Can an Independent School Be Named in Section I of an EHCP

Understanding Section 41 of the Children and Families Act 2014

As specialist education law solicitors, we regularly help parents and professionals navigate the complex world of Education, Health and Care Plans (EHCPs). One of the most common questions we get asked is whether an independent school can be named in Section I of an EHCP. The simple answer is yes, but it also depends on whether the school is approved under Section 41 of the Children and Families Act 2014 (CFA 2014). Below, we break down what this means and how it affects parental choice in EHCPs.

What is Section 41 of the Children and Families Act 2014?

Section 41 of the CFA 2014 allows the Secretary of State for Education to approve certain independent schools and specialist post-16 institutions for the EHCP process. Schools and colleges that gain Section 41 approval voluntarily agree to be treated similarly to maintained schools, academies, and further education institutions when it comes to EHCPs.

In practice, this means that Section 41 approved institutions must:

• Admit a child or young person if the school is named in Section I of an EHCP, unless there are exceptional reasons not to.
• Appear on the list of approved Section 41 settings published by the Department for Education (DfE), which is updated regularly.
• Follow the legal framework set out in the CFA 2014, including obligations around special educational needs (SEN) provision and rights of appeal to the First-tier Tribunal (SEND Tribunal).

When Can an Independent School Be Named in Section I of an EHCP?

Whether an independent school can be named in an EHCP depends on whether it has Section 41 approval or not.

1. If the Independent School is Section 41 Approved:

Local authorities must name a parent’s or young person’s preferred Section 41 school in an EHCP unless one of the following applies (which is the same criteria for maintained schools and nurseries, academies, FE institutions and non-maintained special schools):

• The school is unsuitable for the child’s age, ability, aptitude, or special educational needs.
• The placement would have a negative impact on the efficient education of other pupils.
• The placement would be an inefficient use of resources.

If none of these exceptions apply, the local authority is legally required to name the Section 41 school in Section I of the EHCP.

2. If the Independent School is Not Section 41 Approved:

If a parent or young person wants a non-Section 41 independent school named in an EHCP, the local authority is not automatically required to agree to this. However, they can still name the school if they deem it appropriate.

One key rule to be aware of is that local authorities and the Tribunal cannot name a non-Section 41 independent school in Section I of an EHCP unless the school has officially offered a place. Unlike Section 41 schools, non-approved independent schools are not legally obligated to admit a child just because they are named in an EHCP. Parents who want a non-Section 41 school named in an EHCP should ensure that the school has confirmed it is willing to offer a place.

Parents may also need to demonstrate that no other suitable placement is available, that the independent school meets the child’s needs, and that the cost of the placement doesn’t constitute unreasonable public expenditure.

Challenging a Local Authority’s Decision

If a local authority refuses to name a parent’s preferred independent school in an EHCP, the decision can be appealed to the First-tier Tribunal (Special Educational Needs and Disability).

The Tribunal process involves submitting an appeal and providing evidence to show why the Local Authority’s named setting would not be suitable. This might include expert reports, witness statements, and professional assessments demonstrating why the placement at an independent is necessary. The local authority will also present its case, and an independent Tribunal panel will make a legally binding decision.

How We Can Help

Taking on the Tribunal process can feel overwhelming, but our specialist education law team is here to support you at every stage. We provide expert legal advice, help prepare strong appeal documents, and represent families at Tribunal hearings to give them the best chance of success. Our extensive knowledge of EHCP regulations and case law means we can help you build the best possible case to secure the right educational placement for your child.

If you are facing difficulties getting your preferred independent school named in your child’s EHCP, get in touch with us today to discuss how we can assist you on 0333 202 7175 or email education@hcbgroup.com

Conclusion

Section 41 of the CFA 2014 plays a crucial role in deciding whether an independent school can be named in an EHCP. While Section 41 approved schools must admit children when named in an EHCP, non-approved independent schools are not under the same legal obligation. Parents considering an independent school should check its Section 41 status and, if it is not approved, ensure that the school is willing to offer a place and that strong supporting evidence is in place.

As education law specialists, we’re here to help parents navigate this process, understand their rights, and secure the best possible outcome for their child’s education. If you need guidance on securing a suitable placement, don’t hesitate to reach out to our team on 0333 202 7175 or email education@hcbgroup.com