Appeals and mediation

Appealing for an independent setting

If you want to make representations for an independent setting at an appeal, the Local Authority (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, Children and Families Act (CAFA) 2014).

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 below apply:

(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.

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, if you wish to request a wholly independent setting as part of your representation on the draft Education, Health and Care Plan (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 an EHCP 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 a firm 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.