In many cases, it is unwise to appeal only against Section I - the nursery, school or college. If you want a different school it is probably because the school your child currently attends is not meeting their needs.  In which case, Section B (description of your child's special educational needs) and Section F (special educational provision to meet the needs under Section B) will also need to be updated or amended.  

 

Please see Appeal against Sections B and F of an EHC plan for information about Sections B and F of an EHC plan.   If your appeal has already been registered against Section I, see here for information about using the 'Request for Changes' system to ask the Tribunal to amend your grounds of appeal to include an appeal against Sections B and F.

 

Stating your parental preference for a particular school.  

The parental right to choose a particular school depends on the 'type' of school you wish your child to attend.

 

You have the right to request a particular school, college or other institution of the following type to be named in Section I of your child's EHC plan providing the placement is a:

• maintained nursery school
• maintained school and any form of academy or free school (mainstream or special)
• non-maintained special school
• further education or sixth form college
• independent school or independent specialist college (where they have been approved for this purpose by the Secretary of State - known as Section 41 schools or colleges)

The criteria for refusal

The local authority must comply with your preference and name the school or college in the EHC plan unless:

• it would be unsuitable for the age, ability, aptitude or SEN of the child or young person, or
• the attendance of the child or young person there would be incompatible with the efficient education of others or
• it would be an inefficient use of resources.

If your appeal is about a placement at an independent school (one that is not on the Section 41 approved list) then you have to rely on 'Section 9 of the Education Act 1996' which states that Local Authorities should consider parental wishes regarding school placement so long as the school is appropriate for the child's needs and does not represent an inefficient use of public resources.  

 

This means that you (and not the Local Authority) have to prove that the independent school you have chosen is:

• an appropriate placement in terms of your child's needs
• either the same or less expensive that the school/placement named by the local authority.

For information about how to obtain information about Costs and how they are calculated see here.

 

Things to consider

First of all, read the above guidance about the parental preference for a particular school.

 

Mainstream versus Special School.

In some cases, the Local Authority will have named a mainstream school whereas you have nominated a special school. In this type of appeal the Local Authority has to show why a mainstream school can meet your child's needs.

 

Look at the Evidence section of this website.  If the Local Authority has issued an EHC plan, look carefully at the Appendices listed under Section K of the EHC plan. If this appeal is being made following a Review of your child's EHC plan, have a look at the reports submitted as part of the review process.  

 

Is the mainstream school your child currently attends saying that it can no longer meet your child's needs?  Do you have any professional support for your view that your child needs to attend a special school? If so, you are beginning to build a good case for a special school.

 

In most cases, you will need to appeal against Section B (Special Educational Needs) and Section F (Special Educational Provision) as these sections will probably need changing because of your child's need to be in a school where all the teachers are trained in teaching pupils with special educational needs, where the class sizes are small, where therapy can be provided on-site etc.  You will need to show evidence of this.

 

Special School versus Mainstream

In this type of appeal, the Local Authority has named a special school but you want your child to attend a mainstream school.

 

If your appeal is against the original EHC plan issued by the local authority, have a careful read of the Appendices (listed under Section K).  What evidence is the Local Authority using for Sections B and F? 

 

In most cases, if your child has behavioural difficulties, the Local Authority is likely to be relying on the argument that the inclusion of your child in the mainstream school you have chosen would be 'incompatible with the efficient education of others'.  In other words, the inclusion of your child is going to impact on the other children in the class.  However, the Local Authority is expected to also consider the steps that could be taken to reduce or remove that incompatibility.  In some cases, this step may not have been taken, or has not been considered in full.  You may be able to argue that 1:1 Teaching Assistant support or specialist training would enable your child to be included in a mainstream school.  

 

Mainstream versus Mainstream

In many cases, the Local Authority will name the mainstream you have chosen.  However they may have also added an additional paragraph under Section I to say that it is the Local Authority's view that your child's needs can be met in a local or nearer school and that therefore the parent is responsible for providing transport for the child to the school they prefer.

 

This is a common issue.  Some Local Authorities try to argue that, because they have named the school the parent prefers, the parent cannot appeal against Section I. This is incorrect. Parents have the right to appeal against the content of Section I in order to ensure the additional paragraph is removed.

 

In this type of appeal, while the legal 'onus' rests on the Local Authority to prove that one of the three criteria for refusal listed above applies, you should do research of your own. In most cases, this type of appeal will be about the provision of transport. If your child is unable to travel independently or cannot use the school bus service, the Local Authority will be arguing that the cost of a taxi means the placement represents an inefficient use of public resources.  

 

In the first place, you need to concentrate on showing why the nearer school cannot meet your child's needs.  Have another careful read of the Appendices. It may be, for example, that your child needs a school environment that is highly structured, or has previous experience in meeting the needs of children with the same or similar medical condition/diagnosis.

 

Read the Evidence section.  It is likely you will need to amend Sections B and F to reflect the specialist nature of your child's needs and the type or level of provision (including experience, or school environment etc.).  

 

With regard to the 'inefficient use of public resources' then it is wise to do your own research about Costs.

 

Maintained day special school versus residential special school

In this type of appeal you are seeking a residential placement in a residential special school and the Local Authority has named a local special school under Section I of your child's EHC plan.

 

If the residential school is a Section 41 school, then the Local Authority has to show their named school can meet your child's needs AND that the school you are seeking to have named is an 'inefficient use of public resources'.  

 

If the independent residential school is not a Section 41 school, then the legal onus will be on you, as the parent, to show that:

• the special school named by the Local Authority cannot meet your child's needs
• the school of your choice is the nearest school that can meet your child's needs

OR

• that the school of your choice will not involve an inefficient use of public resources.

 

Whether or not the school is approved under Section 41, costs are likely to be a key issue.  In this type of appeal you are unlikely to be able to show that the placement you are seeking is less expensive than the school named by the Local Authority. Therefore you will need to concentrate on showing why the school named by the Local Authority is unable to meet your child's needs.   

 

Legislation:

Section 37 of the Children and Families Act 2014 and Regulations 11 and 12 of the SEND Regulations 2014.

 

SEN Code of Practice (2015), Chapter 9.

 

How to Appeal