11/07/2026
I have heard from some parents being told by services or the local authority that they are not able to ask that a non-section 41 school is considered for their child or young person's EHCP.
This is simply not true.
Under section 38(3) of the Children and Families Act (CFA) 2014, the types of settings you have a right to request are:
- a maintained school or nursery (mainstream or special)
- an Academy (mainstream or special)
- an institution in the Further Education sector
- a non-maintained special school, and
- a section 41 school.
And yes, an independent setting is not on this list. However, you can ask your LA to consider naming a non-section 41 school and they must take into account your views, wishes and feelings, as well as your child's, which is set out in section 19 CFA 2014, as well as having regard that pupils are to be educated in accordance with the parent's wishes, as long as it is compatible with the provision of efficient training and instruction, and the avoidance of unreasonable public expenditure, as set out in section 9 of the Education Act 1996.
If you are asking for a non-section 41 school to be considered when the EHCP is in draft form ('making representations'), you should evidence that the school has offered a place and the setting is appropriate, none of the LA suggested schools can meet need or, if they can meet need, that the cost of the non-section 41 school is not unreasonable public expenditure.
An offer of a place is needed from the school, as the LA cannot make an independent setting accept a pupil with an EHC Plan, and neither can tribunal, unless there is an offer of a place.