Naming a school on an EHCP: how it actually works and what to ask for

What Section I actually is

Section I of an EHCP is the section that names the school or other educational setting your child will attend. Once a school is named in I, the LA has a legal duty under section 43 of the Children and Families Act 2014 to admit the child.

Section I creates a real, enforceable obligation. Unlike a standard school place applied for through the local authority admissions process, a Section I placement is statutorily required. A mainstream school cannot refuse on grounds of oversubscription or capacity; the LA must secure the placement. (CFA 2014, s.43. See References.)

This is why getting Section I right matters. The plan can have perfect Section B and Section F, but if I names the wrong school, the provision in F doesn't reach your child.

What you have a right to request

The right of request is set out in section 39 of the CFA 2014 and is broader than most parents realise.

You have a right to request any of:

• A maintained mainstream school (including community, foundation, voluntary aided/controlled).
• A maintained special school (mainstream or specialist).
• An academy or free school (mainstream or specialist).
• A non-maintained special school (NMSS) on the DfE-approved list.
• An independent school approved under Section 41 of the CFA 2014 (the published list of independent special schools).
• A 16 to 19 academy or college of further education.

The right is to request. The LA then either consults the school and names it, or refuses on one of the two narrow grounds set out below. The LA cannot refuse on grounds outside those tests.

You can also request an independent school not on the Section 41 list (a school that is private and not specifically DfE-approved). The route is different and harder: see the section on independent specialist schools below.

The only two grounds for refusal

The LA can only refuse your preferred school on one of two tests under section 39(4) of the CFA 2014.

Test one: Unsuitability. The school is unsuitable for the age, aptitude, ability or special educational needs of the child.

Test two: Incompatibility. The attendance of the child at the requested school would be incompatible with either:

• The efficient education of others (the other children at the school), or
• The efficient use of resources (a financial test).

That is the entire legal framework. If the LA's refusal letter cites anything outside these tests, the refusal is legally weak and ripe for appeal. (IPSEA, on Section I refusals. See References.)

What does not count as a ground for refusal

Common LA arguments that have no legal weight on a Section I decision.

• “The school is full.” Not a lawful ground in itself. A mainstream school's published admission number does not apply to Section I placements. The LA can name a school that is at or beyond its standard PAN (Published Admission Number).
• “The school says it can't meet need.” Not the school's decision. The school is consulted; the LA decides. Schools have to provide reasons that map to the two statutory tests.
• “We don't usually name [type of school].” LA policy is not law. The statute is.
• “You live outside the catchment.” Catchment areas apply to mainstream admissions. They do not apply to Section I placements for children with EHCPs.
• “The transport would be too expensive.” Transport cost alone is rarely enough to meet the “inefficient use of resources” test. Case law is clear that the LA must weigh the cost against the parent's statutory right.
• “There's a closer suitable school.” Suitability of an alternative is not a ground for refusing your preferred school. The question is whether the preferred school meets the tests.

The placement consultation process

The LA consults schools as part of issuing or amending an EHCP. The process has a defined shape.

1. Draft EHCP issued. The LA sends you the draft. You have 15 days to comment, including stating your preferred school.
2. LA consults schools. The LA writes to the schools named in your preference (and sometimes its own preferred placement) attaching the draft plan and asking whether the school can meet the child's needs. Schools have 15 days to respond.
3. Schools respond. The response often includes whether the school feels it can meet need, capacity considerations, and any concerns. A school saying “cannot meet need” is information for the LA, not a final decision.
4. LA decides. The LA names a school in the final EHCP, applying the two statutory tests.
5. Final plan issued. If you disagree with the named school, you have 2 months from the date of the final plan to register an appeal.

What to prepare to support your preference

A specific, evidenced case for your preferred school is the single biggest predictor of success.

1. Visit the school. Twice if you can. Get the visit dates in writing. Note staff observations about your child's likely fit.
2. Get a letter from the school stating whether they believe they can meet your child's needs based on the provision in draft Section F. A supportive school letter is gold.
3. Map provision against the plan. For each piece of provision in Section F, write a short note explaining how the preferred school will deliver it.
4. Address each statutory test directly. Your case should explain why the school meets the child's needs (suitability), why the placement wouldn't harm other children (incompatibility test one), and why the cost is reasonable in the context of the child's needs (incompatibility test two).
5. Anticipate the LA's argument. If you suspect the LA will argue inefficient use of resources, get cost data for both your preferred school and the LA's suggested alternative. The cost differential is often smaller than presented when both options are fully costed.

Independent specialist schools

Naming an independent specialist school is harder, but regularly achieved. The route is well-trodden, with the right evidence.

For Section 41-approved independent schools (the DfE list), your right of request operates the same way as for any other school: section 39 of the CFA 2014 applies, the LA must consider, and refusal must be on one of the two statutory tests.

For independent schools not on the Section 41 list: you do not have the formal section 39 right. You can still request the school. The LA can name it if it accepts the case that the school is the only one that can meet the child's needs, but the test is harder. In practice, this route is most often used:

• For children with profound or complex needs that no maintained or NMSS school can meet.
• Where the family has exhausted maintained and Section 41 options and can show evidence of unsuitability.
• On appeal to the SEND Tribunal, where independent specialist placements are sometimes ordered.

The IPSEA-recommended approach: where you want an independent specialist school, build the evidence base systematically. Independent EP assessment, professional reports, school letters, costed proposals. Take legal advice if possible (SEN solicitors have particular expertise here, and legal aid is sometimes available for complex EHCP cases).

If the named school refuses to admit

A maintained school named in Section I cannot lawfully refuse to admit the child. The duty under section 43 of the CFA 2014 is absolute.

Where a school named in I is refusing to admit, your route is:

1. Email the school citing section 43 of the CFA 2014 and ask for the legal basis for refusal in writing.
2. Contact the LA. The LA has the duty to secure admission and must intervene.
3. If non-compliance persists, the route is judicial review or a complaint to the Department for Education. IPSEA holds detailed guidance. (IPSEA, schools refusing to admit. See References.)

If the LA refuses your preference

You have a right of appeal to the SEND Tribunal under section 51 of the CFA 2014.

Section I appeals follow the same procedural framework as other EHCP appeals: 2-month deadline from the date of the final plan, mediation certificate required, hearing typically 5 to 10 months later. See our piece on EHCP refused or appealing for the procedural detail.

On a Section I appeal, the tribunal applies the same two statutory tests. They will hear evidence from both sides and decide. Settlement before hearing is common; many LAs concede Section I cases once they prepare for tribunal, particularly where the parent's case is well evidenced.

What to do this week

Three things.

1. Identify the school you want. Visit it this term if you haven't. Ask whether they would support naming. Get this in writing.
2. Read IPSEA on Section I. Their pages on choosing a school are the clearest UK guidance, with template letters.
3. State your preference in writing. When the draft EHCP arrives (or with the next Annual Review), name your preferred school formally. The LA cannot consider a preference you have not stated.