The law regarding the educational placement to be attended by the child or young person is not complicated, but is often an area of dispute.
On receipt of the Draft EHCP, there is an opportunity to express a preference for a type of and the name of an educational placement.
For those of school age, this could be a mainstream school, a Resource Base within a mainstream school, a special school or possibly an independent school.
For early years children this could be a nursery provider or a special school.
For young people this could be a FE College, a specialist college, a training provider or an apprenticeship.
The LA must comply with that preference unless:
- the placement is unsuitable.
- admitting the child or young person would be incompatible with the efficient education of others with whom s/he would be taught.
- admitting the child or young person would be incompatible with the efficient use of resources.
There is a legal presumption for mainstream education.
If the preference is for a mainstream placement, this cannot be refused on the grounds of resources and is highly unlikely to be refused on the grounds of suitability.
If a special school is preferred, then all the criteria above will be considered. If a preference for a specific special school is made, it must be suitable/appropriate for the child’s needs.
The LA must consult with the preferred school(s) and can consult with others deemed suitable.
Where a preferred school is agreed to be suitable/appropriate, it may be the case that the school is said to be ‘full’. The relevant criterion is that of ‘incompatibility with the efficient education of other pupils.’
The LA – and if necessary, subsequently a Tribunal – will consider the situation as to whether admitting an additional child would lead to the inefficient education of others. The needs and behaviour of existing pupils, the physical dimensions of teaching areas and access to resources can be relevant factors, although consideration should also be given to steps that could be taken to overcome any barriers to admitting the pupil. An assertion alone that the school is ‘full’ is insufficient to establish ‘incompatibility’.
If an independent school is preferred, it is likely that resources will be a significant factor, as the LA is likely to choose a less costly, suitable school instead.
There is no legal requirement regarding educational placements being local to the home address. Distance from home to education is not taken into account. However, the cost of any home-to-school transport that may be required can be considered if looking at the efficient use of resources.