Naming a school on an EHCP: how it actually works and what to ask for

Your child is in Year 5 with an EHCP, or in Year 4 and the plan is on the way, or already has a plan and you want to change schools mid-year. The school you want named is around the corner, or in the next county, or is the small specialist provision that you have walked round twice and known immediately. The LA officer on the phone has just told you your preference is “a request, not a right.”

That sentence is technically true and substantively wrong. Section 39 of the Children and Families Act 2014 gives you a real and specific right. Here is what it is, how to use it, and what to do when the LA pushes back.

Section I of an EHCP is the section that names the school or other educational setting your child will attend. Once a school is named in I, the LA has a legal duty under section 43 of the Children and Families Act 2014 to admit the child.

Section I creates a real, enforceable obligation. Unlike a standard school place applied for through the local authority admissions process, a Section I placement is statutorily required. A mainstream school cannot refuse on grounds of oversubscription or capacity; the LA must secure the placement. (CFA 2014, s.43. See References.)

This is why getting Section I right matters. The plan can have perfect Section B and Section F, but if I names the wrong school, the provision in F does not reach your child.

The right of request is set out in section 39 of the CFA 2014 and is broader than most parents realise. You have a right to request any of these.

The right is to request. The LA then either consults the school and names it, or refuses on one of the two narrow grounds set out below. The LA cannot refuse on grounds outside those tests.

You can also request an independent school not on the Section 41 list, meaning a school that is private and not specifically DfE-approved. The route is different and harder: see the section on independent specialist schools below.

The LA can only refuse your preferred school on one of two tests under section 39(4) of the CFA 2014.

That is the entire legal framework. If the LA's refusal letter cites anything outside these tests, the refusal is legally weak and ripe for appeal. (IPSEA, on Section I refusals. See References.)

These are the common LA arguments that have no legal weight on a Section I decision.

• “The school is full.” Not a lawful ground in itself. A mainstream school's published admission number does not apply to Section I placements. The LA can name a school that is at or beyond its standard PAN (Published Admission Number).
• “The school says it cannot meet need.” Not the school's decision. The school is consulted; the LA decides. Schools have to provide reasons that map to the two statutory tests.
• “We do not usually name that type of school.” LA policy is not law. The statute is.
• “You live outside the catchment.” Catchment areas apply to mainstream admissions. They do not apply to Section I placements for children with EHCPs.
• “The transport would be too expensive.” Transport cost alone is rarely enough to meet the inefficient use of resources test. Case law is clear that the LA must weigh the cost against the parent's statutory right.
• “There is a closer suitable school.” Suitability of an alternative is not a ground for refusing your preferred school. The question is whether the preferred school meets the tests.

Most LA case officers will say “the school is full” early in the conversation and assume that closes it. The phrase to say back is this.

“A school being at PAN does not remove my section 39 right. Which of the two statutory tests are you saying applies?”

In ten years of casework I have never seen an LA produce a credible answer to that question on the spot. They will go away to take advice. That is the right outcome.

The LA consults schools as part of issuing or amending an EHCP. The process has a defined shape.

1. Draft EHCP issued. The LA sends you the draft. You have 15 days to comment, including stating your preferred school.
2. LA consults schools. The LA writes to the schools named in your preference, and sometimes to its own preferred placement, attaching the draft plan and asking whether the school can meet the child's needs. Schools have 15 days to respond.
3. Schools respond. The response often includes whether the school feels it can meet need, capacity considerations, and any concerns. A school saying it cannot meet need is information for the LA, not a final decision.
4. LA decides. The LA names a school in the final EHCP, applying the two statutory tests.
5. Final plan issued. If you disagree with the named school, you have 2 months from the date of the final plan to register an appeal.

The consultation pack landsSchool office, day one of fifteen

A specific, evidenced case for your preferred school is the single biggest predictor of success.

