As a solicitor specialising in special educational needs (SEN) law, I regularly support families navigating the Education, Health and Care Plan (EHCP) process. One of the most challenging decisions parents face is choosing the right school placement—especially when the only suitable option is a wholly independent specialist school that is not approved under Section 41 of the Children and Families Act 2014.
This blog is written for parents who find themselves in this increasingly common situation, often due to the lack of places in maintained specialist schools.
Why parents are turning to independent schools
Across England, many local authorities are struggling to meet the growing demand for specialist placements. Maintained special schools and academies are frequently oversubscribed, leaving parents with little choice but to look at independent schools that are not Section 41 approved.
These schools may offer the tailored support, therapeutic input, and specialist teaching that a child needs—but securing a place through the EHCP process involves navigating a more complex legal route.
Your right to request a school
When you receive a draft EHCP, you have the legal right to request that a particular school be named in Section I. This includes:
- Maintained schools and academies
- Non-maintained special schools
- Independent schools on the Section 41 list
- Wholly independent schools (not Section 41 approved)
However, the legal tests differ depending on the type of school.
Legal tests for wholly independent schools
If the school you wish to name is not Section 41 approved, the local authority (LA) is not under a duty to name it unless certain conditions are met.
Firstly, the school must have offered your child a place. The Local Authority cannot direct a Wholly Independent School to take your child, like they can for other types of schools. Therefore, it is imperative that you have communications with your intended placement, and obtain an offer of a place for your child.
Secondly, you must show that this school is the only school that is able to meet your child’s needs. If you are able to show this, then the Local Authority must name your preferred school, irrelevant of the cost of the placement.
However, if the Local Authority can show that an alternative placement, for example, at a maintained special school, could also meet your child’s needs, then the cost of the placement needs to be considered. You will need to show that the placement you propose does not constitute unreasonable public expenditure.
Unreasonable public expenditure is not an entirely clear phrase, however, you must show that the cost of the placement at the Wholly Independent School is not unreasonably more than the other suitable options, or that the additional cost is justified by your child’s needs and the provision offered by the school.
The costs calculations in respect of these matters can be complicated, as it is important to consider not only the flat cost of the placement, but the cost of transport, and conversely the savings that could be made on in house specialists such as SALT or Occupational Therapists.
Evidence is key
It is really important when considering the above test, to secure evidence which shows the intended school can meet your child’s needs, and that the other available options cannot.
In this respect, detailed consultation responses from the schools and even statements from the schools SENCo or headteachers can be useful, especially when they have met your child, and can clearly explain why they feel their school would be suitable. It is also vital that you do not forget to consider the costs of each of the placements, should this become necessary.
Conclusion
Choosing a wholly independent specialist school is not just a matter of preference—it’s often a necessity driven by the lack of suitable maintained options. While the legal tests are more demanding, they are not insurmountable. With the right evidence and support, parents can secure the placement their child truly needs.
If you’re facing this situation and need help preparing your case or understanding your rights, please don’t hesitate to get in touch.
How FJG can help
Our dedicated family law team is here to offer compassionate advice and practical legal solutions. Whether you need help securing protective orders, navigating family home disputes, or ensuring the safety of your children, we are committed to supporting you through this challenging time.
Sam Howlett is a Solicitor in our Family team advising clients in Special Educational Needs law, and a broad range of family matters, including divorce, finances and children cases, as well as having experience in child protection issues and Social Services.
If you have any queries on the above subject, please do not hesitate to get in touch with Sam on 01206 217588 or complete our online enquiry form.