Supporting Children's Learning - Code of Practice: statutory guidance - fourth edition

5. School placements

What this chapter covers

1. Local authorities usually divide cities, towns and rural areas into school catchment zones. Children living in the same catchment area usually attend the same local school.

2. Most children and young people with additional support needs are educated in their local schools under the management of the education authority for that area (referred to as the home education authority).

3. Some children and young people with additional support needs may attend a school other than their catchment school, including schools outside the education authority they live in. This can happen where the education authority make alternative arrangements to meet the child’s needs or through a placing request.

4. This chapter looks at school placements and placing requests and outlines the relevant legal duties, key processes and rights of children, young people and parents and carers.

School catchment areas and additional support needs

5. The 2000 Act requires education authorities to provide school education in mainstream schools unless specific legal exceptions apply^[89].

6. Before deciding on an alternative placement, authorities must consult with the child or young person and parents and carers.

7. Under the 2000 Act, authorities must take into account the views of children and young people when making significant educational decisions.

Alternative School Placements determined by the Education Authority

8. Some children with additional support needs may attend a different school within the same local authority area, but outside their catchment zone. This can be:

• another mainstream school within the local authority, or
• a special school, special unit, or special class if these better meet the child’s needs.

9. In some cases, the home education authority may arrange for another education authority to provide school education. This may occur if:

• The home education authority lacks the necessary specialist provision (e.g., a special school or teachers with expertise in certain additional support needs).
• The child or young person is placed in foster care in another local authority area and attends a school there. This includes cases where the child or young person is placed with foster parents outside Scotland.

10. Rarely, the home education authority may place a child in a:

• Grant-aided or independent special school
• Specialist school in England, Wales, or Northern Ireland

These schools cater mainly for children with additional support needs.

11. The home education authority remains responsible for the child’s or young person’s education, even when they attend a school in another authority or outside Scotland. All duties under the 2004 Act continue to apply.

12. Additional support needs are assessed based on the provision available in the home education authority’s schools, excluding special schools. The home education authority is responsible for:

• Identifying and reviewing the child’s additional support needs.
• Preparing and reviewing co-ordinated support plans (CSPs), where required.
• Providing access to mediation and dispute resolution services.
• Offering psychological services (though these may be arranged through the host authority if appropriate).

13. In rare cases, a local education authority in England may enter into an agreement with a Scottish local authority to educate a child or young person in a school under the management of the Scottish authority. The English local education authority retains full responsibility for the child’s education. The 2004 Act does not apply in this case. The child’s support needs would be managed under English education legislation.

Alternative School Placements determined by Parental Choice

14. In some cases, parents may choose to educate their child at home or enrol them in an independent or grant-aided school.

15. Parents may also request a placement in a school outside their local authority area. If approved, the child is educated in another local authority area or independent special school.

16. Young people over 16 can also make such a request unless they do not have capacity to do so.

17. Eligible children (12+) do not have the right to make a placing request.

Placing requests

20. The term “placing request” refers to the parent of a child making a request in writing to place the child in a school that is specified in the request.

21. The process for placing requests for children with additional support needs is outlined in Schedule 2 of the 2004 Act.

22. Under the 2004 Act, education authorities have a duty to comply with placing requests, unless certain exceptions apply. Paragraph 2(1) of Schedule 2 states:

Where the parent of a child having additional support needs makes a request to an education authority to place the child in the school specified in the request, being a school under their management, it is the duty of the authority, subject to paragraph 3, to place the child accordingly.

23. The process operates similarly to the placing request provision in the Education (Scotland) Act 1980^[90], which applies to children without additional support needs. However, there are some key differences specific to children and young people with additional support needs.

24. Parents of children with additional support needs and young people themselves can make a placing request (unless the education authority determines that they lack capacity, in which case parents can act on their behalf). For simplicity, this section often refers to parents, but the same rights apply to young people in their own name.

25. Eligible children (aged 12–15) do not have independent placing request rights.

26. Parents can request for their child to attend:

• A different school within their home education authority, outside their local catchment area.
• A school managed by another education authority.
• An independent or grant-aided special school in Scotland, or a similar school in England, Wales, or Northern Ireland, if the managers of that school are willing to accept the child.
• A pre-school provision (e.g., a partnership early learning and childcare setting) within their home or a host education authority area.

27. Parents cannot make a placing request for independent or grant-aided schools that are not special schools.

Placing requests for schools outside the UK^[91]

28. While education authorities can arrange for a child or young person with additional support needs to attend an educational establishment outside the UK, they are not required to do so. If they choose to make such arrangements, they may cover:

• Tuition fees and associated costs.
• Travel and maintenance costs.
• Expenses for a parent or carer to accompany the child if deemed beneficial.

Financial responsibilities

29. If a placing request is approved, the education authority must cover:

• Fees and necessary costs for attending an independent or grant-aided special school.
• Certain costs incurred by a host education authority, agreed in conjunction with the home education authority, where a child attends a school outside their home education authority area.

