EHCPs and school choice: what family lawyers need to know when parents disagree

However, in relation to what school they will attend, for children with an education health and care plan (‘EHCP’) there can be an additional layer of complexity.

In this briefing, legal assistant Max Charman explains that ultimately, it is neither parent’s decision which school is named in an EHCP and that it is up to the local authority’s (‘LA’) or, where there is an appeal, the First-tier Tribunal to decide.

An EHCP is a legal document issued and maintained by the LA in which the child resides. It sets out the child’s education (section B), health (section C), and social care (section D) needs, as well as the provision required to meet them. It also names the type of school the child requires, such as a mainstream or specialist placement (section I).  In the vast majority of cases, it also names the specific school to be attended by the child. This can be any type of school, including state-funded or independent.  Significantly, once an EHCP is issued, the LA has a statutory obligation under s42 Children and Families Act 2014 (‘CAFA 2014’) to secure the educational provision specified in the EHCP (section F). It has a separate legal duty to put into place the social care provision (section H). It must also fully fund the school placement named, including ordinary independent school fees (s63 CAFA 2014). The responsible commissioning body, usually the integrated care board, must arrange any health provision (section G).

For some children it may be inappropriate to attend a school, in which case the special educational provision specified in their EHCP can be delivered by way of a package of education otherwise than in a school (‘EOTIS’) (s61 CAFA 2014).

When a child’s first draft EHCP is issued or upon subsequent annual review and decision to amend it, the parents, together or individually, have a right to request or express a preference for (depending on type) the school that they would like to be named in section I (placement) of the EHCP. There are only 15 days from issue of a draft EHCP or draft amended EHCP for the parents to do so. This leaves very little time for recourse to mediation or family court proceedings. The LA will typically also consult with additional schools it considers may be suitable, including ones that the parents have not expressed any interest in. 

The LA must then issue a final amended EHCP naming the type of and usually a specific nursery, school, or post-16 institution. Whilst the LA must apply the relevant legal test (s39 CAFA 2014 and/or s9 Education Act 1996) to this decision, including parental preference, suitability, costs, and compatibility with the efficient education of other pupils, it is the LA’s decision alone what school is ultimately named. 

There are currently in excess of 21,000 appeals to the First-tier Tribunal every year, many of them challenging the school named. In an appeal, the First-tier Tribunal stands in the LA’s shoes and makes the decision for it. This means is that only an LA or a First-tier Tribunal panel can decide what school is named in an EHCP. If the LA or the First-tier Tribunal are not persuaded that either or both parental preferences are suitable, they cannot be named. 

So, whilst parents of children without EHCPs who cannot agree which school their child should attend may have this issue decided via a Specific Issue application in the family court, the situation for a child with an EHCP is more nuanced. The family court does not have the power to direct a local authority to make changes to an EHCP, including to what placement is named, or to require the First-tier Tribunal to exercise its functions in a particular way (SG v Denbighshire CC [2016] UKUT 460 (AAC)).

In practice, if one or both parents are unhappy with the school named in the final EHCP issued by the LA, they can appeal to the First-tier Tribunal. They do not require the family court’s permission to do so, even where the child is the subject of a care order (Re: M (a child) [2007] EWCA Civ 1550). Sometimes, the First-tier Tribunal will allow both parents separately as well as the LA to put forward their preferred school, and it will apply the relevant legal tests to decide between which of the three options which should be named. Placements may be ruled out due to unsuitability, incompatibility with the efficient education of other children, or cost, i.e. being more expensive than suitable options being put forward by the other parent or the LA and where there are no additional advantages to justify the difference in cost.