Naming an Independent School

“If an independent school is named in section I, then the LA must pay any fees payable in respect of education or training provided for the child or young person at that school, institution or place in accordance with the EHC plan (section 63 CAFA 2014).”

N v North Tyneside Council [2010] EWCA Civ 135: Where a Statement or an EHC plan identifies special educational provision, the LA has an absolute obligation to ensure that it is provided. It is not open to the LA unilaterally to change the Statement as and when they thought that was appropriate.

Section 42 Duty to secure special educational provision and health care provision in accordance with EHC Plan

(1) This section applies where a local authority maintains an EHC plan for a child or young person.

(2) The local authority must secure the specified special educational provision for the child or young person.

(3) If the plan specifies health care provision, the responsible commissioning body must change the specified health care provision for the child or young person.

(4) "The responsible commissioning body", in relation to any specified health care provision, means the body (or each body) that is under a duty to change health care provision of that kind in respect of the child or young person.

(5) Subsections (2) and (3) do not apply if the child's parent or the young person has made suitable alternative arrangements.

(6) "Specified", in relation to an EHC plan, means specified in the plan.

The SEND Code:

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 duly 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.

Section 9 of the Education Act 1996:

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 and local 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.