1. Visit the school. Twice if you can. Get the visit dates in writing. Note staff observations about your child's likely fit.
2. Get a letter from the school stating whether they believe they can meet your child's needs based on the provision in draft Section F. A supportive school letter is gold.
3. Map provision against the plan. For each piece of provision in Section F, write a short note explaining how the preferred school will deliver it.
4. Address each statutory test directly. Your case should explain why the school meets the child's needs (suitability), why the placement would not harm other children (incompatibility test one), and why the cost is reasonable in the context of the child's needs (incompatibility test two).
5. Anticipate the LA's argument. If you suspect the LA will argue inefficient use of resources, get cost data for both your preferred school and the LA's suggested alternative. The cost differential is often smaller than presented when both options are fully costed.

Naming an independent specialist school is harder, but regularly achieved. The route is well-trodden, with the right evidence.

For Section 41-approved independent schools, meaning those on the DfE list, your right of request operates the same way as for any other school: section 39 of the CFA 2014 applies, the LA must consider, and refusal must be on one of the two statutory tests.

For independent schools not on the Section 41 list, you do not have the formal section 39 right. You can still request the school. The LA can name it if it accepts the case that the school is the only one that can meet the child's needs, but the test is harder. In practice, this route is most often used:

• For children with profound or complex needs that no maintained or NMSS school can meet.
• Where the family has exhausted maintained and Section 41 options and can show evidence of unsuitability.
• On appeal to the SEND Tribunal, where independent specialist placements are sometimes ordered.

The IPSEA-recommended approach: where you want an independent specialist school, build the evidence base systematically. Independent EP assessment, professional reports, school letters, costed proposals. Take legal advice if possible, since SEN solicitors have particular expertise here and legal aid is sometimes available for complex EHCP cases.

A maintained school named in Section I cannot lawfully refuse to admit the child. The duty under section 43 of the CFA 2014 is absolute. Where a school named in I is refusing to admit, your route is:

1. Email the school citing section 43 of the CFA 2014 and ask for the legal basis for refusal in writing.
2. Contact the LA. The LA has the duty to secure admission and must intervene.
3. If non-compliance persists, the route is judicial review or a complaint to the Department for Education. IPSEA holds detailed guidance. (IPSEA, schools refusing to admit. See References.)

You have a right of appeal to the SEND Tribunal under section 51 of the CFA 2014. Section I appeals follow the same procedural framework as other EHCP appeals.

See our piece on EHCP refused or appealing for the procedural detail.

On a Section I appeal, the tribunal applies the same two statutory tests. They will hear evidence from both sides and decide. Settlement before hearing is common; many LAs concede Section I cases once they prepare for tribunal, particularly where the parent's case is well evidenced.

Three things.

If you want help building the case, a Remarkable Minds SEND specialist will sit with you and help you map provision against the school, draft the case for naming, and rehearse the conversation with the LA. For formal legal advice IPSEA and SOSSEN remain the lead UK routes. Find a specialist (£60 for a 45-minute video call).

The sources behind every claim in this article.

• Statutory basis. Children and Families Act 2014, section 39 (parental preference); section 43 (duty to admit); section 41 (independent special schools list); section 51 (right of appeal).
• IPSEA on naming a school. IPSEA, What does an LA have to consider when naming a school?; IPSEA, When a school doesn't want your child.
• Section 41 list. The DfE maintains the list of independent special schools and special post-16 institutions approved under section 41 of the CFA 2014, updated regularly. Available at gov.uk.
• Special Needs Jungle on placements. Special Needs Jungle, placement types in Section I.
• Case law. Case law on the efficient use of resources test consistently emphasises that cost differentials must be weighed against the statutory right of preference. Tribunals routinely find that transport-only cost differentials do not meet the test.
• Free SEND advice. IPSEA tribunal helpline 0300 030 0080; SOSSEN; your local SENDIASS; Council for Disabled Children.

This article is general information about the SEND statutory framework, not legal advice for your specific case. It has been reviewed by a UK SEND specialist but does not replace advice from IPSEA, SOSSEN, your local SENDIASS, or a SEN solicitor on a specific Section I dispute.