When a placement is no longer viable, finding the right way forward can be challenging for special schools, local authorities and, most importantly, the child or young person.
Our latest blog, written by Charlotte Melhuish from the Education Team at Stone King LLP, one of our NASS partners, explores the legal, practical and wider considerations when an EHCP-funded placement is no longer working and why permanent exclusion should remain a genuine last resort.
It looks at the importance of early engagement, robust evidence, EHCP review processes and planned, dignified transitions, while recognising the pressures facing schools and local authorities. A really useful read for special schools navigating what can be a particularly challenging situation.
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Breakdown of an EHCP-funded placement is one of the most challenging situations for special schools, whether they are maintained by a local authority (LA), academies, independent schools, non-maintained special schools (NMSS) or s.41 independent schools (s.41 school). Specialist schools are often supporting some of the most vulnerable children and young people in the education system. When placements become difficult, decisions should be guided not only by legal obligations but also by a commitment to achieving the best possible outcome for the child or young person.
Where a placement is no longer viable, and / or relations with a placing LA have become strained, schools may ask whether a permanent exclusion can achieve, in practical terms, what would otherwise need to be addressed through EHCP review, negotiation with the LA or contractual termination. Exclusion, however, is rarely an appropriate solution and can be highly damaging to the child or young person excluded. Exclusion should also never be used as a proxy for a school’s exit strategy; it must be capable of standing on its own facts, under the school’s exclusion and behaviour policies, and will be judged within wider statutory and equality law frameworks. Furthermore, schools (such as NMSS and s41 schools) should also be mindful of where they still have a duty to provide a service until the EHCP is amended, as further explored below.
Exclusion must be justified under school policy
While there is a clear statutory framework for maintained schools and academies to permanently exclude pupils, the lack of such a framework does not remove the risk for NMSS, s.41 schools and non s41 independent special schools to also be challenged in relation to the fairness and proportionality of that exclusion. Accordingly, the school’s own behaviour and exclusion policies – and specifically for independent schools, the terms and conditions of the contract with parents - will be central to whether the decision is defensible. This will of course also be the case for maintained schools and academies. That is, the conduct relied on must fall squarely within the grounds for exclusion set out in the policy - the process followed must be fair, transparent and consistent with the policy, including any internal review or appeal mechanism. Any breakdown in the school's relationship with parents will also not ordinarily justify permanent exclusion and reliance on this is likely to be vulnerable to challenge as a misuse of the exclusion process.
Due process is not a technicality; if the decision appears rushed, outcome-driven, or inconsistent with previous management of the pupil’s behaviour, it will be much harder to defend.
Exclusion for the “wrong reason”
The most acute risk arises where the exclusion appears to be driven by reasons other than disciplinary grounds. This creates a number of overlapping risks.
If the behaviour relied on is linked to a pupil’s disability, the school will need to demonstrate that it has properly complied with its obligations under the Equality Act 2010, including its reasonable adjustments duty, whether the EHCP provision has been delivered and whether further support or review was required before exclusion. An exclusion may otherwise be vulnerable to challenge under the Equality Act 2010, for example, if the unfavourable treatment arises from disability and cannot be justified as a proportionate means of achieving a legitimate aim.
By circumventing the statutory SEND framework, there is also the risk of scrutiny of decisions that appear to use behaviour processes to achieve a placement exit rather than properly engaging with the EHCP review process. This will not be regarded favourably by Tribunals, regulators or commissioning LAs.
Broader considerations
There are also regulatory and reputational considerations. Specialist settings are expected to manage complex behaviour through a SEND-informed lens. Where a pupil’s needs are escalating, decision-makers will expect to see evidence of review, adjustment, risk assessment, local authority engagement and clear escalation before permanent exclusion is considered. Schools should also be able to demonstrate that they have actively considered the impact of any proposed action on the child or young person's welfare, education, stability and future provision.
A decision which appears to use exclusion as a substitute for structured placement review may attract scrutiny from regulators and future placing authorities. It may also raise questions about leadership and management, behaviour practice, safeguarding risk management and the school’s ability to sustain placements. Schools are instead expected to engage constructively with local authorities rather than escalate prematurely. It is appreciated that it may sometimes be difficult to get reciprocal and constructive engagement from the LA about finding a suitable alternative placement, but schools are advised to make all possible effort to obtain the LA’s help in avoiding the pupil’s permanent exclusion.
