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When a child has an EHCP, a parent can name the school of their choice which gives them priority over many other applicants. 

The SEND Code of Practice 2014 is clear about the rights of the family to request a particular school, nursery, academy or non-maintained special school on their EHCP. In addition, FE or 6th form colleges can be named or an independent school or specialist college from an approved list. 

These schools must accept the child unless they provide evidence the placement will be either unsuitable to the child or incompatible with the efficient education of others or the efficient use of resources. The named school and its local authority must be consulted and faith-school admission considerations don’t override these rights. 

In some circumstances, children can also attend more than one school or college, e.g. a child at a specialist college taking a post-16 course at a FE college. 

The SEND requirements state that schools must take ‘reasonable steps’ to prevent incompatibility within a mainstream setting and decisions about the school placement should not be taken lightly but should be based on the individual circumstances of each case and decided in consultation with the parents. 

Getting SEN funding for private schools 

In order to get a placement for their child at an independent mainstream school funded by a local authority (LA), parents have to get an EHCP (Education, Health and Care Plan). 

Only then, if parents can prove that the school in question can meet their child’s needs - and that it would not be ‘unreasonable public expenditure’ - will the LA agree to name and pay for that school on the child or young person’s EHCP. 

Sometimes, the LA’s choice of named school (usually a local maintained/state school) can also arguably meet the child’s or young person’s educational needs adequately and more cheaply, so parents then fail to get the LA to pay for the school or the special educational provision required. 

Splitting the bill 

Parents can still be successful though. Whilst there is no getting around the fact that there is an increased expense of annual fees for independent schools, parents sometimes successfully persuade an LA to come to a contributory funding arrangement with them, whereby, for example, the LA agrees to pay for the additional SEN provision that they would have had to provide in their preferred maintained mainstream school, on the basis that the parents will then agree to pay for the school fees and transport costs at their preferred independent mainstream school. 

This kind of agreement can also be reached before or during an appeal to the Special Educational Needs and Disability Tribunal. 

Whilst Tribunal panels cannot order contributory funding arrangements, sometimes, agreements are only reached during the course of an appeal (especially when a Tribunal hearing is looming). 

Grounds for gaining SEN funding 

Arguments are also often more successful when parents can evidence that they have already tried to make their child’s placement at a maintained mainstream school work, but this has not happened, even with additional support, despite ability and potential. Some other things which parents successfully argue are: 

  • School size - maintained mainstream schools are often larger than independent ones, which may be important for the ability of a child or young person to attend school (for example, they may have organisational or sensory issues); 
  • Class sizes - mainstream independent schools usually have smaller classes than their maintained counterparts (so, for example, if a child or young person has attention difficulties, or perhaps a hearing or visual impairment, they may need to be educated in smaller classes); 
  • Environmental/peer group – parents sometimes argue that placing a child in a wrong environment/within an inappropriate peer group can have a significant impact on their self-esteem and emotional well-being and evidence that the child needs the social aspect and academic challenge of being in a mainstream school, but also needs environmental/peer group features described above. 

Effects of the SEND Code of Practice 

Sometimes LAs tell parents that it is unlawful for them to make contributory funding agreements, especially now we have moved to a new SEND framework with EHC plans. 

However, there is nothing in the Children and Families Act 2014 or the new SEND Code of Practice (CoP) 2015 which prevents an LA from reaching a contributory funding arrangement with parents. 

In fact, the CoP actually makes reference to such arrangements being possible! 

The CoP even states that, if the LA is not satisfied that the parents’ alternative arrangements are suitable (for example, if increased specialist support is needed to be brought in for the child, such as weekly occupational therapy sessions), then the LA can ‘choose to assist the child’s parent or the young person in making their arrangements suitable, including through a financial contribution’ (although they are under no obligation to do so). 

Personal Budgets and Direct Payments 

Another way parents can achieve similar results to a contributory funding arrangement, might be for them to request that any quantifiable support in an EHC plan is set out as a Personal Budget (PB) by the LA. PBs are where the LA equates the provision in a child’s EHC plan to a sum of money. PBs are only available under EHCPs. 

Parents can request (though the LA are not obligated to provide) Direct Payments, where the LA provides the money for their child’s support directly to the parents and they are then responsible/free to choose and source the support. Whilst parents cannot spend this on school fees, they could fund the school fees privately and then use the Direct Payments to fund specialist support (eg speech and language or occupational therapy) for their child. 

This would then effectively achieve a similar result as a contributory funding arrangement, without having actually reached one with the LA. 

With thanks to Douglas Silas, director, and Suzannah Lindon-Morris, a SEN specialist, at Douglas Silas Solicitors

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