Cost Recovery Between Authorities

30. If a child or young person belongs to one authority but is educated in another as a result of a placing request, the host education authority can seek reimbursement from the home education authority for the cost of providing education and services.

31. However, mediation and dispute resolution services cannot be charged back to the home education authority.

32. Transport costs for the child to attend the school are not the responsibility of the host authority.

Responsibilities Following a Successful Placing Request

33. If a placing request is successful, the host education authority assumes full responsibility for the child’s education. This includes:

• Providing all necessary educational support.
• Ensuring access to psychological services and other required educational provisions.
• Meeting all duties under the 2004 Act.

34. Assessments of additional support needs will be made based on what is generally provided in schools (excluding special schools) in the host authority for children of the same age.

Refusal grounds

35. An education authority must approve a placing request unless one or more exceptions apply. Schedule 2 of the 2004 Act sets out grounds for refusal of placing requests. These grounds are exhaustive and must be clearly evidenced if used to refuse a placing request. If none apply, the education authority is under a duty to grant the request.

36. Refusal grounds, circumstances when the duty to comply with the placing request does not apply, as set out in Paragraph 3(1) of Schedule 2 of the 2004 Act are:

(a) if placing the child in the specified school would:

(i) make it necessary for the authority to take an additional teacher into employment,

(ii) give rise to significant expenditure on extending or otherwise altering the accommodation at or facilities provided in connection with the school,

(iii) be seriously detrimental to the continuity of the child’s education,

(iv) be likely to be seriously detrimental to order and discipline in the school,

(v) be likely to be seriously detrimental to the educational well-being of pupils attending the school,

(vi) assuming that pupil numbers remain constant, make it necessary, at the commencement of a future stage of the child’s primary education, for the authority to elect either to create an additional class (or an additional composite class) in the specified school or to take an additional teacher into employment at the school, or

(vii) though neither of the tests set out in paragraphs (i) and (ii) is satisfied, have the consequence that the capacity of the school would be exceeded in terms of pupil numbers,

(b) if the education normally provided at the specified school is not suited to the age, ability or aptitude of the child,

(c) if the education authority have already required the child to discontinue attendance at the specified school,

(d) if, where the specified school is a school mentioned in paragraph 2(2)(a) or (b), the child does not have additional support needs requiring the education or special facilities normally provided at that school,

(e) if the specified school is a single sex school (as defined in paragraph 1(2) of Part 1 of Schedule 11 to the Equality Act 2010) and the child is not of the sex that the school admits (or is taken, under that paragraph, to admit),

(f) if all of the following conditions apply, namely:

(i) the specified school is not a public school,

(ii) the authority are able to make provision for the additional support needs of the child in a school (whether or not a school under their management) other than the specified school,

(iii) it is not reasonable, having regard both to the respective suitability and to the respective cost (including necessary incidental expenses) of the provision for the additional support needs of the child in the specified school and in the school referred to in paragraph (ii), to place the child in the specified school, and

(iv) the authority have offered to place the child in the school referred to in paragraph (ii), or

(g) if, where the specified school is a special school, placing the child in the school would breach the requirement in section 15(1) of the 2000 Act.

37. Section 15(1) of the 2000 Act requires education authorities to provide education in a school, other than a special school, unless specific exceptions apply.

38. The exceptions under the 2000 Act are:

• to provide education for the child in a school other than a special school would not be suited to the ability or aptitude of the child;
• to provide education for the child in a school other than a special school would be incompatible with the provision of efficient education for the children with whom the child would be educated; or
• to provide education for the child in a school other than a special school would result in unreasonable public expenditure being incurred which would not ordinarily be incurred.

39. An education authority can also refuse a placing request, in respect of a child who is resident out with the catchment area of the specified school, if accepting it would prevent them from reserving spaces for children who move into the school’s local catchment area.

40. It is important to note that refusals on the basis of significant expenditure and major alterations to school facilities must be supported by a clear and proportionate financial assessment that evidences the nature and scale of the cost involved.

41. An education authority has the discretion to grant the placing request, even when the grounds set out in Schedule 2, Paragraph 3 of the 2004 Act, apply.

Appeals

42. If a placing request is refused, parents and young people have the right to appeal.

43. Education authorities must inform parents and young people of their rights regarding placing requests. They are required to provide clear reasons for any refusal of a placing request.

44. Education authorities should also ensure that the appeal process is accessible and that appellants are informed of their rights at each stage.

45. The appeal can be to the:

• Education authority Appeal Committee (under the 1980 Act).
• First-tier Tribunal for Scotland (Health and Education Chamber) in the following circumstances:

A. Where the education authority has written to the parent or young person refusing a placing request for a special school anywhere in Scotland, England, Wales or Northern Ireland.

Or

The parent or young person made such a placing request and has not had a decision (this is only valid within a specified timeframe).

B. Where the education authority has written to the parent or young person refusing a placing request for a mainstream school.

