Clarity on the naming of independent/non-maintained placements on EHCPs

LB of Hillingdon v SS and Others (SEN): [2017] UKUK 250 (AAC)

The Children and Families Act 2014 (CFA) introduced a system by which the Secretary of State can approve independent special and special post-16 placements to enable them to be requested to be named in an Education, Health and Care Plan (EHCP). These are known as section 41 (s41 CFA) approved schools and colleges.

Before the introduction of s 41 schools and colleges, parents had always been able to request an independent / non-maintained school under s9 of the Education Act 1996. The problem is that the Education Act only applies to children and young people up to 19 years. The CFA can now provide support to young people up to 25 years.

Clarity was, therefore, needed as to whether the CFA permits a non-s41 approved school or college to be requested and named on an EHCP.

A recent  appeal to the Upper Tier Tribunal (UT) has clarified that the naming of schools in Section I of the Education, Health and Care Plan (EHCP) is not restricted to s41 approved independent or non-maintained schools and colleges.

The case, London Borough of Hillingdon v SS and others,  concerned ‘E’ who was 19 years old at the time of the First-tier Tribunal (FTT) hearing which was an appeal against Sections B, F and I of an EHCP. The FTT had decided that Section I should name an independent mainstream school. Hillingdon LA appealed to the UT stating that the FTT had no power to name an independent mainstream school.

Under the CFA, parents and/or the young person are able to name their school/college preference when the LA issues a draft Plan. The CFA states that parents or the young person can ‘request the authority to secure that a particular school or other institution within subsection (3) is named in the plan’. The types of placements that can be expressed as a preference are listed in section 38 (3) CFA. The list does not include independent mainstream placements that are not on the s41 approved list nor does it include non-maintained mainstream placements.

The UT decided that the CFA can be interpreted to include schools or other institutions which are not on the s38 (3) list. There is discussion in the judgment that s38 CFA is not well drafted and could mislead parents or the young person could into thinking that their choice of school or college is restricted to those set out under s38(3).

For the Department for Education’s current list of s41 approved schools and colleges see here.

Read the full decision here – LB Hillingdon v SS and others (SEN) [2017] UKUT 0250 (AAC)