Client’s Story: 4 Year Old with Autism Secures Special School Placement After Successful Appeal

What the Law Says: Understanding Section 39(4) and Parental Preference

Under the Children and Families Act 2014, parents have the right to request that a particular school or type of school be named in their child’s EHCP. This includes maintained special schools and certain approved independent special schools.

A Local Authority must agree to name the school unless one of four specific exceptions applies. In this case, the Local Authority relied on Section 39(4)(c), which allows them to refuse where:

“The attendance of the child or young person there would be incompatible with the provision of efficient education for others.”

Incompatibility must be proven with clear evidence. A school being full or under general pressure is not, on its own, enough to meet the legal threshold. The Local Authority must show that admitting the child would actually and significantly affect the education of other pupils.

How Simpson Millar Helped: Appealing Sections B, F and I

We supported Ms S in lodging an appeal to the Special Educational Needs and Disability (SEND) Tribunal. We challenged three specific parts of W’s EHCP:

• Section B, which describes the child’s special educational needs
• Section F, which sets out the special educational provision required
• Section I, which names the type and actual school the child will attend

We believed the description of W’s needs did not fully reflect his difficulties, the provision set out was inadequate, and the named mainstream school could not meet his needs.

The Local Authority maintained that W’s needs could be met in the proposed mainstream school. Yet the school itself had expressed serious concerns, including an internal email stating that the school would not be suitable for W at all. Despite this, the Local Authority continued to oppose naming the special school.

Assessing Capacity and the Meaning of Incompatibility

The special school that Ms S preferred submitted evidence confirming they were over their Published Admissions Number (PAN). This number refers to how many pupils the school is approved to take, but it is not a fixed legal cap.

We closely reviewed the early years class numbers and noted that whilst some classes had 11 pupils, others had 12. This suggested that there was some flexibility, and that admitting W might be possible without causing disruption.

We prepared detailed legal submissions for the Tribunal, pointing out that:

• Being at or over PAN does not automatically make a placement incompatible
• The Local Authority and the school had not provided specific examples of how W’s attendance would affect others’ learning
• There was no evidence that admitting W would compromise pupil safety or teaching standards

We explained that the legal test under Section 39(4) requires strong and specific evidence. A school being under pressure does not, on its own, justify refusal.

Introducing Independent Evidence: Ofsted Report Supports the Case

Just before the hearing, a new Ofsted report was published for the special school. The school had been reinspected and retained its “outstanding” status.

The report raised no concerns about capacity, safety, or quality of teaching. In fact, it praised the school’s recent expansion and its ability to meet a wide range of complex needs.

We successfully applied to submit this as late evidence on the morning of the hearing. The Tribunal allowed this, and it became a key piece of independent evidence supporting the argument that the school could accommodate W without any issues.

At the Hearing: Questioning the Evidence and Closing the Argument

The hearing took place in November 2024, and we represented Ms S throughout.

The Local Authority’s specialist inclusion teacher stated that W’s needs could be met in the mainstream school for Reception, but was unable to explain how his needs would be met from Year 1 onwards.

We referred the Tribunal to an earlier email in the evidence bundle, in which the same inclusion teacher had said the mainstream school would not be suitable for W at all. This inconsistency cast doubt on the reliability of the Local Authority’s position.

The special school gave oral evidence, speaking about general pressures due to rising pupil numbers, but they did not provide any detailed explanation of how W’s presence would specifically impact the efficient education of others.

Towards the end of the hearing, we had the opportunity to make what is known as a closing submission. This is where each side sums up their arguments for the Tribunal. We explained that in law, the term “incompatible with the efficient education of others” sets a high bar. It is not enough for the Local Authority to say that W’s attendance might have an effect, or that the school is already full. They must show clear evidence that admitting W would seriously disrupt the education of other pupils, and no such evidence had been presented.

We also asked the Tribunal to avoid naming only a “type” of school (such as “a special school”) if they could not name the specific school. Ms S was concerned that doing so would make it extremely difficult to secure a place for W locally, given the limited number of special schools in her area.

Tribunal Decision: Special School Must Be Named

The Tribunal agreed with our case and ruled in favour of Ms S.

They found that:

• The mainstream school was not suitable for W
• The Local Authority had failed to provide any specific, convincing evidence to show that W’s attendance at the special school would disrupt the education of others
• The Ofsted report supported the view that the school remained a safe and effective environment for all pupils, despite being over PAN

As a result, the Tribunal ordered that Ms S’s preferred special school must be named in Section I of W’s EHCP. They also confirmed that the type of school was “a special school”, providing additional protection for future reviews of the EHCP.

How Simpson Millar Can Help You

If you have been told that your preferred school is “full” or “not suitable” for your child, or if a mainstream school has been named in your child’s EHCP and you do not believe it can meet their needs, you may have the right to appeal.

Our Education Law team can:

• Review your child’s EHCP in detail
• Advise whether an appeal is likely to succeed
• Prepare strong legal submissions on your behalf
• Represent you at the SEND Tribunal

We understand how daunting this process can feel, and we are here to help you secure the right school and the right support for your child.

Call us today on 0808 239 4536 or request a callback, and let’s start working together to build a better future for your child.