Can the LA refuse to consult an Independent mainstream
My LA is refusing to consult a mainstream secondary independent unless I agree to pay the school fees, and they will pay any top up from the EHCP (very little support needed at the moment) my child is mainly SEMH does not want sen in a mainstream but wants to go to a small class size mainstream (independent) LA is refusing, I will appeal but is it lawful to refuse to consult the school? they seem to be using a loop hole by re stating they are not refusing to consult, they will consult if I agree to pay the fees is this lawful?
A: SenseCheck
- 0 Yes
- 0 No
- 1 Other
- 24 Mar 2026
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Other
Too fact specific, I can't generalise.:
Bernie M,
My suggestion would be this.
The LA may be right that it does not have to consult a fee-paying independent “mainstream” school under the usual parental preference rules, because those rules apply to maintained schools, academies, non-maintained special schools and section 41 schools, rather than to an ordinary private “mainstream” school.
However, that does not necessarily end the matter.
The LA is not barred from consulting the school. The point is simply that it is probably not under a duty to do so at this stage. So, if it wanted to, it could still consult the school.
There is also an important difference between what happens now and what may happen on appeal.
At this stage, the LA may be able to refuse to consult under the usual process. But if the matter goes to the SEND Tribunal, the Tribunal is deciding what school should be named in Section I. Where the parent’s preferred school is a private school outside the usual statutory category, the Tribunal may still consider that placement under the wider statutory framework. So the school is not necessarily out of the picture just because the LA refuses to consult it now.
If the school were actually being considered for naming in Section I, it should then be consulted before being named.
On the fees point, the fact that a school is private or more expensive does not automatically mean the parent must pay. The real question is whether naming that school would involve unreasonable public expenditure.
So, put simply:
The LA may be entitled to refuse to consult the school now under the usual parental preference regime, but that does not necessarily determine the placement issue. The LA could still consult if it wished, and if there is an appeal the Tribunal may still consider whether the school should be named in Section I, having regard to the child’s age, ability, aptitude and special educational needs, as well as section 9 and the question of unreasonable public expenditure.
One possible step may be to ask the LA to set out its position in writing, explain why it says it will not consult, and, if the final EHCP has not yet been issued, request that it is issued so that appeal rights can be exercised if needed. Given the legal and procedural issues that can arise in this area, it may also be sensible to seek specific legal advice.
24 Mar 2026
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2 Comments