Section I: Placement and its problems part 3

The SEND Code of Practice also has a lot to say about placement emphasising the sequential approach:

9.78 The child’s parent or the young person has the right to request a particular school, college or other institution of the following type to be named in their EHC plan:

  • 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 colleges (where they have been approved for this purpose by the Secretary of State and published in a list available to all parents and young people)

9.79 If a child’s parent or a young person makes a request for a particular nursery, school or post-16 institution in these groups the local authority must comply with that 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 the efficient use of resources

Efficient education means providing for each child or young person a suitable, appropriate education in terms of their age, ability, aptitude and any special educational needs they may have. Where a local authority is considering the appropriateness of an individual institution, ‘others’ is intended to mean the children and young people with whom the child or young person with an EHC plan will directly come into contact on a regular day-to-day basis.

9.80 The local authority must consult the governing body, principal or proprietor of the school or college concerned and consider their comments very carefully before deciding whether to name it in the child or young person’s EHC plan, sending the school or college a copy of the draft plan. If another local authority maintains the school, they too must be consulted.

9.84 The child’s parent or the young person may also make representations for places in non-maintained early years provision or at independent schools or independent specialist colleges or other post-16 providers that are not on the list mentioned at 9.78 above and the local authority must consider their request. The local authority is not under the same conditional duty to name the provider but must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, so long as this is compatible with the provision of efficient instruction and training and does not mean unreasonable public expenditure. The local authority should be satisfied that the institution would admit the child or young person before naming it in a plan since these providers are not subject to the duty to admit a child or young person even if named in their plan.

Where the parental choice is not met the Code advises this:

9.88 Where a parent or young person does not make a request for a particular nursery, school or college, or does so and their request is not met, the local authority must specify mainstream provision in the EHC plan unless it would be:

  • against the wishes of the parent or young person, or
  • incompatible with the efficient education of others

9.89 Mainstream education cannot be refused by a local authority on the grounds that it is not suitable. A local authority can rely on the exception of incompatibility with the efficient education of others in relation to maintained nursery schools, mainstream schools or mainstream post-16 institutions taken as a whole only if it can show that there are no reasonable steps it could take to prevent that incompatibility. Where a parent’s or young person’s request for a particular mainstream school or mainstream post-16 institution has not been met, the school or post-16 institution in question becomes a possible candidate for consideration by the local authority according to the conditions in the above paragraph.

As the case law indicates, a dispute about section I will inevitably have its origins in sections B and F, so all sections are likely to be in play before the First Tier Tribunal.

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