SEN Journey: The EHCP

Yes, you can ask for an independent special 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. The LA does not have the same duty to consult with other independent schools, however they must consider the request. Although they are not under the same duty to name the preferred independent placement, 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 compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure.

Some LAs put pressure on parents to sign the EHCP. There is no requirement in law for this to happen, nor indeed is there a requirement for the parent to agree the EHCP at all. Even if the parent has said that they agreed it (which sometimes happens when the parent has been unable to obtain proper advice), that does not prevent a tribunal appeal.

This is not the case. The LA is responsible, under Section 42 of the Children and Families Act 2014, for ensuring that the provision set out in Section F of the EHCP is being delivered. If the school is not delivering the provision, you need to make the LA aware - we suggest email rather than phone - and ask it to remedy the situation with the school immediately so that it can meet its statutory duties under the Act.  If the LA fails to do this, parents are able to consider judicial review. Be aware, however, that the LA may decide to deal with this by naming a different school.
That is not accurate. Any conditions that impact the child or young person's ability to learn should go into Section B.  For example, a speech and language delay might be identified by a health professional, in this instance, a speech and language therapist, but as the delay impacts the ability to communicate socially and educationally, this is an educational need and belongs in Section B. If a child or young person's mobility issues impact their ability to access a classroom, and/or require them to have support to do so, this should also be listed in Section B.
Whilst we know that young people's needs may still be part of their education, health and social care presentation, an EHCP does not cover a young person whilst at university. However, the EHCP should not be ceased until that young person has transitioned to university, and it is confirmed that provision is no longer required and that outcomes have been met.
Parents can request the local authority consults with schools that are specified in Section 38 (3) of the Children and Families Act 2014. Those are:
  • 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 (independent special schools and special post-16 institutions: approval).
If you are asking the LA to consult with one or more, that are within these categories, the local authority must consult with those schools.  If the local authority is advising you it can only consult with one school, or it cannot consult with specialist schools, or that school can only be a section 41 school, this is not correct. It may be their policy but the law is clear and it cannot refuse to consult.  That doesn't mean it will choose to name it. But they must consult with the school you request under Section 39 (2) of the Children and Families Act 2014.