This guide also shows what to do if you disagree, and gives links to helpful guidance.

The Law This Guide Is Based On:

Children and Families Act 2014

Education Act 1996

SEND Code of Practice (2015)

These laws apply to all local authorities in England, including Cheshire West and Chester.

1. Your Right to Ask for a School

Parents have a legal right to ask for certain types of schools to be named in their child’s EHCP.

📜 Children and Families Act 2014 – Section 38

You can ask for:

• A maintained nursery or maintained school
• A mainstream or special academy or free school
• A non-maintained special school
• A further education or sixth-form college
• An independent special school approved under Section 41

👉 If the school is listed above, the council must consider your request.

2. When Must the Council Agree?

The council must name your preferred school  unless one of the legal exceptions applies.

📜 Children and Families Act 2014 – Section 39(4)

The council can only refuse if naming the school would be:

• ❌ Unsuitable for your child’s age, ability, aptitude or SEN, or
• ❌ Incompatible with the efficient education of other children, or
• ❌ Incompatible with the efficient use of public resources

3. What Is a Section 41 School?

A Section 41 (S41) school is an independent special school approved by the Secretary of State.

📜 Children and Families Act 2014 – Section 41

Section 41 schools:

• Are on a national, government-approved list
• Meet required education and safeguarding standards
• Are inspected and monitored regularly

✔ If a parent asks for a Section 41 school, the council has a legal duty to consult with that school.

4. What Is a Non-Section 41 School?

A non-S41 school  is an independent school that is not approved under Section 41.

📜 SEND Code of Practice 2015 – paragraph 9.84

This means:

• The council is not under the same legal duty to consult or name the school
• Parents can still ask for the school to be considered
• The council must balance parental wishes against lawful criteria

Non-S41 schools do not have the same level of regulation or oversight as Section 41 schools.

5. Why Does the Council Talk About Cost?

Parents often ask:

“Where does ‘value for money’ come from?”

📜 The answer is in the law:

• Children and Families Act 2014 – Section 39(4)(b)
• Education Act 1996 – Section 9
• SEND Code of Practice 2015 – paragraph 9.84

The law says children should be educated in line with parents’ wishes as long as this does not result in unreasonable public expenditure.

This means councils must consider:

• Whether the placement meets need
• Whether it is proportionate
• Whether public funds are being used responsibly

👉 Cost cannot be the only reason, but it can be a lawful factor.

6. How the Council Considers Non-S41 Schools

When a non-S41 school is requested, the council may look at:

✔ Inspection and safeguarding arrangements
✔ Leadership and governance
✔ Willingness to enter into contracts
✔ Ability to monitor quality and outcomes
✔ Whether the placement is necessary and proportionate
✔ Whether it represents an efficient use of public resources

If these assurances are not in place, the school may not be named.

7. Key Stage Transfers and In-Year Moves

At key stage transfer points (for example, Year 5 to Year 6):

• Parents can express a preference
• The type of provision is discussed at review meetings
• Recommendations are considered by education governance panels
• Formal preferences are submitted through the admissions process

If a non-S41 school is requested:

• The council is not legally required to consult
• Consultation may still happen in limited circumstances

8. If You Disagree With the Decision

📜 Children and Families Act 2014 – Sections 51–53

You can:

• Discuss concerns with your case officer
• Contact SEND Information and Advice Support Service
• Use mediation
• Appeal to the SEND Tribunal

⚠️ Important to know:

• A tribunal cannot force a non-S41 school to admit a child
• A formal offer from the school is needed for tribunal consideration

The Special Educational Needs (SEN) Team

The Special Educational Needs (SEN) Team are responsible for considering requests from Educational Institutions and Parents/Young People for Education, Health and Care Needs Assessments...

Telephone: 0151 3376505

Email: senteam@cheshirewestandchester.gov.uk

SEND Information, Advice and Support Service (SENDIAS)
This service gives free, impartial information, advice and support on SEN and disability issues.

Cheshire West and Chesters Policy Guidance

 Section 41 and Non Section 41 Schools

Key References

1.  Children and Families Act 2014

• Full legislation: https://www.legislation.gov.uk/ukpga/2014/6/contents/enacted
• Section 38 (Parental right to request a school): https://www.legislation.gov.uk/ukpga/2014/6/section/38/enacted
• Section 39(4) (Local authority duty and exceptions): https://www.legislation.gov.uk/ukpga/2014/6/section/39/enacted
• Section 41 (Approval of independent schools): https://www.legislation.gov.uk/ukpga/2014/6/section/41/enacted
• Sections 51–53 (Mediation and SEND Tribunal): https://www.legislation.gov.uk/ukpga/2014/6/part/3

2.  Education Act 1996

• Full legislation: https://www.legislation.gov.uk/ukpga/1996/56/contents
• Section 9 (Efficient instruction, parental wishes, public expenditure): https://www.legislation.gov.uk/ukpga/1996/56/section/9

3.  SEND Code of Practice (2015)

• Full guidance: https://www.gov.uk/government/publications/send-code-of-practice-0-to-25
• Paragraph 9.84 (Independent/non-S41 schools): https://www.gov.uk/government/publications/send-code-of-practice-0-to-25#para-9-84

4.  North West Association of Directors of Children’s Services (NWADCS) – Regional Purchasing System

• Overview: https://www.nwadcs.org.uk/

5.  IPSEA – Choosing a school or college with an EHCP

• Independent advice: https://www.ipsea.org.uk/

6.  GOV.UK – Independent special schools and post-16 institutions

• Approved institutions: https://www.gov.uk/government/publications/independent-special-schools

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