Can we ask a local authority to name an academy in our child’s statement of SEN?

The short answer is yes, but it is not straightforward.

When making (or proposing to amend) a statement of SEN a local authority is obliged to consult parents as to the type (mainstream. special, etc) and name of school that should be specified in part 4 of the statement.

What happens where parents want a maintained school?

Paragraph 3(2) of Schedule 27 of the Education Act 1996 gives parents a specific right to ask for a particular maintained school to be named.

By virtue of paragraph 3(3) the local authority (or SENDIST if there is a dispute and the parents have appealed to the SENDIST) must then name that school unless it is unsuitable for the child, or “the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.” The threshold for incompatibility is quite high.

But even if, for one of those reasons, the local authority or SENDIST decides that the obligation in paragraph 3(3) does not apply, then parents can still get help from section 9 of the Education Act 1996 which  says that “In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.” There’s lots of fairly complicated case law dealing with what that means. Have a look at my Noddy Guide to the Law on Statements of SEN for more details. But perhaps the most important thing is that section 9 does not force the local authority or SENDIST to give parents what they want, it merely requires them to have regard to the general principle which, as above, it sets out.

And if the parents want their child to be educated at a mainstream school (i.e. not a special school), then the local authority (or SENDIST) cannot refuse that request by arguing that mainstream schooling is not suitable for the child.

That does not apply where a parent wants an independent school, such as an academy/free school to be named.

What happens where parents want a maintained school?

Parents can of course ask for an academy/free school. Their request just gets processed in a different way, as follows.

Most importantly, paragrah 3 of Schedule 27 is not in play (because it only applies where parents want a maintained school placement for their child).

So parents are left relying on section 9 of the Education Act 1996, a much weaker entitlement, as explained above.

But there is another problem as well: if a statement of SEN names a maintained school, then the governing body of that school is legally obliged to admit the child whether they like it or not. If the school resists, then parents/pupils can apply for judicial  review to make the school comply. But if the statement names an academy or free school, then it is harder to force the academy or free to school to comply. That can make some local authorities and sometimes the SENDIST less keen to overrule an academy or free school which does not want to take the child in question.

 

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