S41 CFA 2014

What is Section 41 of the Children and Families Act 2014?

Section 41 of the Children and Families Act (S41 CFA) 2014 is a key piece of SEN law. It provides the Secretary of State for Education with authority to approve independent special and special post-16 placements to enable them to be requested to be named in an Education, Health and Care Plan (EHCP). This is often referred to as S41 approval.

How can I check if a school has Section 41 approval?

A list of all special schools and colleges approved under S41 CFA 2014 can be found on the GOV.UK website. This information can also be ascertained on the ‘Get Information about Schools’ page on the GOV.UK website when searching for particular schools. A school will either be recorded as:

• ‘Approved’ – this means that they are approved under S41 CFA 2014.
• ‘Not approved’ – this means that they are not approved under S41 CFA 2014.
• ‘Not applicable’ – this means that S41 CFA 2014 does not apply and the school essentially has the status of a mainstream school.

Why is this legislation important?

It is important to be aware of this legislation when considering potential placements for your child as the type of school can impact upon its ability to be named within Section I of an EHCP.

Section 43 of the CFA 2014 places on certain types of schools a duty to admit pupils if they are named within Section I of their EHCP.  When applicable it  means that the school has a duty to admit the child if it is named in their EHCP, regardless of whether or not they have formally offered a place for them. However, this only applies to certain types of settings and ordinarily would not apply to independent schools or special post 16 placements, unless they are institutions approved under S41. Therefore, independent schools and colleges that are approved under S41 CFA 2014 are obligated to admit a child or young person if their setting is named within their EHCP. Local Authorities therefore have the authority to name these settings within Section I in line with  parental preference, without an offer of a place from the placement. This is important for parents to bear in mind.

What should I do, if I want my child’s EHCP to name an independent special or special post-16 college?

If your child has an EHCP and your preference is for them to attend an independent special school or special post-16 college, your first step should be to ascertain whether or not it is approved by S41 CFA 2014 as this will determine your legal basis for requesting that this school be named within the EHCP. If it is indeed approved under S41, you are entitled to pursue the request for it to be named within Section I of your child’s EHCP regardless of whether or not they have a space available and/or have offered a place for your child. If you are unclear and wish to seek advice from a specialist in this regard, please contact HCB Solicitors today.

If the Local Authority refuses to name a S41 approved placement on the basis that they have not offered a place for your child, you are entitled to challenge this decision and can do so by appealing to the SEN Tribunal – provided you have a right of appeal, of course. For more information on how to obtain a right of appeal, please see here (please attach link to our article on this posted on 7 Aug).

In summary, it is important to be aware of S41 approval and when it applies, when considering potential placements for your child. Further, to be aware that there are avenues to challenge a Local Authority’s refusal to name your preferred setting if it fits the above criteria. This is likely to be useful advice given the difficulty parents are currently facing due to the lack of availability in SEN schools across the country.   

Please contact our expert lawyers if you require assistance with S41 placements or an appeal to the SEN Tribunal. We can offer initial advice on your matter, or assist throughout the appeals process with a view to obtaining a placement for your child at your preferred setting. Our education law team have a wealth of experience assisting with SEN matters and obtaining great results for families. If you would like discuss your matter with one of our specialist SEND solicitors, please contact us on 0333 202 7175 or education@hcbgroup.com.