Naming an independent school in Section I of an EHCP | EHCP Clarity
Section I Placement

Naming an independent school in Section I of an EHCP

Independent schools can be named in Section I of an EHCP — but the statutory framework differs depending on whether the school is on the section 41 approved list or not. Section 41 schools carry a strong statutory right to request; other independent schools are considered under section 9 of the Education Act 1996. This guide covers both routes and explains how the SEND Tribunal applies the unreasonable public expenditure test.

Start your Section I packFind my route

Quick answer

Section 41 independent special schools — listed by the Secretary of State for SEN — carry the same statutory right to request as maintained special schools (section 38 CFA 2014). For other independent schools, parents have a weaker but still real right under section 9 of the Education Act 1996: the LA must have regard to parental wishes provided this does not involve unreasonable public expenditure. Where the LA names an independent school, it pays full cost — there is no top-up arrangement.

Two routes: section 41 vs section 9

Section 41 independent special schools

Schools on the Secretary of State's section 41 list. Statutory right to request under section 38 CFA 2014 — same framework as maintained special schools. LA must name unless section 39 exceptions apply.

Process: Section 38 preference; section 39 exceptions; SEND Tribunal appeal under section 51 CFA 2014.

Non-section 41 independent schools

Other independent schools — including mainstream private schools and independent specialist schools not on the section 41 list. No statutory right to request, but section 9 EA 1996 applies.

Process: Section 9 'have regard to parental wishes' subject to unreasonable public expenditure test; SEND Tribunal appeal applies same test.

How section 9 of the Education Act 1996 works

Section 9 requires that "in the exercise of their functions under the Act, 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."

In SEND Tribunal placement appeals, section 9 is applied where parents request a non-section 41 school. The Tribunal asks two main questions:

  • Is the parent's preferred school capable of providing efficient instruction and training? (i.e. is it appropriate for the child)
  • Would naming the parent's school involve unreasonable public expenditure? (i.e. is the cost difference unreasonable in the circumstances)

The unreasonable expenditure test is fact-specific. Where the parent's preferred school is significantly better suited and the cost difference modest, naming may be appropriate. Where the LA's alternative is broadly equivalent and substantially cheaper, naming the parent's preference is unlikely.

How to name an independent school in Section I

  1. 1

    Determine if school is section 41 or not

    Check the gov.uk section 41 list. If yes, follow the section 38 specialist school process — you have a statutory right to request. If no, follow the section 9 process below.

  2. 2

    Visit and confirm the school can meet needs

    Tour the school, meet senior staff, observe classes, ask about SEN expertise and similar profiles. Get written confirmation the school can meet needs and would offer a place.

  3. 3

    Build the case for why this school is needed

    Specific specialism, smaller class size, pedagogical fit, evidence the maintained alternatives cannot meet needs. Section 9 cases hinge on demonstrating real benefit beyond what LA can provide.

  4. 4

    Cost the LA's alternative carefully

    The unreasonable expenditure test compares the parent's school against the LA's proposed alternative including any additional support needed there. Make the comparison concrete with quotes and figures.

  5. 5

    Express the preference in writing

    When the draft EHCP is issued, write to the LA expressing your preference and citing section 9 EA 1996 (or section 38 CFA 2014 if section 41). Provide your evidence and cost comparison.

  6. 6

    If refused, register Section I appeal

    You have 2 months from the final EHCP date. Use SEND35A. The Tribunal will apply the section 9 / section 39 framework on the evidence presented.

Building the cost comparison

Cost is central to most independent school cases. A clear comparison strengthens the argument:

Parent's school cost

School fees including all add-ons (lunch, after-school, transport, residential element if applicable). Get this in writing from the school.

LA's alternative cost

Place value at the LA's proposed school plus any additional support specified in Section F. Plus transport. Plus any therapeutic input the LA would need to commission.

Cost difference

The actual additional public expenditure of naming the parent's school. This is what the unreasonable expenditure test applies to.

