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A topic that we are frequently asked about is whether the local authority must consult a particular independent school that a parent might elect within a special needs case. The situation is different in England and Wales although often education departments claim that the duty to educate within a mainstream school means that it does not have to consult a particular school during a statutory assessment which the parents might elect preference for, if it is in the private sector.
The answer to this question requires consideration of the law in England and Wales separately
(a) The Law in England
Before completing a statutory assessment and finalising an education and health care plan a local authority does indeed have a duty to consult an independent school that is elected as a preference by a parent . The relevant provisions are found in section 39 of the Children and Families Act 2014.
39 Finalising EHC plans: request for particular school or other institution
(1)This section applies where, before the end of the period specified in a notice under section 38(2)(b), a request is made to a local authority to secure that a particular school or other institution is named in an EHC plan.
(2)The local authority must consult—
(a)the governing body, proprietor or principal of the school or other institution,
(b)the governing body, proprietor or principal of any other school or other institution the authority is considering having named in the plan, and
(c)if a school or other institution is within paragraph (a) or (b) and is maintained by another local authority, that authority.
(3)The local authority must secure that the EHC plan names the school or other institution specified in the request, unless subsection (4) applies.
(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.
Therefore it is quite clear it must consult if the parents ask. However there is no duty to name it in the plan as can be seen within subsection (4). However nevertheless this requirement helps parents not least due to the fact that often such independent schools might have conducted detailed and rather robust assessments addressing points that might not have even been considered by the local authority during its own assessment. This might include for example a view from different kinds of therapists. This might strengthen a parent argument if the case went to the tribunal.
(b) The situation in Wales
Whilst the law in Wales still affords a parent the right to express a preference and to have that preference complied with wherever possible, the SEN code of practice states this;-
8:97 Parents may choose to place a child with a statement in an independent school (whether or not approved under section 347) or a non-maintained special school at their own expense. If parents choose to make such provision for their child, the LEA must be satisfied that the school is able to make special educational provision for the child that meets their special educational needs before they are relieved of their duty to arrange provision in an appropriate school. The LEA is not required to specify the name of a school in Part 4 of the child’s statement where they are satisfied that the child’s parents have made suitable arrangements but they must, in those circumstances, state the type of provision. Parents should not be treated as having made suitable arrangements if the arrangements do not include a realistic possibility of funding those arrangements for a reasonable period of time. The LEA are, whether or not a school is named in the statement, still under a duty to maintain the child’s statement and to review it annually.
The duty is not the same as applicable in England but of course a failure to even consult might render the local authority vulnerable to criticism. This is because the Education Act 1996 obliges the local authority to consider parental representations to include any evidence submitted by, or at the request of the child’s parent. See regulation 11 of The Education (Special Educational Needs) (Wales) Regulations 2002)
The Law in Wales is however due to change with the ALN Act however note what this will say.
55 Conditions applicable to securing additional learning provision at independent schools
(1)A local authority may not exercise its functions under this Part to secure that a child or young person is educated at an independent school in Wales unless—
(a)the school is included in the register of independent schools in Wales, and
(b)the local authority is satisfied that the school can make the additional learning provision described in the child’s or young person’s individual development plan.
51Duty to favour education for children at mainstream maintained schools
(1)A local authority exercising functions under this Part in relation to a child of compulsory school age with additional learning needs who should be educated in a school must secure that the child is educated in a mainstream maintained school unless any of the circumstances in paragraphs (a) to (c) of subsection (2) apply.
(2)The circumstances are—
(a)that educating the child in a mainstream maintained school is incompatible with the provision of efficient education for other children;
(b)that educating the child otherwise than in a mainstream maintained school is appropriate in the best interests of the child and compatible with the provision of efficient education for other children;
(c)that the child’s parent wishes the child to be educated otherwise than in a mainstream maintained school.
(3)A local authority may not rely on the exception in subsection (2)(a) unless there are no reasonable steps the authority could take to prevent the incompatibility.
(4)Where a child’s parent wishes his or her child to be educated otherwise than in a mainstream maintained school, subsection (2)(c) does not require a local authority to secure that the child is educated otherwise than in a mainstream maintained school.
(5)Subsection (1) does not prevent a child from being educated in—
(a)an independent school, or
(b)a school approved under section 342 of the Education Act 1996 (c. 56),
if the cost is met otherwise than by a local authority.
Therefore, unless a parent is going to pay for it themselves there is no right to education within the independent sector unless it is in the child’s best interests. Those best interests will need to be proven and any dispute surrounding the issue will still need to be resolved in the special needs tribunal.