How to get an independent school in your child's Statement/EHCP

A new case, Essex County Council v TB, provides further clarification about what the Tribunal will look at when you are seeking an independent school in your child’s Statement or EHCP.

The starting point is the law of s9 Education Act 1996. Although the Children and Families Act 2014 has come into force, this did not remove s9 Education Act 1996. As such, this will be relevant for both Statements and EHCPs when it comes to independent schools.

S9 requires that local authorities (and the Tribunal) shall “have regard” to parental preference when making arrangements for a child’s education so far as that does not mean that the local authority will incur unreasonable public expenditure in doing so.

This case relies on some well-known principles but highlights a point which was made, in passing, in a Court of Appeal judgement in 1999. It acts as a good summary to the law.

The following are important points to remember if you are seeking an independent school:

• Costs calculations are crucial. Parents and the local authority must be absolutely certain of the costs of one another’s placement. It will normally be the local authority that presents the details of costs to the Tribunal so parents must be willing, and prepared, to challenge these if appropriate;
• The independent school must carry additional benefits. These do not need to be just about education, but must relate to the child’s special educational needs (e.g. peer groups, socialising etc.);
• If the independent school is more expensive that the mainstream school, the additional benefits are crucial. The more the expense, the more additional benefits would need to be ‘found’. These benefits will also need to be fundamental to the appropriate provision of education.
• The independent school must be at least as suitable as the placement that the local authority are proposing, even if the independent school works out to be cheaper than the mainstream school (as a result of in-house therapies etc);
• If the Tribunal finds that both schools are ‘adequate’, but the mainstream school is ‘more’ suitable, the mainstream school will likely be named. This is because the Tribunal will be expected to go with what it considers more suitable; and
• Cases have found that a costs difference of £5,000 is very unlikely to be viewed as being ‘unreasonable public expenditure’, provided that the independent school is suitable.

It is worth noting though that s19 Children and Families Act 2014 does require that children are educated to achieve their best possible outcomes. Unfortunately, this will only apply to children with an EHCP or supported by the ‘new’ regime of Additional SEN Support; it will not apply to children with a Statement of SEN.