Case summary

The young person wanted a college of a type found in section 38(3) Children and Families Act (CFA) 2014. This is a type the local authority (LA) or SEND Tribunal on appeal must name unless certain conditions apply. One of those is if the placement would be incompatible with the efficient use of resources.

The SEND Tribunal refused to order the LA to name this college. The cost difference between the young person’s choice and the LA’s preferred placement was around £77,400 per year, and it said the cost difference could not be justified against the advantages to the young person if they attended their college of choice.

The final working document before the SEND Tribunal on appeal did not contain all the sections, and was missing section A (views, interests and aspirations) and section E (outcomes). On this, the Upper Tribunal said:

“Those [sections A and E] are ideal spots to capture what might motivate a young person and potential outcomes in terms of skills and employment” and “there are clear risks of a tribunal having insufficient regard to a young person’s aspirations and the outcomes which they and those supporting them consider appropriate if it does not have Sections A and E before it to provide context for what it has to decide.”

The young person asked the Upper Tribunal for permission to appeal the placement decision. It refused.

What does this mean?

Balancing factors when cost is being considered

The SEND Tribunal considered the advantages the young person described of their preferred college but still concluded that an incompatibility with the efficient use of resources nonetheless existed. That is within the SEND Tribunal’s power: it is a matter for the specialist tribunal to decide, and disagreement with it, while one may appreciate a parent or young person’s perspective, does not give rise to an arguable error of law.

Linking special educational provision to section B

The young person asked for participation in lessons for “e.g. pottery, glass making, jewellery making” to be included in section F of the EHC plan, but the SEND Tribunal did not find that to be special educational provision.

If parents and young people want particular special educational provision to be included in an EHC plan, they need to show what that piece of special educational provision is, and how it is meeting/will meet the specified special educational needs in section B.

Working documents

This case gives weight to an argument that the working document process should incorporate sections A and E as well as the sections under appeal. If your LA sends you a working document version which does not contain these sections, you should ask for it to and can refer to this case if needed.

Please note though, the SEND Tribunal has strict rules about the length of final working documents, and you may need to ask for permission to exceed the 25 page limit. You can find information about this online.  

The full decision for LM v Birmingham City Council (SEN): [2026] UKUT 127 (AAC) is available online.