  • whether they may need special educational provision to be made through an EHC plan.

If the answer to both of these questions is yes, then the Local Authority must carry out an EHC needs assessment.  This test is set out in the law (section 36(8) of the Children and Families Act 2014). This means these are the only questions the LA should be asking when considering whether or not to carry out an EHC needs assessment.  To learn more about EHC Needs Assessments

Can I name an independent setting in an EHC plan?

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

Some Independent schools and colleges have 'opted in' and are included in the list of schools you can request. View the list of approved independent schools and colleges, known as 'section 41' schools.  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)

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.  For further information on Choosing a school with an EHC plan  and IPSEA Case Law

Who pays the school fees for an independent school?

If your child has an Education, Health & Care plan, it is the local authority’s duty to ensure the provision set out in the EHC plan is made. However, under section 42(5) of the Children and Families Act 2014, the LA do not need to do so if you have made “suitable alternative arrangements”.   

If the independent school is named in Section I of your child’s EHC plan, and there is no other suitable school which your child could attend, it is likely that the LA remains responsible for your child’s special educational provision as set out in Section F of the EHC plan and should be paying the school fees.   

if parents can prove that the independent school in question can meet their child’s needs - and that it would not be ‘unreasonable public expenditure’ - will the LA agree to name and pay for that school on the child or young person’s EHCP.

Sometimes, the LA’s choice of named school (usually a local maintained/state school) can also arguably meet the child’s or young person’s educational needs adequately and more cheaply, so parents then fail to get the LA to pay for the school or the special educational provision required.

If the LA suggested that a different suitable school should be named in the EHC plan, and you chose to send your child to an independent school and pay for it yourself, then this is likely to count as making suitable alternative arrangements, and so the LA have no further duties towards your child in relation to their SEN.   

Grounds for Gaining Funding for a child with an EHC plan

Arguments are also often more successful when parents can evidence that they have already tried to make their child’s placement at a maintained mainstream school work, but this has not happened, even with additional support, despite ability and potential. Some other things which parents successfully argue are:

  • School size - maintained mainstream schools are often larger than independent ones, which may be important for the ability of a child or young person to attend school (for example, they may have organisational or sensory issues);
  • Class sizes - mainstream independent schools usually have smaller classes than their maintained counterparts (so, for example, if a child or young person has attention difficulties, or perhaps a hearing or visual impairment, they may need to be educated in smaller classes);
  • Environmental/peer group – parents sometimes argue that placing a child in a wrong environment/within an inappropriate peer group can have a significant impact on their self-esteem and emotional well-being and evidence that the child needs the social aspect and academic challenge of being in a mainstream school, but also needs environmental/peer group features described above.

Can I ask the local authority to provide contributory funding?

Whilst there is no getting around the fact that there is an increased expense of annual fees for independent schools, parents sometimes successfully persuade an LA to come to a contributory funding arrangement with them, whereby, for example, the LA agrees to pay for the additional SEN provision that they would have had to provide in their preferred maintained mainstream school, on the basis that the parents will then agree to pay for the school fees and transport costs at their preferred independent mainstream school.

This kind of agreement can also be reached before or during an appeal to the Special Educational Needs and Disability Tribunal.

Whilst Tribunal panels cannot order contributory funding arrangements, sometimes, agreements are only reached during the course of an appeal (especially when a Tribunal hearing is looming).

The SEND Code of Practice 2015 says:-

9.134 If the local authority is not satisfied that the alternative arrangements made by the child’s parent or the young person are suitable, it could either conclude that the arrangements are not suitable and name another appropriate school or college, or it could choose to assist the child’s parent or the young person in making their arrangements suitable, including through a financial contribution. But the local authority would be under no obligation to meet the costs of those arrangements.

To read more about  Appealing a School (or school type) named in a plan

Independent Schools (Section 41 Approved list)

What does it mean if a school is a Section 41 independent school?

Independent schools do not have the same duties regarding a child or young person’s special educational need (SEN) as maintained schools do. While Independent schools should have systems in place to identify any SEN a child or young person may have, and provide SEN support, they do not have a legal duty to fund any extra provision if required unless they are on the section 41 list (these schools are listed in this link:
Department for Education Independent special schools and colleges Section 41 list

Why might an independent school choose not to be on the approved Section 41 list?

