Securing an Education Health and Care (EHC) plan is a massive milestone for families seeking targeted support. Once the plan is drafted, attention quickly turns to naming the right placement in Section I. Many parents consider attending an independent school (a private or non-maintained setting) to access smaller class sizes or specialised facilities.
However, the rules governing independent placements are completely different from those for state schools. At SEND Family Guidance UK, we want parents to understand exactly how the law applies when requesting a private or independent placement in a child s ehcp, and whether a private school can legally refuse a place.
Understanding the Type of School Matters
Under the Children and Families Act 2014, your legal right to have a preferred choice named in an education health and care plan depends entirely on the type of school.
For maintained schools (local authority funded state settings) and academies, the law creates a strong obligation. If the local authority names a state school or a maintained special school in Section I, the school must admit the child. They cannot refuse.
For independent schools, the rules are split into two clear legal categories:
1. Approved Independent Schools (Section 41)
The Department for Education maintains a list of independent schools and post-16 institutions that have explicitly volunteered to be treated like state schools for the purpose of the ehcp process. These are known as “Section 41 approved schools.”
If you request a Section 41 approved independent school, the local authority has a legal duty to consult them, and the school can only object under strict statutory grounds (such as being unsuitable for the child’s age or ability or being incompatible with the education of other pupils). If the local authority decides to name an approved Section 41 school anyway, that school must admit the child.
2. Non-Approved Independent Schools
If an independent school is not on the Section 41 approved list, they hold all the power. They are completely independent of the standard state admissions rules. A non-approved independent school can refuse to offer your child a place for any reason they see fit, and the local authority has absolutely no legal power to force them to take your child.
The Consultation Process and the Head Teacher’s Input
Before any school is named in a final education health and care plan, a formal consultation takes place. The local authority sends a copy of the draft plan and the accompanying professional reports to the school.
The head teacher and the school’s leadership team will review the documents to determine if they can deliver the specific special educational provision outlined in Section F. For example, if the plan states the child requires weekly speech and language therapy delivered by a qualified therapist, the school must look at whether they have the staff or resources to provide it.
In a non-approved independent school, if the head teacher concludes that the school cannot meet the child’s needs, or if they feel the school is currently full, they can simply decline to offer a place. They do not have to prove their case to the local authority or meet the high legal threshold required by state settings.
Who Pays the School Fees?
If you are looking to have an independent school named in your child’s plan, financial responsibility is a primary concern. The issue of school fees creates two completely distinct pathways:
The Local Authority Pays
Parents can request that the local authority names an independent school and funds the placement. For the local authority to agree to pay the school fees, you must establish that there is no suitable state school option available that can meet your child’s needs. If the local authority can prove that a local state school or maintained special school can deliver all the required support (such as speech and language provision or occupational therapy) at a lower public cost, they will refuse to fund the independent placement on the grounds of “inefficient use of resources.”
The Parents Pay
If the local authority refuses to pay the fees but you still want your child to attend the independent school, you can request that the school is named in the plan on the basis that parents will meet the financial costs. If this happens, Section I will state the name of the school but will explicitly note that parents are funding the placement.
Important Note: If parents fund the independent placement privately, the local authority is relieved of its legal duty to secure the special educational provision in the plan. The legal responsibility to ensure the child receives their therapies shifts entirely to the parents and the chosen school.
Challenging a Decision via the First-tier Tribunal
If your heart is set on a specific independent school and the local authority has refused your request during the ehcp process, your main legal remedy is to appeal to the First-tier Tribunal (Special Educational Needs and Disability).
The tribunal has the power to order a local authority to name and fund an independent school, but only if specific conditions are met.
To appeal to the tier tribunal for an independent placement, you must ensure:
- An Offer is on the Table: The independent school must have formally confirmed in writing that they are willing to offer your child a place. The tribunal cannot name a non-approved independent school if the school itself refuses to accept the child.
- State Options are Unsuitable: You must provide clear evidence that the local authority’s proposed state schools cannot meet your child’s needs. This is usually achieved by analysing the school’s prospectus, policies, and consultation responses to highlight gaps in their provision.
- The Costs are Justified: If the independent school is significantly more expensive than the state alternative, you must prove that the extra cost is entirely justified because the state option is unsafe or incapable of delivering the necessary special educational interventions.
Summary Checklist for Independent Placements
When considering an independent school for a child with a health and care plan, keep these key procedural realities in mind:
- Check if the independent school is on the government’s Section 41 approved list.
- Secure a formal, unconditional written offer of a place from the independent school before attempting to challenge a local authority decision.
- Obtain clear professional evidence (such as independent speech and language reports) confirming that the specific independent placement is the only type of environment that can successfully support your child.
- Review Section F of the draft plan to ensure every single required therapy is clearly defined, as this forms the benchmark against which the suitability of the school will be judged.
Moving Forward with Clarity
Navigating care plans ehcps involving the independent sector requires a careful balancing act between admissions law and education funding rules. While a non-approved independent school holds the absolute right to refuse a child, securing their willing cooperation and a formal offer changes the dynamic entirely, allowing you to build a robust legal case if a tribunal becomes necessary.
At SEND Family Guidance UK, we are dedicated to helping families unpack these complex educational laws. Understanding the distinction between maintained schools and private options ensures you can direct your energy effectively and advocate with total confidence.