Or

The parent or young person made a placing request and has not had a decision (this is only valid within a specified timeframe).

And

On that date (or the deemed refusal date) one of the following applied:

• A co-ordinated support plan (CSP) was in place for the child or young person.
• A co-ordinated support plan has not been prepared but the education authority has confirmed that the child or young person requires a plan or is in the process of preparing one.
• The education authority has informed the parent of their proposal to establish whether a co-ordinated support plan is required.
• The education authority had decided that the child needed a co-ordinated support plan and was in the process of preparing one.
• The education authority has decided that the child does not require a co-ordinated support plan and the decision has been referred to the Tribunal.

Repeat Tribunal Appeals

46. A placing request appeal can only be made once every 12 months, except when:

• A CSP has been reviewed within that period.
• The Tribunal has ordered changes to the CSP.

47. If a placing request was made but later withdrawn, a new request can be made at the Tribunal’s discretion.

48. A separate Tribunal appeal can still be made if the dispute relates to a different right within the same 12-month period.

Education authority Appeal Committee

49. The committee can confirm or overturn the education authority’s decision.

50. If the committee overturns the decision, the education authority must comply and meet the fees for a special school placement.

51. If the committee upholds the refusal, they must notify the parents or young people about their right to appeal to the sheriff court or the Tribunal.

52. If a CSP-related issue arises within 28 days of the committee's decision, the appeal must go to the Tribunal instead of the sheriff court^[92].

53. While the Tribunal may transfer a placing request decision back to the education appeal committee or sheriff^[93], where it has been decided that no co-ordinated support plan is required, it is anticipated that in the majority of cases the Tribunal will make a decision on the placing request reference.

Appealing to the Sheriff Court

54. If the Education Appeal Committee upholds a refusal, parents can:

• Appeal to the sheriff court within 28 days from the date of receipt of the decision. In the event of late applications, the sheriff may still hear an appeal if the parents can justify the reason for the delay.
• The sheriff can confirm or overturn the decision and order the education authority to:
  • Place the child in the requested school.
  • Cover necessary fees for a special school placement.
• The sheriff’s decision is final.

Timelines

Summary table

Event	Timeline[94]
Submission deadline for August start	By 15 March
Authority must notify decision (if request made by 15 March)	by 30 April
Authority must notify decision (if request made after 15 March)	within 2 months of receipt
Appeal committee must hold hearing	within 2 months of receiving appeal
Failure to meet deadline = deemed refusal	Various defaults apply (see following paragraphs)

Timeline in practice

55. Making a placing request

• A parent or young person submits a placing request in writing to the education authority.
• Requests can be made at any time but have specific deadlines if the aim is to start in August.

56. For August school starts

• If the placing request is made on or before 15 March, the education authority must notify the parent or young person of their decision by 30 April.
• Failure to respond by 30 April is deemed a refusal of the request^[95].

57. Requests made at other times

• For placing requests made after 15 March, the authority must respond within 2 months of receiving the request.
• Failure to respond within 2 months is deemed a refusal of the request^[96].

58. What happens after refusal?

• A parent or young person can appeal the refusal:
  • to the Tribunal: if it concerns a special school or a co-ordinated support plan is in place (Schedule 2, para 11 and Section 18(3)(da)-(dc)).
  • The reference must be received by the Tribunal no later than 2 months from the date on which the failure first occurred.
  • to the Education Appeal Committee: if it’s a mainstream placing request with no co-ordinated support plan involved.

59. Further timelines post-refusal

• Tribunal:
  • Once a reference is made, a case statement period begins.
• A decision must be made without undue delay, but there’s no statutory time limit for the Tribunal itself.
• The Tribunal can order placement, including timescales for compliance.
• Education Appeal Committee (for mainstream schools):
  • Must hold a hearing within 2 months.
  • Must issue a decision within 14 days of the hearing.

Delays in the process

60. The law treats failure to act within timelines as follows:

• If the education authority doesn’t notify a decision in time it is considered a deemed refusal^[97].
• If the appeal committee:
  • Fails to hold a hearing within 2 months,
  • or doesn’t fix a resumed date within 14 days of an adjournment,
  • or doesn’t notify parties of its decision within 14 days of the hearing,
  it is deemed to have upheld the refusal^[98].

Practical considerations

61. Timing: Placing requests should be made within the timelines specified by the education authority to ensure they are considered for the desired school term.

62. Documentation: When making a placing request, it's beneficial to provide all relevant information about the child's additional support needs to back the application.

63. Transport: Successful placing requests do not automatically qualify for free transport provided by the education authority. It is important parents consider and discuss the matter with the education authority prior to making a placing request.

64. Support: Parents and young people can seek assistance from advocacy services or legal advisors to navigate the placing request and appeal processes. Further information is available by the free National Advice and Information service on additional support for learning, Enquire^[99].

65. Decision: Education authorities must inform parents in writing of their decision on a placing request. It is good practice to ensure that the content of the response is in plain language and includes information on the parents’ rights to appeal.