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• 12 Oct 2025

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This answer provides general guidance only and is not legal advice. It summarises relevant principles from the Noddy No-nonsense Guide to SEN Law (March 2025, v18) by David Wolfe KC and Leon Glenister, together with the Children and Families Act 2014 (CFA 2014) and relevant case law.

Individual circumstances differ, and legal advice should be sought where appropriate.
I must emphasise again: This information is provided for general educational and guidance purposes only. It should not be relied upon as legal advice in any particular case.

1. Parents may make private arrangements

Parents are not legally obliged to use the school or college named in an Education, Health and Care Plan (EHCP).

As explained in the Noddy Guide (p. 3, para 02.05):

“The parent can appeal … against the LA’s decision to name that placement. If the appeal fails, it is still lawful for the parent to home educate their child or to send their child to a private school … The obligation on an LA to secure the provision in an EHCP falls away if the child’s parents have made suitable alternative arrangements.”

This reflects CFA 2014, s.42(5) and cases such as X County Council v DW [2005] EWHC 162 (Fam) and Buckinghamshire CC v SJ [2016] UKUT 254 (AAC).
In practice, where parents privately arrange and fund education, the local authority (LA) is not under a duty to deliver or fund the Section F provision while those arrangements are in place.

2. The EHCP does not automatically end when private arrangements are made

Under CFA 2014, s.45(1), an EHCP can only be ceased if
a) the LA is no longer responsible for the young person; or
b) it considers that the plan is no longer necessary.

The Noddy Guide (pp. 75–77, paras 10.02–10.04) states:

“An LA cannot lawfully cease to maintain a plan simply because a young person has come to the end of a particular course, or has moved temporarily out of funded education.”

A privately funded course for a defined period does not, in itself, provide lawful grounds for ceasing an EHCP.

3. The LA must follow the proper procedure before ceasing

If an LA intends to cease an EHCP, it must
a) consult the parents and the current education provider;
b) issue a written “cease to maintain” notice under Regulation 31 of the Special Educational Needs Regulations 2014; and
c) inform the parents of their right of appeal to the First-tier Tribunal (Special Educational Needs and Disability) under CFA 2014, s.51(2)(f).

The Noddy Guide (p. 75, para 10.02) confirms that if an appeal is lodged, “the EHCP remains in force until the Tribunal decision” (reflecting CFA 2014, s.45(4)(b)).

4. Maintaining the EHCP during a privately funded year

In practice, some local authorities agree to continue maintaining the EHCP but leave Section I (placement) blank or annotated to show that the young person is temporarily in parentally arranged education.

This approach aligns with the Noddy Guide, Section I (pp. 43–73), and the Upper Tribunal’s decision in EM v RB Windsor and Maidenhead [2024] UKUT 317 (AAC) para 43 (listed in the 2025 updates, p. xiii).
Where such an arrangement is agreed, the plan can later be reviewed and updated once the young person transitions back to a funded course.

5. When can the local authority pay for a private or independent school?

The LA can name and fund a private or independent school or college in Section I of an EHCP if it is satisfied — or the Tribunal decides — that this is the only suitable placement to meet the young person’s needs.

According to the Noddy Guide (Section 9, pp. 43–73, esp. paras 9.045–9.065, pp. 55–57), a private placement may be funded where
a) it is the only suitable placement;
b) the course qualifies as “education or training” within CFA 2014, s.83(2)–(4) (Noddy Guide, p. 4, para 02.10); and
c) the cost would not amount to unreasonable public expenditure compared with other suitable placements (CFA 2014, s.39(4)).

Two categories apply:
a) Section 41 schools (approved independent special schools or colleges). Parents or young people have a right to request these under CFA 2014, s.38(2)(b), and the LA must name them unless unsuitability, incompatibility, or unreasonable cost is shown.
b) Other independent schools, which the LA or Tribunal may still name and fund, though the presumption in favour of naming does not apply. Evidence must show that no maintained or Section 41 school could meet need.

Recent Upper Tribunal cases cited in the 2025 Noddy Guide updates (pp. x–xiii) — LB Islington v A Parent [2024] UKUT 252 (AAC); AG v LB Brent [2024] UKUT 166 (AAC); TM and SM v Liverpool CC [2024] UKUT 201 (AAC) — confirm that independent placements may be ordered where they are the only realistic means of delivering Section F provision.

If a performing arts foundation course counts as further education or training, the LA may fund it under the EHCP framework. If it qualifies as higher education, it falls outside the scheme.

To explore LA funding, parents should
a) confirm whether the school is Section 41-approved;
b) check that the course qualifies as education or training;
c) gather professional evidence explaining why the placement is the only suitable option;
d) ask the LA to consult the school under CFA 2014, s.39(2); and
e) if refused, consider appealing to the SEND Tribunal, which can order funding if the placement is suitable and cost-effective.

6. Possible practical next steps (general guidance only)

a) Review the EHCP
Confirm that Sections B, F and I are accurate. If an annual review is due, request it before the change of placement (CFA 2014, s.44; Noddy Guide para 04.03).

b) Inform the LA in writing
Explain your intention to fund a one-year performing arts foundation course privately, describing it as a temporary arrangement and asking that the EHCP be maintained.

c) Request that the EHCP be maintained
Ask the LA to keep the plan active but record that the placement is parentally arranged and privately funded (CFA 2014, s.42(5); Noddy Guide para 02.05).

d) Ensure continued recognition of need
Ask that any review or letter confirms continuing SEN requiring an EHCP (Noddy Guide paras 10.02–10.04).

e) Keep the LA informed
Provide brief details about the private course and, where possible, progress reports.

f) Plan ahead for the following year
About six months before the course ends, request planning for the next stage (Noddy Guide para 04.03).

g) If the LA proposes to cease the EHCP
Request written reasons and consider an appeal. The EHCP remains valid until the Tribunal’s decision (CFA 2014, s.45(4)(b)).

h) Keep clear records
Retain all correspondence, minutes and written confirmations.

7. Key Noddy Guide references

a) Para 02.05 (p. 3): Parents’ right to make private arrangements; duty under CFA 2014 s.42(5).
b) Para 02.10 (p. 4): Definition of “education or training”; exclusion of higher education.
c) Section 9 (pp. 43–73): Placement and independent-school funding.
d) Paras 9.045–9.065 (pp. 55–57): LA powers to name and fund private schools.
e) Paras 10.02–10.04 (pp. 75–77): Lawful cessation of EHCPs.
f) Update list (pp. x–xiii): 2024 Upper Tribunal decisions on independent placements.

8. Summary 

In summary, parents may choose to fund a one-year performing arts foundation course privately without necessarily losing their child’s Education, Health and Care Plan (EHCP). While the local authority’s duty to secure the special educational provision in Section F would generally pause during privately arranged education, the EHCP itself would normally remain in place. A local authority may decide to cease an EHCP if it considers the plan is no longer necessary or if it is no longer responsible for the young person, but such a decision can be appealed to the SEND Tribunal — and the plan would remain legally in force until that appeal has been determined. In some cases, the local authority might agree to fund a private or independent school if it accepts, or the Tribunal concludes, that this is the only suitable placement and that the associated cost is not unreasonably high. Parents considering this route should perhaps view the private placement as a temporary step, keep the EHCP under review, and ensure the local authority is kept informed so that the plan continues to reflect the young person’s needs. Maintaining clear communication and written records may help ensure continuity of support when the student returns to publicly funded education.I hope this is helpful and I look forward to reading any other contributions on this subject.

Sean Kennedy.

 



Sean Kennedy

12 Oct 2025

This is helpful

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