A School challenging the LA when they are named in your child’s EHCP

Section 43 of the Children and Families Act 2014 says that all schools, must admit a child if their EHCP names the school. This applies to independent schools and institutions if the school or institution has received approval from the Secretary of State under section 41 Children and Families Act. (A search for the school on Edubase/Get Information about Schools will normally reveal if it has received Section 41 approval).

Children and Families Act (CAFA) states:

39 Finalising EHC plans: request for particular school or other institution

(3) The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.

Effectively this means that Surrey Local Authority can direct the following types of schools to admit a child with an EHCP:

CAFA 38 Preparation of EHC plans: draft plan

(3) A school or other institution is within this subsection if it is—

(a) a maintained school;

(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) an institution approved by the Secretary of State under section 41 (independent special schools and special post-16 institutions: approval).

When you ask for a particular school to be named in your child’s EHCP, Surrey must consult with the school along with the any School(s) that they feel can meet need. If the school responds that it does not feel able to support the child then Surrey could still name that School, but it is relatively unlikely.

When responding to a consultation, a school should base their response on the following:

CAFA 39 Finalising EHC plans: request for particular school or other institution

(4) This subsection applies where:

(a) the school or other 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 other institution would be incompatible with:

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

These are the only reasons a school can give a negative response (i.e. not offering a space). For example, being ‘full’ is not a reason in law.

Challenging being named in an EHCP  

In some cases, even with a negative response, the LA can still decide to name that 38(3) school on an EHCP and the school will have a statutory duty to admit that child or young person.

This applies equally to children who are below or have ceased to be of compulsory school age (for the purpose of the statutory maximum infant class size, children with an EHCP admitted outside the normal admission round are ‘excepted pupils’ and do not count towards the class size).

The school/academy can challenge being named in the EHCP by making a complaint to the Secretary of State that Surrey acted unreasonably by doing so, seeking a direction to Surrey to resolve the matter. However, the duty to admit will remain unless the EHCP is amended.

As a parent, we understand that it can feel like a very uncomfortable situation to be in.

Making a referral to the Secretary of State

Section 496 Equality Act 1996 contains a general provision allowing any person (including the Governing Body of a maintained school and the proprietor of an Academy) to complain that a Local Authority has acted unreasonably with respect to the exercise or performance of their duties (including SEN duties).

“Unreasonableness” has been defined by the Courts as acting in a way in which no reasonable Local Authority would have acted in the circumstances.