Choosing/Changing a School

The law is complex regarding choice of school for children with special educational needs. We can advise on the best way of securing the parents preferred choice of school for their child either through negotiation with the LA , the naming of the school in Part 4 of the Statement and/or appealing to the Tribunal ( SEND ) .We will advise on the evidence already available and whether additional evidence should be gathered either from school records and professionals already involved with the child or from independent experts

We offer workshops for parents at Transition times and advise on the most effective means of obtaining a change of school.

Key Rights for Parents

The Education Act 1996 provides parents with the right to express a preference for a school for their child. This right operates as a general principal of law, however there are exceptions that may apply.

Different considerations are relevant if the parent wants:

•   Mainstream School
•   Special School
•   A Maintained School
•   A non maintained or Independent School
•   A Residential School
•   Education Otherwise than at School
•   Flexi Schooling

•   Home Education 

For a child with a Statement of Special Educational Needs , if the parents want :

•  A maintained school ; Schedule 27 (3) of the Education Act applies .

Schedule 27 (3) states

(3)       Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless—

(a)       the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b)       the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

 Thus the LA MUST name the parents choice of school unless the LA can prove that (a) and/or ( b) applies. The onus of proof is on the LA to show that one of these qualifiers apply

•   A mainstream maintained school . Schedule 27 (3) and S 316A EA 1996 applies

As above Schedule 27 (3) applies . However if one of the qualifiers seems to enable the LA not to name the parents preferred choice of the school , the LA must go on to consider s 316A of the Education Act . This strengthens a parents right to express a preference for mainstream maintained education as it states

(3)       If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with—

(a)       the wishes of his parent, or

(b)       the provision of efficient education for other children.

(5)       A local education authority may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.

(6)       An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility

 Thus this removes the consideration of efficient use of resources or suitability of the school to the child's needs and says that the only reason that mainstream maintained education can be refused if the parents want it is if the child's presence at the school is incompatible with the efficient education of the other children and there are NO reasonable steps that the LA can take to remove the incompatibility . Resources MAY be considered when the LA considers what are " reasonable steps "

•  A maintained special school ; Schedule 27 3) applies

• An independent or non maintained special or mainstream school ; S 9 Education Act 1996 applies

s 9 Education Act states :

Pupils to be educated in accordance with parents' wishes

 In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall 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.

For parents the 2 essential matters to understand here are

1.  The LA cannot overrule an independent school and name them in Part 4 of the Statement without their consent ; thus an independent school has to OFFER a place to the child ; ie consider that the child's presence is " compatible with the provision of efficient instruction and training " AND

2.  The LA can refuse to name an independent school , even if the school has  offered a place , if it involves significantly more money than a different placement that the LA  identifies  that the LA  considers can meet the child's needs ; ie if placement at the parents chosen independent school involves " unreasonable public expenditure "

However if the parents can prove that the  LA nominated school cannot meet the child's needs the Independent or non maintained placement should be named . A crucial issue to determine therefore is whether the provision proposed by the LA is appropriate to meet the identified needs of the child. Only if this is proved should the LA or Tribunal  name  this school  instead of a more expensive independent school  preferred by the parents. As Sedley LJ confirmed in the Oxfordshire case, ‘where the state system simply cannot provide for the child’s needs, there will be no choice: The LEA must pay the cost’.

 Following a further judgement , even if the LA’s school is held to be capable of meeting the child’s needs, the parents preferred school should be named in Part 4 of the Statement  unless the cost is disproportionate to the educational advantages of the placement to the child. This involves a consideration of both  the difference in costs between the 2 placements and the educational advantages to the child of attending the parents preferred placement

There is no fixed sum that the Courts or the LA consider to be " disproportionate ". This has to be argued on the merits of each case

Likewise , if there is no significant cost differential between placement at the parents preferred school and the LA nominated school,  the parents preferred school schould be named . Just because the parents school is a little more expensive does not preclude this being named . A small difference is not necessarily " unreasonable public expenditure " especially when one takes into account educational advantages of the child attending the parents preferred school

• Education Otherwise than at school ; s 319 and s 9 of the Education Act applies      

(1) Where a local education authority are satisfied that it would be inappropriate for—

(a) the special educational provision which a learning difficulty of a child in their area calls for, or

(b) any part of any such provision,to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

(2) Before making an arrangement under this section, a local education authority shall consult the child’s parent.

This enables LAs to name Home programmes ( eg ABA, VB, Son Rise ) or Education Otherwise than at school in Part 4 of a Statement . However a LA will consider a range of issues before doing this ; eg "the child's background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child's educational provisions; the child's reaction to education provisions, either at a school or elsewhere; the parents' wishes; and any other particular circumstances that apply to a particular child"

Frequently parents find that LAs are very reluctant to fund this type of provision and name Home based Education or Education Otherwise than at school in Part 4 of a child's statement. These cases frequently end up in the Tribunal