Parental Preference has Power
When it comes to the decision over which school is to be named on an EHC Plan, parental preference has power. The Sen Code of Practice lays out that:
Local Authorities must have regard to the general principle in section 9 of the Education Act 1996 that children should be educated in accordance with their parents’ wishes.
— SEN CODE OF PRACTICE, 2015
This means that the local authority must consider any request by parents for any school, including an independent school.
There are two caveats to the above principle.
The first is that the placement is compatible with the provision of efficient instruction and training. This means answering the question of whether placing your child in the school will be incompatible with the education of those with whom your child will be educated.
It needs to be shown that your child’s attendance would result in those children no longer being able to receive efficient instruction and training. It is not enough to merely show there would be some impact on those other children.
The second caveat is that placement does not mean unreasonable public expenditure. In assessing this, all expenditure must be taken into account, including benefits, transport, social care visiting therapists and so on.
Once the numbers are known, if the parental preference is still more expensive, the difference becomes relevant. In Essex CC v the SEND Tribunal [2006], the tribunal found that the additional cost of £2,000 - £4,000 was not considered an unreasonable public expenditure.
And finally, there is the expectation that Local Authorities and the First-Tier Tribunal will consider a broad balancing exercise even when the parental preference is more expensive, taking into account the reasons for the parental preference. They have a general discretion, taking all factors into account, to name a particular school or setting.
It is a bit like your child who writes their letter to Santa, and it contains really expensive gifts, that under normal circumstances you wouldn’t ever consider purchasing. However, due to the power of children's negotiations, for some reason you find a way to justify to yourself, that because it’s Xmas and because of (insert any other reason) you’ll do it anyway.
