Can I name a specialist school on my child's EHCP?

The right to a preference

Section 38 of the Children and Families Act 2014 gives you the right to express a preference for a school for your child's EHCP. The schools you can express a preference for are listed in s.38(3) and include:

• Mainstream maintained schools (community schools, voluntary schools, foundation schools).
• Maintained special schools.
• Academies (mainstream and special).
• Free schools (mainstream and special).
• Non-maintained special schools.
• Section 41 approved independent special schools (a specific list maintained by the Department for Education).
• Further education colleges and sixth-form colleges (for post-16).

If your preference is in any of these categories, the council must name it in Section I of the EHCP unless they can refuse on one of the two grounds below.

The two grounds the council can refuse on

Section 39(4) sets out exactly two grounds on which the council can refuse to name your preferred school:

1. The school would be unsuitable for the age, ability, aptitude or special educational needs of your child.
2. The attendance of your child at the school would be incompatible with the efficient education of others, or the efficient use of resources.

Those two grounds are the only ones the law allows. “We don't usually fund that” is not a ground. “Other children in the area go to a closer school” is not a ground. “We have a similar resource at School X” is only a ground if the council can show, in evidence, that funding your preferred school would be an inefficient use of resources compared with the alternative.

The “efficient use of resources” ground is the one the council typically reaches for when your preferred school is more expensive than its alternative. The Tribunal tests this carefully: the council has to show the additional cost is disproportionate to the educational benefit, not merely that the school is more expensive.

How to name your preference

Two routes, depending on where you are in the process:

• If a draft EHCP has been issued, you have 15 days to respond. Use Section I of the draft to name your preferred school. Write a short letter explaining why the school is suitable (your visit notes, the school's prospectus, any conversation with the head about what they'd offer your child).
• If you're at the annual review and considering a change of school, name the preference in your written parent contribution and again at the meeting. The council then has 4 weeks to decide.

The council will consult the school you've named. The school has 15 days to respond. If the school says it can meet the needs and has a place, the council usually has to name it.

Independent special schools (not on the Section 41 list)

If the specialist school you want is independent and not on the Section 41 approved list, the rule is different. You can ask the council to name it (under s.39(5) and SEND Code paragraph 9.83), but the council is not under the same duty to do so. The council can name an unlisted independent school if it agrees it's the right placement, but it isn't required to.

In practice, parents seeking an unlisted independent school usually need to:

1. Build the case that the council's proposed placement cannot meet the child's needs.
2. Show that the independent school can meet them.
3. Show that the cost is justified by the educational benefit.

Most cases reaching this point end up at the SEND Tribunal. The Tribunal can direct the council to name an independent school where the evidence supports it.

If the council refuses your preference

If the final EHCP names a school other than your preference, you can appeal Section I to the SEND Tribunal within 2 months of the final plan. The appeal turns on whether the council's refusal stands up against the s.39(4) grounds. See the sibling answer “What do I do if my EHCP application is refused?” for the appeal route.

This page is general information, not clinical or legal advice.