As parents you have a right to request the LA name a provision that is listed in the Children and Families Act 2014 (CAFA), section 38(3), however, this does not mean that you cannot ask for or argue for a place at an independent setting which is not on this list:
(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).Children and Families Act 2014, section 38(3).
If you want to make representations for an independent setting at an appeal, the LA must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9 of the Education Act 1996). If a young person is requesting an independent school or college, the LA should also consider this as part of their duty to consider the young person’s views, wishes and feelings (section 19, CAFA 2014).
Summary – when a parent or young person requests a section 38(3) school or college, the LA must comply with the request unless the limited exceptions outlined in CAFA 39(4) apply. If the LA refuses to name the parent or young person’s choice, the onus is on the LA to prove why it is not possible.
However, when a parent or young person asks for an independent setting as part of their ‘representations’ on the draft EHCP, the onus is on you to prove that none of the schools that the LA are offering can meet the child or young person’s needs, or that the cost of the placement will not constitute unreasonable public expenditure.
Public expenditure includes all the costs to the ‘public purse’ of the placement not just those incurred by the LA education budget, for example social care costs, health costs and any other costs incurred by any public body.
If you cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent provision proposed is an excellent school and/or is better suited to your child’s needs than the school the LA wants to name in Section I of the EHCP. The LA are not bound to offer a child with SEND ‘the best’ provision to meet their needs – only what is necessary to meet their needs.
In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet your child’s needs.
When requesting an independent setting, you will generally need evidence from a professional as to why the independent setting is the only school or college which can meet your child’s needs. There must also be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.
The courts have considered situations in which an independent setting should be named in an EHCP and given examples of when a setting would be considered an unreasonable public expenditure.
It is always worth checking whether the independent setting is in fact a section 41 school or a non-maintained special school (NMSS), if it is, it comes within the list in section 38(3), and so then the burden shifts to the LA to show that it is not the appropriate school to name in the EHCP.
Courts have considered situations in which an independent setting should be named in an EHCP, and given examples of when a setting would be considered an unreasonable public expenditure:
Crane v Lancashire County Council  ELR 377: An LA must first establish whether the parents’ choice of placement is more expensive than that offered by the authority. If it is, the LA must make the decision as to whether the additional expenditure involved in meeting the parent’s preference is justified.
Essex CC v the SEND Tribunal  EWHC 1105 (Admin): A parent or young person’s preference can only be displaced on the grounds of being ‘incompatible with the efficient use of resources’ where the extra cost is significant or disproportionate. A difference of between £2000-£4000 was not found to be ‘incompatible’.