Benefits comparison

What the parent's school offers that the LA's does not: specialism, class size, expertise, pedagogical approach. Where benefits are substantial and cost difference modest, the case is strong.

Building your independent school case

  • Confirmed whether school is section 41 or not
  • Visited the school and met senior staff
  • Written confirmation from school it can meet needs and offer a place
  • Detailed cost figures from the school (fees, transport, extras)
  • LA's alternative costed in detail (place + 1:1 + therapy + transport)
  • Section 9 / section 38 preference expressed in writing
  • Professional reports recommending the school's specialism or approach
  • Parent statement explaining benefits of preferred placement

Common LA pushbacks on independent school requests

  • "Cost is too high" — must be evaluated against LA alternative including additional support; modest difference can be reasonable.
  • "Maintained alternative is appropriate" — challenge with evidence of what maintained cannot deliver.
  • "School is not on section 41 list" — true, but section 9 still applies; do not let LA dismiss without considering.
  • "You can self-fund" — irrelevant to whether the LA should name; if LA does not name, EHCP provision is not delivered at that school.
  • "There is no precedent" — section 9 cases are decided on facts; lack of precedent is not a reason to refuse.

Frequently asked questions

Can I get the LA to name an independent school in Section I?
It depends on whether the school is on the section 41 list. If yes, you have a statutory right to request and the LA must name unless section 39 exceptions apply. If no (a non-section 41 independent school), there is no statutory right to request — but the LA must consider parental preference under section 9 of the Education Act 1996 and may name where appropriate.
What is the difference between section 41 and non-section 41 independent schools?
Section 41 schools are independent special schools approved by the Secretary of State specifically for SEN. Parents have the same statutory right to request as for maintained special schools. Non-section 41 independent schools (including mainstream private schools) are outside this framework — parents may still ask, but with weaker statutory backing.
How does section 9 of the Education Act 1996 work?
Section 9 requires the LA to have regard to parental wishes when arranging education, subject to the proviso that doing so does not involve unreasonable public expenditure. The Tribunal uses section 9 in placement decisions where the request is for a non-section 41 school — particularly mainstream independent schools.
What is the unreasonable public expenditure test?
Where the parent's preferred school is more expensive than the LA's proposed alternative, the Tribunal asks whether the additional expenditure is reasonable. This involves comparing costs and considering whether the parent's preference offers benefits beyond what the LA's option provides. There is no fixed threshold — each case is fact-specific.
Why might I want to name an independent school?
Common reasons: specific specialism not available locally, smaller class sizes, particular pedagogical approach (Steiner, Montessori, etc.), specific religious or cultural ethos, or a strong existing relationship with the school. For SEN children, specialist independent schools may offer expertise not available in maintained provision.
Will the LA pay for an independent school?
Where the LA names an independent school in Section I (whether section 41 or not), the LA pays the full cost. There is no top-up arrangement. If the LA refuses to name and you choose to send your child anyway, you self-fund — the EHCP provision in Section F is then not LA-secured at that placement.
Can I 'top up' a school placement with my own funds?
There is no formal top-up mechanism in the EHCP framework. If the LA agrees to name an independent school, it pays the full cost. If the LA refuses, you cannot generally pay the difference and have the LA pay the rest. Some flexibility exists in personal budget arrangements.
What if the LA refuses to name an independent school?
Section I is appealable to the SEND Tribunal within 2 months. The Tribunal applies the section 9 / section 39 framework. Strong cases involve clear evidence the maintained alternative cannot meet needs and the cost difference is reasonable in light of benefits.

Related guides

Sources and further reading

This is general information, not legal advice. EHCP Clarity helps parents organise and prepare their own materials. It does not provide legal advice, legal representation, or tribunal advocacy, and nothing on this page should be relied on as a substitute for advice about your specific situation. For free independent expert support, contact IPSEA, SOS!SEN, or your local SENDIASS. For legal representation, instruct a SEND solicitor.