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What's the position on school admissions for children with special needs who don't have an Education, Health and Care Plan (EHCP)? And how do you overcome any related obstacles?

If your child has special educational needs (SEN) but does not have an EHCP, then when applying to state schools you will need to go through the normal school admissions process. This means that you will need to apply directly to the admission authority for a school place, which could be either the school, or the local authority on the school's behalf.

What if a school has a place available?

If a state school has a place, it must offer that place on receipt of an admissions application, regardless of whether or not the child has any SEN. However, an application can be refused when there are places available if a child has had two or more permanent exclusions in the last two years.

This does not apply to any exclusion received when the child was below compulsory school age, or to children who have been reinstated following a permanent exclusion.

What happens if a child has difficulty obtaining a school place?

Each local authority must have a Fair Access Protocol, which they should agree with the schools in the area, to ensure that any unplaced children are offered a suitable school place as quickly as possible.

Children with SEN, disabilities or medical conditions without an EHCP, who are having difficulty obtaining a school place, should be included in a Local Authority’s Fair Access Protocol. Whilst this should lead to a child getting a school place, it does not guarantee it will be at the parents’ preferred school.

What happens if there are more applications than places available?

If a school has more applications than places available it must apply its oversubscription criteria to all applications. Some schools will have as a criterion 'medical and social needs' which is usually high priority in allocations.

If your child has a particular medical or social need to attend a specific school, which could relate to any SEN, you could apply under this criterion.

It will be up to the admission authority to decide whether they allow a child to be given higher priority under this criterion. You need to prove that they should. You should state any medical or social needs when you make your application, explain how this is applicable to your school choice, and provide any medical evidence you have to support it.

What if an admission authority refuses a place?

The admission authority can refuse to give higher priority on the basis of a social or medical need. If they do, they would then consider your application in line with the other oversubscription criteria.

Other than to refuse to give you this higher priority, it is unlawful for an admission authority to refuse admission on the basis of a child’s SEN. If an application is refused due to SEN, or you think an admission authority has been unreasonable in refusing an application under ‘social or medical need’, you should seek legal advice. 

Independent schools and SEN admissions

The above regulations apply to state schools only. Independent schools are free to accept or reject pupils as they wish, and have no obligations to accept a child with SEN. However, it will usually state on the school’s terms and conditions that a child’s special needs must be disclosed if known. In fact, to ensure that the school is able to support your child satisfactorily, you should enter into discussions with the SENCo from the outset about how your child’s needs will impact on their learning.  A report from a clinician or educational psychologist will give the school a learning profile and make recommendations for the setting. Many schools will require an EP report or similar be made available as part of the admission process.

With thanks to Samantha Hale, a solicitor with Simpson Millar who specialises in education, community care and public law.

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