Choosing a setting

Choosing a school or setting

Children and young people (YP) with an Education, Health and Care Plan (EHCP) do not go through the normal admissions system if your child/YP has an EHCP.

Parents or young people have a legal right to request that a school or college is named in an EHCP or express a preference for an independent school, college or other institution.

 

Requesting a nursery, school or college

You can request a setting of your choice when:

  • you are getting an EHCP for the first time 
  • if the EHCP is being amended after an annual review 
  • if the EHCP is being amended at any other time (for example, if your child or young person move settings and the EHCP needs to be amended)

 

Naming a school or college in an EHCP

When you receive the draft EHCP, the name of the setting in section I will be left blank. You will be asked for your preference (choice) of setting, which may be a mainstream or specialist setting.

You have the right to express a preference for any setting in the following categories:

  • a maintained school
  • a maintained nursery school
  • an academy
  • an institution within the further education sector
  • a non-maintained special school
  • an approved independent school or college on the government’s ‘section 41’ list

The LA must consult with your chosen setting, this normally involves sending the setting a copy of the EHCP and reports. The setting will decide if they can meet your child/YP’s needs, the final decision to name a setting in the EHCP is the LA’s.

The LA must name your preference if it is:

  • suitable for your child’s age, ability, aptitude and special educational need
  • not incompatible with
  • the efficient education of other children
  • the efficient use of resources (too expensive)

 

If the setting is named on the EHCP, then they must give your child/YP a place.

If you would like a setting that is completely independent, you can ask the LA to consider it. This is called ‘making representations’. The setting will need to agree to offer your child/YP a place and you will have to prove that no other setting is suitable.

Sometimes the LA may not name the setting you want, this could be because:

  • your child/YP doesn’t fit the profile of the children/YP for whom the setting caters, for example in terms of level of learning disability
  • taking another child/YP would impact on the education of others in the setting. The LA cannot refuse simply because the setting is “full” – they must give reasons why the education of other children/YP would be affected if the setting admitted your child/YP as an additional pupil
  • your child/YP has challenging behaviour that would impact on other children/YP
  • the setting you would like is very expensive and the LA considers that your child/YP’s needs can be met in a school that costs less

 

Right to mainstream education

There is a general right in law to a mainstream setting if this is what you would prefer.

 

The LA can only name a special school against your wishes if:

  • admitting your child to a mainstream school would be detrimental to the efficient education of other children/YP

and

  • there are no steps that the setting or the LA can take to overcome that disadvantage

The LA cannot refuse mainstream on the grounds that it is ‘not suitable’.

 

 

Moving schools or post 16 education with an EHCP (phase transfer)

If your child/YP is moving schools or leaving school to go to college, the LA must ask your preference for the next stage of education. Options should be discussed at the annual review prior to transfer. The annual review should take place in the autumn term of their final year at the current setting.

There are set legal timescales for the LA to issue an amended final EHCP naming the new setting for entry in September. These are:

  • 15th February for phase transfers 
  • 31st March for post 16

 

Challenging decisions

If the LA does not name the setting you would like you have the right to mediation and appeal to the First Tier Tribunal for Special Educational Needs and Disability. You will need to do this within 2 months of the LA’s decision or one month from the mediation certificate, whichever is later.  

 

Contact us

If you need more help or advice, please contact us