• Parents of a child with a statement can suggest a preferred school, and the EA has to agree to this – but only when that choice meets certain criteria.
  • Those statutory criteria include a child’s age, academic ability (where applicable), whether the inclusion of the child will impact on the education of other children, and whether the placement represents an “efficient” use of resources.
  • Parents can appeal this decision to a Tribunal, which may or may not take their side. However, any Tribunal ruling is made on the same criteria outlined above.

On 30 January in a post on social media, newspaper columnist Newton Emerson said:

“Timely reminder: if your child has a statement, the EA is required to place them in a school of your choice and that school is required to accept them, by law.”

This is inaccurate.

Although parents/guardians can state their preferred school and the Education Authority (EA) has an obligation to try to accommodate this – however certain criteria must be met which include ‘the efficient use of resources’. Parents of a child with a statement do not have an unfettered final choice on what school their child attends.

Parent/guardian input and preferences are involved at all stages of special educational needs (SEN) assessment; including decisions on whether a statement of special educational needs is appropriate; and what that statement says.

However, the decision on the school in which the child is placed rests with the Education Authority, subject to multi-layered considerations of the individual child’s educational needs and/or school suitability.

Parents can appeal decisions to the Special Educational Needs and Disability Tribunal, which may or may not find in their favour.

It is not the case that parents/guardians can choose a school and both the EA and school in question must then accept the pupil.

  • Statement of special education needs 

Provision of special education needs (SEN) in NI is regulated by a range of laws and policies, including:

The current SEN statutory framework regulates when a child will require a written statement of special educational needs.

The Code of Practice includes a five-stage process to cater for “a continuum of needs”, with each stage taking place in order to see if it meets the individual needs in question. The first three stages are school-based interventions, relying on external expertise when necessary.

Stages four and five involve school boards and statutory assessments. The fifth and final stage involves the consideration of whether the child requires a statement. The Code of Practice notes that:

“[The] main consideration for the Board will be whether or not all the special educational provision necessary to meet the child’s needs can reasonably be provided within the resources normally available to mainstream schools in its area, including, as appropriate, any specialist provision which the Board would routinely make available to schools, for example peripatetic teaching or advisory support.”

  • Parent/guardian choice

Parents/guardians play an important role in this process. However, the final decision on placement is made by the Education Authority (EA). The Code of Practice states:

“Where the Board decides that the final statement will not name the parents’ first choice of school, it should explain its decision in writing to the parents. Visits by the parents to the school proposed by the Board, with an opportunity to discuss their child’s special needs with the principal, SEN co-ordinator or any specialist teaching staff may be helpful.”

As such, while parents of children with statements can offer a preferred choice of school, this is not decisive. Settings will be finalised based on certain criteria and conditions.

According to information on NI Direct, parents of children with a statement “have a right to say which grant aided school [they] want them to go to, either mainstream or special”, and that:

“The Education Authority (EA) in your region must agree to send your child to the school you want as long as:

  • the school you choose is suitable for your child’s age, ability, skills and special needs
  • your child meets any academic selection criteria the school has although most schools do not select pupils by ability
  • your child’s presence fits in with efficient education for other children
  • placing your child in the school will be an efficient use of the resources.”

This reflects the Code of Practice, which says:

“Three conditions govern the naming of a school in a statement: the placement must be appropriate to the child’s needs, while also compatible with the interests of other children already in the school and with the efficient use of the Board’s resources. Boards have a qualified statutory duty to secure that children with statements are educated in mainstream schools, so long as the 3 conditions above are met. If those conditions would not be met in the mainstream school preferred by the child’s parents, the Board’s statutory duty to secure that the child is educated is a mainstream school nevertheless continues to apply if the conditions would be satisfied at a different mainstream school.”

Parents/guardians may also indicate a preference for their child to attend an independent or non-EA school. However, the EA is under no obligation to cater for this choice. There is no legal duty to send a child to an independent school while an EA school remains a option.

So, while the parent/guardian’s choice remains the starting point and plays a significant role in the process, final decision on placement rests with the EA, contingent on the criteria outlined above.

  • Appeals

If parents are unhappy with the outcome, they may contact the EA Officer assigned to their child’s case. The Code of Practice states:

“Every effort should be made to ensure that parents are satisfied with the proposed statement and that they understand the background to the proposals made for their child and consider that their wishes and feelings have been given full and sensitive consideration… parents should have sufficient time and information to discuss their anxieties with the Named Board Officer, and mutual agreement should be sought where possible.”

Whenever parents’ proposed amendments to a statement are refused, or where they do not accept amendments made to the statement, the Code of Practice states that “‘the Board may nonetheless proceed to issue the final statement”.

However, parents must also be made aware that they can appeal to the Special Needs and Disability Tribunal regarding “the provision specified in the statement, including the named school, and the procedures to be followed.”

The step-by-step guide to the SEND Tribunal process explains that the Tribunal hears cases related to “appeals against decisions of local authorities about children with special educational needs; and claims of disability discrimination by a school against a child.” 

The guidance makes no specific reference to school choice but, when proceeding with an appeal, parents should outline and provide detailed reasons for their objections to the original decision.

During appeals, the Tribunal may or may not find in parent/guardians’ favour – but this does not amount to parents having the final decision on where their child with a statement attends school.

  • EA

Just over a week after the initial claim, Mr Emerson made a follow-up post on social media suggesting he was referring to the transfer process between primary and post-primary schools.

However, this is also inaccurate, since the criteria outlined above apply at all stages – including: first admissions to primary school; any move to post-primary schools; and transfers between settings whether the child is of primary- or post-primary school age.

FactCheckNI contacted Mr Emerson about this claim. At the time of writing, he has yet to make a substantive reply.

FactCheckNI also contacted the Education Authority which summarised the criteria as: 

“Consideration of Placements for children with statements must only be made on the application of the statutory criteria – age. ability, aptitude, Special Education Needs (SEN), whether the inclusion of the child will impact on the education of the other children and whether the inclusion of the child will impact on the efficient use of resources.”