Private special schools take control of their admissions

Private special schools are taking control of their admissions by using a little-known policy to help prevent them going over capacity, a Schools Week investigation can reveal.

Independent special schools can apply for permission to appear on the government’s section 41 register.

Appearing on the register means that, like state schools, private schools must admit a pupil if their setting is named on their education, health and care plan (EHCP).

Experts said that being on the register was initially an attractive prospect for private schools.

However, Schools Week has obtained data showing a spike in companies, some backed by private equity, removing them from this register.

Outcomes First Group, one of the largest providers, said by removing 21 schools it was “protecting admissions capacity” to maintain small class sizes and personalised support.

But one council said reductions in these settings could “increase the risk of delays” in securing a placement.

The findings come amid a capacity crisis in the specialist sector, with £2.1 billion spent on independent settings in 2024-25.

Bursting state schools cannot opt out of enforced admissions in the same way, in what the government has labelled a “two-tier system”.

Margaret Mulholland, a SEND and inclusion specialist at the Association of School and College Leaders, said independent schools were filling some gaps in provision, “often with highly specialist settings. It’s understandable why many wish to exercise their right to control pupil admissions.

“There is clearly a risk, however, of children being left without access to suitable, high-quality provision. This is the great challenge that the SEND reforms need to overcome.”

Certain duties

Section 41 of the children’s and families act 2014 means a school is subject to certain duties.

This includes following the SEND code of practice, being included in a council’s published local offer of support and co-operating with its arrangements for youngsters with additional needs.

Laura Thompson, a principal associate at Browne Jacobson law firm, said it was initially seen as attractive to sign up to the register as “it was quite a good advertising list and a good way to get public funding”.

It was also helpful for councils to find spaces.

But now there was enough demand to allow providers to “pick and choose a little bit more and maintain control over who is going to be admitted”.

To seek approval, a school must provide data on its cohort, financial health and quality.

Where parents express a preference for an independent special school, the council – and therefore the school – is under a conditional duty to accept.

It can only refuse if it would be unsuitable for the age, ability, aptitude or needs of the pupil, or that it would be incompatible with the efficient education of others or resources.

Claire Dorer, the chief executive of the National Association of Special Schools, whose members are mainly independent settings, said the demand for placements had been “so high that we are seeing local authorities who are utterly desperate saying we desperately need a placement and this may not be a great fit, so we are naming you”.

No reasons given

While the government publishes a list of those that have joined and left the section 41 register, it does not give a reason.

Using the freedom of information act, Schools Week asked the Department for Education for further data.

Of 139 schools in England since 2016, 41 were removed due to a poor Ofsted inspection, with 15 leaving because they had closed.

The remaining 83 voluntarily removed themselves from the register. The number each year has escalated post-pandemic, from single figures pre-2021 to 30 in 2025.

More detailed reasons for removal for this aren’t given, but two providers confirmed it was linked to controlling admissions.

Outcomes First Group has withdrawn the most schools, including 18 last year alone.

A spokesperson said: “These decisions are about protecting admissions capacity so we can maintain the small class sizes and personalised support our pupils need.

“Where a school is already full, retaining section 41 can limit the ability to manage admissions, creating a risk of exceeding capacity, increasing class sizes or disrupting the careful balance of complex needs within classes.

“That can have a direct impact on the quality of support. These are local decisions, made on a school-by-school basis, reflecting individual circumstances and our responsibility to provide safe, effective provision.”

The group, which also runs children’s homes, made an operating profit of £7.1 million on turnover of £264.3 million in 2023-24. It was acquired by USA-based private equity firm TPG in 2023.

Abu Dhabi-owned Witherslack has withdrawn 13 schools since 2017. A spokesperson declined to comment.

Witherslack capacity rises

Its most recent accounts show a 10 per cent drop in profit after tax in 2025 from £44.6 million to £39.9 million. However, turnover increased by 13 per cent.

It’s not clear how much relates to education, as it also runs care homes, but its education capacity rose by nearly 100 pupils to 2,256, while children’s home capacity dropped by two places.

The accounts state that the government’s ongoing SEND reforms confirm that pupils with the “most complex needs will continue to require highly-specialised provision – precisely the cohort the group serves”.

It expected demand to “remain strong and the company is well placed to respond to future legislation”.

The Cambian Group, owned by CareTech, withdrew three schools in 2023 “to ensure that they are effectively safeguarded”, a spokesperson said.

The group experienced “the significant risk” that despite the school setting out “a clear rationale as to why a student is not a suitable candidate for a school, local authorities and/or tribunals have still continued to name the school on the EHCP, and the school then has no choice but to place them”.

“This has led to schools admitting children whose EHCP needs cannot be met.”

The Cambian spokesperson also pointed to “regulatory issues” if the group operated outside its maximum registered capacity.

Close to 120 schools still appear on the register, as of September.

But Dorer said: “I can’t think why it’s in most schools’ interests to remain on the register. We’ll continue to see that exodus until it becomes clear what the future is.”

However, she added that “in practice it would still be the case if a school can accommodate it will try to do so, as the relationships with local authorities are really important.

“I don’t think it means councils meet with non-s41 schools and have doors slamming in their face all the time.”

‘Options limited’

Three Warwickshire schools left the register.

A council spokesperson said for some youngsters with “highly complex needs, where no school responds positively to consultation, the reduction in available section 41 settings can limit options and increase the risk of delays in securing a suitable placement”.

However, there has not been a significant impact in Lancashire and Hampshire (eight and five schools have left respectively).

The Local Government Association called for all schools to work with councils to support children with SEND.

Gary Smith, the chief executive at Hope Learning Community specialist academy trust, said the findings were “beyond belief. I haven’t got words to express how unfair it is.”

The Department for Education estimates the average cost per place in independent settings was £62,000 in 2024-25, compared with £24,000 in state schools.

In the state sector, two-thirds of special schools are over capacity, with per-place funding remaining static for more than a decade.

Warren Carratt, the chief executive of Nexus academy trust, said the “independent sector has been vilified whilst the state special and AP sector is left to rot, blamed for an inclusion crisis that we have not created and have done all we can to respond to, despite policy decisions made in Whitehall”.

It made “perfect sense” independent providers were doing “all they can to assert more control”.

“But what’s truly regrettable is that this will, undoubtedly, lead to more avoidable difficulties for families in securing the provision their child needs, and that is not what anyone wants to see.”

‘You’re on your own’

Dorer said state schools would have the protection of being a public body “so if everything hits the fan, you have the possibility of financial support from government, so that the school does not go under”.

“Flexibility is probably fair for the specialism and the risk you take on knowing that you’re on your own if anything goes wrong.”

In its SEND white paper, the government said the admissions duties on most of the independent sector were “not aligned with that for other special schools”.

This created “a two-tier system that allows providers to make decisions over which children and young people to admit and what provision to offer and which local authorities must then fund”, the DfE said.

The reforms proposed aligning admission duties, increasing financial transparency and giving the education secretary the power to refuse the expansion or opening of new schools.

The DfE said it wanted the system to remain “fair, viable and focused on delivering the best possible outcomes for children and young people with SEND.

“We want to make sure that specialist placements are used for the children and young people who need them most, and that placement decisions are driven by need rather than gaps in local sufficiency or variable commissioning practices.”