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. local authority 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 local authority'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
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
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
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 local authority can provide.
- 4
Cost the local authority's alternative carefully
The unreasonable expenditure test compares the parent's school against the local authority's proposed alternative including any additional support needed there. Make the comparison concrete with quotes and figures.
- 5
Express the preference in writing
When the draft EHCP is issued, write to the local authority expressing your preference and citing section 9 EA 1996 (or section 38 CFA 2014 if section 41). Provide your evidence and cost comparison.
- 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.
local authority's alternative cost
Place value at the local authority's proposed school plus any additional support specified in Section F. Plus transport. Plus any therapeutic input the local authority 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 local authority'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)
- local authority'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 local authority pushbacks on independent school requests
- "Cost is too high" — must be evaluated against local authority 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 local authority dismiss without considering.
- "You can self-fund" — irrelevant to whether the local authority should name; if local authority 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.