Our child has ASD and anxiety (Yr 7).We are awaiting our draft EHCP. The EP has advised mainstream education with reasonable adjustments. We have lost faith in the school as they refuse to make adjustments and our child is unable to attend due to anxiety. The other mainstreams in our area are much bigger and unsuitable for our child. Would we be able to request an independent mainstream school on our EHCP, which is outside of our LA, on the basis it is a small and calm school which can meet our son's needs?

We want to name a small mainstream independent school in our EHCP, which is outside of our LA. Will the LA have to consider this request? Can they force us to accept a mainstream in our LA? If we pay for the mainstream independent ourselves, would we lose the EHCP?


Ana Stone
12 Nov 2023

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A: SenseCheck

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  • 12 Nov 2023
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    Too fact specific, I can't generalise.:

    Ms Stone, your enquiry is succinct, encompassing several crucial facets. I shall strive to furnish a comprehensive response, with the anticipation that others may contribute to fill any gaps I might inadvertently leave.

    Primarily, it is noteworthy that your child presently lacks an Education, Health, and Care plan (EHCP). Consequently, the absence of this document means that not all your child's special educational needs, nor the provision required to meet these needs, have been identified. Hence, it is understandable that issues persist with school. Therefore, it is imperative to focus on acquiring a thorough and accurate EHCp.

    Secondly, you mentioned that an Educational Psychologist (EP) recommended a mainstream school with "reasonable adjustments." This statement may not align seamlessly, as "reasonable adjustments" pertain to the Equality Act 2010. In any event, the EP's primary focus should be on identifying your child's special educational needs and the corresponding special educational provisions they require.

    I recommend reviewing chapters 8 and 9 of the Noddy Guide, available for download as a PDF here:

    Can I download the Noddy 'No-nonsense' Guide as a pdf?

    Your child is grappling with anxiety, leading it seem to school refusal/ non-attendance. In a mainstream school setting, suitability should not be a factor in determining attendance; instead, all necessary special educational provision must be put in place to make the placement ‘suitable’. If your child's anxiety is linked to factors such as school or class size, this might render the local authority's (LA) chosen mainstream school inappropriate. It could be that you need to obtain additional expert evidence to assist with this determination.

    While not asserting that this is the case, it's worth considering whether, at least temporarily, your child needs to be educated outside a traditional school setting. The Noddy Guide comprehensively addresses this option. See here:

    09.330 Can the LA provide SEP outside of a school or educational institution?

    Regarding the question about paying for a private school, it's crucial to note that the LA should not cease to maintain the EHCP if parents pay private school fees. However, if the LA names their preferred placement in Section I and the parents opt for a private school, self-funding might be viewed as suitable alternative arrangements, relieving the LA of their obligations (see section 42(5) of the Children and Families Act 2014).

    Nonetheless, if the LA agrees that your preferred private school is appropriate, they can name it in Section I and cover the fees. Your challenge is to present a compelling case, either directly to the LA or before the First-tier Tribunal, asserting that your choice of school is the correct one.

    I understand this may be a lot to absorb, but I trust it proves helpful.

    Sean Kennedy

    Sean Kennedy
    Talem Law