Most schools are controlled by the Government in some way, i.e. maintained schools which are controlled by LAs or Academies which are controlled by the Secretary of State. These comprise the majority of schools and other settings in England.

However there are also many schools which are not so controlled and which are broadly referred to as independent schools. It is worth understanding the different types, as these schools often have provision available for children and young people with SEN.

Spaghetti Bridge schools are inspected by Ofsted and all of our schools are rated good or better and we are supported by Local Authorities with our safeguarding responsibilities.

Families still have a right to state preference for placement based on section 9 of the Education Act.

Spaghetti Bridge also have in place rhythms of continued quality assurance to ensure that best practice is maintained and reviewed.

Parents or young people have a right to request the settings (maintained, specialist, section 41)  set out in section 38(3) CAFA 2014.

However, this does not mean that you cannot ask for and argue for a place at an independent setting which is not on that list.

Where parents are making representations for an independent setting, the LA must 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 (section 9 Education Act 1996).

 If a young person is requesting an independent school or college, the LA should consider this as part of their duty to consider the young person’s views, wishes and feelings (section 19 CAFA 2014).

The difference is this: when a parent or young person requests a section 38(3) school or college, the LA must comply with the request unless the limited exceptions outlined above apply. If the LA refuses to name the parent or young person’s choice, the onus is on the LA to prove why it is not possible.

However, when a parent or young person asks for an independent setting as part of their ‘representations’ on the draft EHC plan, the onus is on you to prove that none of the schools the LA is offering can meet the child or young person’s needs, or that the cost of the placement will not constitute unreasonable public expenditure.

Public expenditure includes all the costs to the public purse of the placement, not just those incurred by the LA education budget. This can include social care costs, health costs and any other costs incurred by any public body.

If the parent or young person cannot show this, the LA is under no obligation to look at independent provision. It does not matter that the independent setting proposed is an excellent school and/or better suited to the child or young person’s needs than the school the LA has in mind. LAs are not bound to offer a child or young person with SEN ‘the best’ provision to meet their needs – only what is necessary to meet their needs.

In practice, the most important point to prove is not that the independent setting is better than the LA’s proposed school or college, but that the school or college offered by the LA cannot meet the child or young person’s needs.

Where a parent or young person is requesting an independent setting, they will generally need evidence from a professional as to why the independent setting is the only school or college which can meet the child or young person’s needs.

Additionally, there must be an offer of a place from the independent setting. Unlike the section 38(3) schools listed above, an LA cannot order an independent school to accept a child or young person.

The courts have considered situations in which an independent setting should be named in an EHC plan, and given examples of when a setting would be considered an unreasonable public expenditure. You’d find out about these in case law.