What is a Section 41 school?

Have you heard of “Section 41” schools?

If not, read on to find out more and if you have, do you know what they are? It is fine not to know - we cannot all know everything although as a SENCO / school leader / parent, it can feel as if you are expected to know all the answers…

So, what is a Section 41 school?

These are independent special schools or post-16 institution that have been approved by the Secretary of State for Education. These schools and colleges have chosen to be included on this approved list and have committed to certain legal responsibilities that align with the SEND Code of Practice. They are called Section 41 schools because they are described in law (Children and Families Act 2014, Section 41).

In simple terms, these are private special schools or independent colleges that have been officially recognised as meeting certain standards for supporting pupils with special educational needs.

There is an official list of Section 41 schools on the UK government website which is updated regularly.

Why does Section 41 matter?

Being on the Section 41 list means a school or college:

• Can be named in an EHCP just like state schools and academies.

• Must admit a child or young person if they are named in Section I of their EHCP (unless doing so would be incompatible with the efficient education of others or the efficient use of resources).

• Must adhere to certain legal duties, such as responding to consultation requests from local authorities.

For parents and young people, this means more choice when considering options other than state special school placements. These settings are increasingly used due to the lack of (suitable) places in state specialist settings.

Naming a private school in Section I of an EHCP

Section I of an EHCP names the school, college, or other setting to be attended by the child or young person.

If a parent or young person requests a Section 41 school, and the placement is deemed appropriate to meet the needs set out in the EHCP, the local authority has a legal duty to name it, unless it can demonstrate that doing so would be unsuitable or place an unreasonable burden on resources. Sometimes it can be cheaper to place a pupil in a specialist setting than provide high levels of (adult) support in mainstream!

It is also possible to request a non-Section 41 independent school or college however, the local authority is not under the same legal duty to name the setting. Instead, the responsibility is on the parent to demonstrate that:

1. The provision is appropriate to meet the child’s needs, and

2. No other suitable state-funded or Section 41 provision is available.

If this can be clearly evidenced e.g. in professional reports, placement visits, and failure of other placements (such as EBSA, Permanent Exclusion etc.) then the local authority can agree to name the non-Section 41 school in Section I. The issue can be that because there is no statutory obligation to name a non Section 41 school, it will often be a decision that you need to contest at tribunal before a placement will be agreed. Non Section 41 schools also have no obligation to take the pupil - they are free to use their own admission requirements so for this reason, most families (if choosing an independent setting) will choose a Section 41 school.