As any young person or parent of a child with an Education, Health and Care Plan (‘EHC Plan’) will no doubt be aware, the question of which placement will be named in section I is one of great importance. Whilst most parents and young people will be conscious that they can express a preference that a certain placement be named under section I of an EHC Plan, what specific rights they have to elect a placement is often far less clear. This has given rise to several myths and misunderstandings, some of which have been perpetuated by local authorities themselves, as to what a placement of preference is and, crucially, what a local authority should do once a parent or young person identifies a placement of parental preference.

When an EHC Plan is in draft stage or at the Annual Review, a parent of a child or young person will have the opportunity to request that the local authority name a specific placement under section I. A parent or young person needs to understand the type of placement they are requesting, their right to request a placement, and the obligations of the local authority once a placement of preference has been identified. I will seek to clarify these important points within this article.

Section 38 – Children and Families Act 2014

As a starting point, Section 38(3) of the Children and Families Act 2014 states that a parent or young person has the right to request that any one of the following placements is named under section I of an EHC Plan –

(a)   A maintained school (special or mainstream),

(b)  a maintained nursery school,

(c)   An Academy,

(d)  An institution within the further education sector in England,

(e)   A non-maintained special school,

(f)    A section 41 approved independent school.

If the placement requested to be named under section I falls into one of the above categories, section 39 of the Children and Families Act 2014 states that the local authority must send a consultation to this placement and must ensure that it is named under section I unless one of the following three exceptions apply –

(a)   The school or institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b)  The attendance of the child or young person at the requested school or institution would be incompatible with –

i.         The provision of efficient education for others, or

ii.         The efficient use of resources

Here, the law is very clear. If a parent or young person requests that an educational placement listed under section 38(3) be named under section I, the local authority has an obligation to name this placement unless one of the three exceptions listed in section 39 applies.

Where a placement under section 38 is requested, the starting point is that it should be named in section I of the child or young person’s EHC plan. The onus is placed upon the local authority to evidence that one of the three exceptions outlined in section 39 applies, and the placement of preference should consequently not be named. Importantly, the onus is not on the parents or young person to demonstrate that one of these exceptions does not apply when a placement is requested; this is a somewhat common misconception.

It is not uncommon to see the three exceptions listed within section 39 misapplied by local authorities. There is a clear legal threshold that a local authority must meet in order to satisfy these exceptions and often, the local authority fails to produce sufficient evidence to establish one of them. The relevant legal threshold and how it should be established is apparent from the case law. For example, if a local authority refuses to name a placement requested by a parent or young person simply because it is more expensive than their proposed placement, this is not a correct application of the ‘efficient use of resources’ exception. The law requires the local authority to put forward evidence to demonstrate that the child or young person’s attendance at the placement of preference would be incompatible with the efficient use of resources. Just because a requested placement is more expensive, this does not automatically satisfy the test. Within the case of Essex CC v SENDIST [2006] EWHC 1105 (Admin), (which applied to the old regime of Statements of Special Educational Needs which has now been replaced by EHC plans), the High Court held that even when a local authority deems the additional cost of a requested placement to be ‘inefficient’, the local authority must balance this additional cost against any benefits the placement may bring to the child or young person.

Another example of misapplication of the exceptions, or a failure for an exception to be sufficiently established, is often seen in relation to the ‘provision of efficient education for others’ exception. The case law is clear that it is not sufficient for a local authority to refuse to name a placement of preference merely because the school is over its designated capacity. Within the case of NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC), it was confirmed by the Upper-Tier Tribunal (Administrative Appeals Chamber) that there needs to be “some clear identification” of the impact a child’s admission will have on the education of those already attending the setting, and that this is a “strong test of incompatibility”.

Both of these cases demonstrate that there is an explicit legal threshold that must be met by a local authority for them to successfully rely upon an exception listed within section 39 and therefore refuse to name a school of parental preference.

Non-section 41 approved independent placements

When a parent or young person requests a non-section 41 approved independent placement (whether that placement be mainstream or special) the law is far less clear in outlining the obligations of the local authority in responding to such a request. Such placements are not listed under section 38 of the Children and Families Act 2014, which means that the statutory right to request such a placement to be named under section I, as we have explored above, will not apply. Crucially, this means that there is no legal obligation for a local authority to send a consultation to a non-section 41 approved independent school, and no legal obligation for the placement of preference to be named in section I.

However, this does not mean that a local authority may apply a blanket policy against consulting with non-section 41 approved independent placements. Whilst there is no specific statutory provision in relation to a request for a non-section 41 approved independent school to be named under section I of an EHC Plan, a local authority’s wider statutory obligations will still apply and they must still give due consideration to such a request.

Section 19 of the Children and Families Act 2014 places a duty upon local authorities to have regard to the views, wishes and feelings of a child and their parent, or a young person. Whilst section 9 of the Education Act 1996 confirms that local authorities shall have regard to the general principle that children are to be educated in accordance with the wishes of their parents, it is clear that this is only in so far as to do so would be compatible with –

•            The efficient instruction and training of others, and

•            The avoidance of unreasonable public expenditure.

It is important to note that section 9 does not impose a duty on a local authority to name a placement of parental preference in the same way that section 39 of the Children and Families Act 2014 does. Within the case of IM v London Borough of Croydon [2010] UKUT 205 (AAC) the Upper Tribunal confirmed that a local authority should approach section 9 in three stages –

(a)   “Are both school’s appropriate to meet the need? A school that is not appropriate cannot be named.

(b)  If they are both appropriate, which is the school preferred by the parents? Unless (C) applies that school must be named.

(c)   Would naming the school preferred by the parents be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so the school suggested by the local education authority must be named.”

Therefore, whilst there is no specific statutory right for a parent or young person to request a non-section 41 approved independent school is named in section I of an EHC plan, a local authority should still act in accordance with their wider statutory duties and consider this request. It is important to be aware that a non-section 41 approved independent placement does not have a duty to admit a child in the same way that a placement listed within section 38(3) does. If such a placement does not make an offer of placement, neither the local authority nor the First Tier SEND Tribunal can direct them to admit the child or young person.

Requesting that a specific placement is named in section I is a decision of great importance that any parent of a child or young person with an EHC Plan is likely to face at least once. In selecting their placement of preference, it is crucial that they are aware of the type of placement that they are seeking, and the local authority’s obligations in relation to this.