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• 14 Feb 2022

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  No. Specific rules apply where the parents/young person do not make a CFA2014 s39 request (i.e. a request for a CFA2014 s38(2) school), or their request falls away because it is too expensive or too impactful on others.

  This is, of course, what applies where their request is for an private school which is not a section 41 school.

  By CFA2014 s40:

  “(1) This section applies where no request is made to a LA before the end of the period specified in a notice under section 38(2)(b) to secure that a particular school or other institution is named in an EHC plan.

  (2) The local authority must secure that the plan—

  (a) names a school or other institution which the local authority thinks would be appropriate for the child or young person concerned, or

  (b) specifies the type of school or other institution which the local authority thinks would be appropriate for the child or young person.” 

  Where no request is made, the LA/FTT is not limited in the CFA2014 s40 process of naming a placement in the list set out at CFA2014 s38(3), i.e. it can go beyond maintained schools, academies and section 41 schools. Any other result would (unexpectedly) preclude placements at non section 41 schools for both children and young persons. That would be unexpected because at least for children there is no doubt that section 41 school placements can be ordered (and the answer is not in the operation of section 9 because that does not provide a power to name placements, rather it informs how the CFA2014 s40 power is to be exercised: see LB Hillingdon v SS (SEN) [2017] UKUT 250 (AAC) #43-54 (Hillingdon was granted permission for an appeal to the Court of Appeal but did not in the end pursue the appeal). 

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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