Schools and EHCPs - What happens if a school says they are full?

We are regularly asked what parents can do if a school requested to be named in an EHCP has said they are full. To answer this, there are different criteria to consider, depending on the type of school. So, we first need to look at the different types of settings:

• Local authority-maintained nursery school
• Local authority-maintained school/academy/free school (mainstream or special)
• Non-maintained special school
• Further education/sixth form college
• Independent school/independent specialist college which has been approved by the Secretary of State under Section 41 of the Children and Families Act 2014

A search through ‘Edubase’ can help clarify the type of placement you are considering. 

Any of the above requested to be named in Section I must be a) consulted by the local authority and, b) named as placement, unless the placement would be unsuitable for the child’s SEN or the child attending the placement would be incompatible with:

• The provision of efficient education of their peers whom they would be taught with, i.e. the pupils in the school, or;
• The efficient use of resources i.e. the total costs.

Focusing on the former bullet point, this is the ground that schools may rely on when saying they are full/over their Pupil Admission Number (PAN)/have no spaces in that year group etc.

The local authority can only rely on this exception if it can show there are no reasonable steps possible to prevent this incompatibility. Schools saying they are full is not sufficient – they have an active duty to evidence this incompatibility. In practice, this can be difficult to show.

It is important to note that standard secondary school admissions criteria do not apply when there is an EHCP in place and a potential school says they are full. The following requirements are irrelevant in this instance:

• Suitability: Age, ability, aptitude or SEN. Note that the question of suitability for the child’s SEN should have already been considered during the school consultation process.
• Children who are Looked After & Children who were Previously Looked After.
• Siblings already attending (if criteria 1 is also satisfied)
• Faith (evidenced based on admissions requirements of the school (if criteria 1 is also satisfied)
• Distance order to home address, measured as a straight line (if criteria 1 is also satisfied).

If the local authority or SEND Tribunal goes on to name the setting in Section I, the school must admit the child or young person. Parents can legally raise this with the setting initially and, ultimately, the local authority potentially through a complaint/Judicial Review.

What about non-s41 approved independent schools/colleges?

The above list covers a large proportion of settings, but there are also independent schools and specialist colleges not approved by the Secretary of State under Section 41 of the Children and Families Act. Parents can request one of these settings to be named in Section I, and the local authority must consider this request. Local authorities need to have regard to the general principle under Section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes, unless:

• This would be incompatible with the efficient instruction and training, i.e. of the other pupils, or;
• The cost of placement would amount to unreasonable public expenditure, i.e. by comparing the total costs to the public purse, including transport, of both the parents’ preferred placement versus the cost of the local authority’s placement.

Even if none of the above exceptions apply, non-s41 settings do not have a duty to admit a child or young person. There is therefore a different responsibility on the local authority to be satisfied that the setting would admit the child or young person before naming in Section I. If the setting does not agree to admit them, then the local authority or the SEND Tribunal, if the decision is challenged, cannot enforce this through a Section I appeal.

The Boyes Turner Education Team can help at whatever stage you are with your EHCP and can be contacted on 0118 467 6547 or via senexpertsolicitors@boyesturner.com