Under  Section 41 of the Children & Families Act it states 'The Secretary of State may approve an institution under subsection (1) only if its proprietor consents'

To qualify for inclusion, each non-maintained or independent special school must be 'approved' by the Secretary of State for Education. However, schools are not compelled to be approved and can opt out, should they wish.

The "duty to admit" part is about how a school cannot refuse to take a pupil where a parent has named it in an EHCP and a local authority agrees that it is a suitable school?

This means that any independent special school approved by the Secretary of State would be that little bit less independent when it came to controlling its intake. And this is not something that many independent schools are not prepared to accept and have taken the decision, or are considering taking the decision, NOT to seek approval. This would leave them in the same position as they are now with parents having no right to name them on an EHCP.  They could be expressed as a 'preference', as they are now, but that's all.

To Clarify:-

For an independent or non-maintained school that has been approved by the Secretary of State:

  • They will be on the same footing as maintained schools and academies and free schools.
  • Local authorities will make the decision on which school to specify in a plan, taking account of the parent or young person’s preference the views of the school.
  • They must specify the parent or young person’s preference unless it would not be suitable for the child’s age, ability, aptitude or special educational need; or it would be incompatible with the efficient education of other children; or it would not be an efficient use of resources.
  • If a local authority names a school in a plan it must admit the child.

For an independent or non-maintained school that has not requested or received approval by the Secretary of State:

  • Parents will be able to make representations to the LA that they want the school named in the plan
  • A local authority will not be under the same duty to meet the request as for 'approved' schools.
  • But LAs do have the general duty under section 9 of the Education Act 1996 that children should be educated in accordance with parents’ wishes, as well as the new duties under section 19 of the new Act
  • The SEND Tribunal will still be able to require the naming of an independent school not on the approved list.
Grammar Schools

A Grammar School is a type of state school that only grants places to children deemed to have a higher level of intellectual ability. Many grammar schools have been absorbed into the comprehensive schooling system across the UK, but there are plenty of grammar schools still open today.

What is the difference between a grammar school and a private school

The difference is that a grammar school is the only state-owned school that is allowed to accept and reject pupils based on intellectual ability, typically determined by the 11+ exam. On the contrary, a private school is not state-owned and funded; they charge high fees to operate with an advertised high level of teaching.

Special Schools

Special schools provide an education for children with a special educational need or disability.  There are many different types of special school, but essentially, they all educate children whose needs cannot be met within a mainstream setting, and whose parents or carers have agreed to or requested a special school placement.  A child must have an Education, Health & Care plan in place for a special school setting.  

Classes in special schools are usually smaller, and teaching is geared to the pupils’ individual needs and abilities. Children’s progress is closely monitored in all areas, not just educational attainment, and staff generally have specific skills and understanding – gained through qualifications or experience – of pupils’ needs. 

Essex Special schools cater for the following categories of need. These are:

  • Schools for social, emotional and mental health needs (SEMH)
  • Schools for severe & complex learning difficulties & profound and multiple learning difficulties (SLD and PMLD)   
  • Schools for moderate learning difficulties (MLD)
  • Schools for speech, language and communication needs (SLC)
  • Schools for physical and neurological impairments (PNI)

Some special schools are generic, catering for a wide range of needs and other special schools specialise in a particular area, such as autism or speech & language.

What is an Independent Special School?

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.  View the list of approved independent schools and colleges, known as 'section 41' schools.

You can read more about Choosing a school with an EHC plan

The Essex Local Offer offer a search tool for Special Schools

Pupil Referral Units

Pupil Referral Unit is for children who need to be educated out of school, often because they have been excluded. They have the same legal status as schools in some respects but do not have to teach the national curriculum. 

Local Authorities must provide education for children and young people who have been permanently excluded or who are too ill to attend school for some time. Schools have a duty to provide education for children and young people from the sixth day of a fixed term exclusion. Sometimes schools also need off-site education to help children and young people improve their behaviour or deal with their anxiety. Alternative provision may be used for the education of these children and young people.  You can learn more about Alternative Education Provision