Specific considerations for NMSS and s.41 schools
The starting point is the distinction between the statutory SEND framework and the commercial contract between the school and the local authority. The contract is commercially important, but it is not the legal driver of the placement, which is the obligation on the school to admit once it is named in a child’s EHCP (under Section 43 Children and Families Act 2014 (CFA)).
Whilst a special school remains named in Section I of an EHCP, the LA remains under a statutory duty to secure the special educational provision specified in Section F. The LA’s duty cannot be avoided even if there is a funding dispute or disagreement with a school and, in practice, the named NMSS or s.41 school will ordinarily be required to continue delivering the placement while it remains named in the Plan.
That creates a difficult but important legal reality: terminating or challenging the commercial contract does not, in itself, change the EHCP. Unless and until the EHCP is amended so that the school is no longer named, there is a risk of misalignment between the school’s contractual position and the statutory framework underpinning the placement.
The contractual position for NMSS, s.41 schools and other independent special schools
Technically, when a pupil has been permanently excluded, the duty to admit under s.43 CFA no longer applies. However, for NMSS and s.41 schools, even where exclusion is defensible on its own facts, it is unlikely to provide a clean commercial exit. The contract may still contain notice provisions, dispute resolution requirements, funding provisions or obligations that continue to be relevant.
Schools should be cautious about assuming that exclusion will avoid notice requirements or sidestep difficult negotiations. In some cases, it may do the opposite by creating scope for a contractual dispute with the placing local authority.
For independent special schools that are not s41 approved, the contractual position may be more significant because there is no equivalent statutory duty to admit. Nevertheless, such schools should not assume that a placement can be brought to an end simply because relations have broken down. The terms of the school-parent contract and placement agreement, together with the welfare of the child and the need for an appropriate transition, should be carefully considered before any action (such as calling an emergency review) is taken.
Looking ahead: a way forward
Where a placement is not working, schools should act early, document the concerns, identify whether the issue is placement suitability, unmet need, safeguarding or resourcing, and avoid allowing the situation to drift.
If the evidence suggests the placement can no longer meet a pupil’s needs, the school should seek an emergency EHCP review and engage transparently with the local authority. Permanent exclusion should remain a genuine last resort and only considered where the school’s policy threshold is clearly met, due process has been followed and the decision can be justified.
The wider challenge is ultimately that placement breakdown is rarely caused by one event. It often reflects a combination of escalating need, under-resourced provision, delayed EHCP review and funding mechanisms that do not adapt quickly enough when a pupil’s presentation changes. Treating exclusion as the solution risks focusing on the end point rather than the system pressures that led to it, while placing the consequences of those systemic failures on the child or young person who should remain at the centre of decision-making.
A more sustainable approach requires schools and local authorities to engage early and transparently when warning signs emerge. That means using review processes proactively, sharing evidence in real time and being clear about what is needed to make the placement viable. Where the placement cannot be sustained, the focus should be on planned transition, risk management and lawful amendment of the EHCP rather than an adversarial exit.
For specialist schools, this is also a commissioner confidence issue. Schools that can show disciplined escalation, strong evidence trails and careful management of issues (e.g. managing behaviour through the school’s policy and due process and addressing placement suitability through the EHCP review framework) are more likely to protect their position and maintain trust with placing authorities. In a pressured SEND system, that clarity of process is not just a legal safeguard; it is a marker of good governance and mature partnership working.
Even where relationships have become strained and a placement appears unsustainable, the central question should remain: what outcome is in the best interests of the child or young person. Ultimately, a good ending is not measured by whether a school has successfully exited a placement. It is measured by whether the child or young person has been supported through a lawful, planned and dignified transition that protects their welfare, education and future prospects. This requires careful transition planning and partnership working rather than a focus on securing the fastest route out of the placement.
If your school is managing a placement that is at risk of breakdown, early advice can help clarify an appropriate legal route, reduce exposure to risk and support a more constructive dialogue with the placing local authority.
Stone King LLP is a NASS partner and trusted advisor to a range of specialist providers. This includes schools in the state-funded sector (such as community and foundation schools, multi-academy trusts, academies and free schools and special schools) and independent / non-maintained sector (including independent schools, independent special schools, s41 special schools and non-maintained special schools), and those with residential provision.
For more information and get in touch, please visit: https://www.stoneking.co.uk/sectors/education-law/special-education-providers