Section I only appeals

This section relates to Section I only appeals for a school that falls under the scope of Section 38(3) of the Children and Families Act 2014 (CAFA) and is for after your appeal has been registered.

Section 38(3):

A school or other institution is within this subsection if it is:

(a) a maintained school;

(b) a maintained nursery school;

(c) an Academy;

(d) an institution within the further education sector in England;

(e) a non-maintained special school;

(f) an institution approved by the Secretary of State under section 41

In this type of appeal, the burden of proof is on the Local Authority (LA) to dislodge the parental preference. They need to do so by evidencing one of the following as contained in Section 39(4) CAFA.

39 Finalising EHC plans: request for particular school or other institution

(4)(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

Whist the burden of proof is on the LA, you must still submit evidence towards your appeal.

If your and the LA's choice of schools are both saying that they can meet 'need' your appeal would be about the costs of each school. See the information below on costs. So 'the efficient use of resources' by demonstrating that there is a minimal difference in cost to the taxpayer/public purse string.

You also need to look at how each school can meet your child's needs (as outlined in the EHCP). You would do this by, for example, looking at the Schools Ofsted report, SEN Information on their website and their prospectus and talking to the SENCo. The schools would also be called as witnesses to your appeal so they can be questioned and demonstrate this.

If the argument is that you believe that the LA's named school cannot meet your child's needs, then you would need to demonstrate this as well as call them as a witness (if the LA did not do so). You should have visited both schools so that you can be clear about what each can provide.

Building a case

We advise that you make full use of the information in the prospectus, SEN Information Report and any Ofsted reports for both schools. All these will need to be sent as evidence to your Appeal.

You are required to submit the latest Ofsted report for your chosen school and the LA will submit the Ofsted report for theirs.

Make use of any reports which demonstrate the extent of your child's difficulties and/or the extent of provision required to support your child.

  • In the EHCP

If you have a Section I only Appeal and you feel that there is some important information that is missing from the EHCP, i.e. assessments that have not been carried out or missing content from Reports then you must change your Appeal to include contents.

  • Formally notifying your preference of School

If you did not email your preferred School when you completed the SEND 35 then you must do so once the appeal is registered. This is called a 'formal notification' and you should state that you are asking to have their School named on your child's EHCP. You should include something to the effect that you have visited the school and met with staff, you have learnt more about the types of pupils they have and how the school meets their needs and say that you firmly believe it is the right school for your child. If you have not visited it would be worth doing so.

  • Naming your preferred School or Schools

If you did not state the School you would like named on your child's EHCP, you will need to tell the Tribunal and LA by emailing them.

It is important to name a School as soon as possible. If you wait until the 'final evidence' deadline, this may mean that Hearing date is delayed as the LA will not have time to consult with them.

Once the LA is aware of the school you are seeking to have named they will consult with that school.

If the school is a wholly Independent, you will need a letter from them confirming that a place is available and how long it will be kept open for. The Tribunal will ask for a POP Form to be completed (a Provision of Place Form). Please see our information sheet on asking for an independent school for further guidance.

Note: some Independent Special Schools are on the Section 41 List. These Schools have agreed with the Government that if their School is named in a pupil's EHCP by an LA or by Tribunal, they will admit that pupil. This means if you have chosen a Section 41 School you should not be required to seek a letter from the school confirming they have space.

Have a statement ready to say why you would like one School over another – list all the pros and cons and all the reasons why your preference is better than the LA's, for example, the therapies on site at your School compared to the LA's. Remember to reference these to the needs and provision in the EHCP.

Get School Published Admission Number (PAN) figures, previous year figures and actual numbers on roll for the year your child will be attending. You may need to ask the school / schools for this information.

Costs

You need to submit the full costs of your chosen school, together with a full breakdown of what they provide. You also need to communicate with School Transport department and ask them for their costs for transporting your child to and from that school. You will need to send written proof of all this to both Tribunal and the LA. The LA will also be required to do this for the school they have named.

Be clear on the distances from home to the Schools and the time it will take (on a school day). Include the time it will take to get to School on time. You could have a few examples / various routes and their times/distance. Please note that the distance should be the distance travelled (the road route) and not "as the crow flies".

You may wish to obtain details on the following provisions to draw up a cost comparison for various schools over the year to strengthen your appeal:

  • Establishment costs
  • TA costs
  • Therapist costs if not included in TA costs, for example OT, SALT.
  • Transport for the year, solo and shared.
  • Social care costs, for example respite.

Do this using a table listing each school and state whether they are your preference, your second preference or the School the LA have named.

Where your School maybe a little more expensive than that of the LA's, this is not an automatic barrier. The LA must consider your parental preference against that of 'inefficient' use of resources (so the public purse string).

Case Law:

In Essex County Council v the Special Educational Disability Tribunal [2006] EWHC 1105 (Admin), the Judge said that the SEND Tribunal should balance that extra cost against any extra benefit the preferred school may bring for the child. It is only where the extra cost is 'significant' or 'disproportionate' that the parent's preferred placement is displaced.