Annual reviews and amending EHC plans Expand R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin): This case says that when a local authority (LA) concludes an annual review by proposing to amend an EHC plan, it must notify the parent/young person of this decision AND what the proposed amendments actually are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable, within 8 weeks of the draft plan being issued. Therefore, your LA must send you the final amended EHC plan within 12 weeks of the annual review meeting.
Mediation Expand Kumar v LB Hillingdon (Rev 1)[2020] EWHC 3362 (Admin): This case confirms that a parent or young person can choose who supports them during mediation. If you would like someone to attend mediation with you, your LA cannot refuse to participate if it disagrees with who you have chosen. This includes if you want to be supported by a lawyer.
Children out of school or not getting a full-time education Expand R v East Sussex County Council, Ex p Tandy / In re T (A Minor) [1998] 2 WLR 884: The LA is under an absolute duty to provide suitable education for children of compulsory school age who are out of school due to illness, exclusion or another reason. An LA cannot take its own financial constraints into account when deciding what is an appropriate education for a child. G, R (on the application of) v Westminster City Council [2004] EWCA Civ 45: Whether it is reasonably possible for a child to attend any existing suitable education (such as their current school), or whether they need alternative education under section 19 Education Act 1996, must be looked at objectively, taking into account all the circumstances. R (R) v Kent County Council [2007] EWHC 2135 ELR 648: When a compulsory school age child is out of school and this is not because they are being home educated or due to illness or exclusion, the LA must arrange alternative education for them if it’s not reasonably possible for the child to take advantage of any existing suitable schooling. To work out whether this is the case the question is whether, objectively, the schooling/education offered by the LA “is available, is possible and is accessible to the child.” Additionally, parents should explore all reasonable opportunities and suggestions before making a claim against the LA for breaching this duty under section 19 Education Act 1996. RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN): [2020] UKUT 278 (AAC): Whether or not a part-time timetable is discriminatory will depend on whether it is a proportionate means of achieving a legitimate aim – the school needs to consider whether the disadvantages caused to the child by the part-time timetable outweigh or are disproportionate to the school’s aim. In this case, on balance, the part-time timetable was determined to be proportionate and therefore it was not discriminatory. R (on the application of Y) v Croydon LBC [2015] EWHC 3033 (Admin); [2016] E.L.R. 138: The mother of a child with learning disabilities had been unable to get him to attend school despite significant efforts. The LA refused to change the school named in the Statement (now an EHC plan) or provide other alternative education. The LA was found to be in breach of its duty under section 19 Education Act 1996 to provide suitable education; as no further plan had been put forward, it was not reasonably practicable for the child to attend that school. R (LB) v Surrey County Council [2022] EWHC 772 (Admin): Where there is a duty under section 19 of the Education Act 1996 to provide alternative education, an LA must actually provide it and not merely attempt to provide alternative education. It is a duty which can be enforced by a mandatory order.
Home-to-school transport Expand R v Hereford and Worcester County Council, ex parte P 2 [1992] 2 FCR 732: Where an LA has responsibility for transporting a child or young person with special educational needs to school or college, that journey must be ‘non-stressful’. S and another v Dudley Metropolitan Borough Council [2012] EWCA 346: This case details the circumstances where it is lawful for an LA to charge parents for transport – which is where the child does not attend their nearest suitable school and to provide transport would be an inefficient use of resources. Staffordshire County Council v JM (SEN) [2016] UKUT 246 (AAC): When determining whether free transport is necessary for a young person aged over 19, an LA must exercise its judgment “judiciously and in good faith" – essentially it must make its decision fairly. Even if it does not consider it ‘necessary’, an LA has a discretion to pay some or all of the reasonable costs of transport if no other arrangement has been made. TYC (by his litigation friend and mother, KVD) v Birmingham City Council [2025] EWHC 623 (Admin): When making decisions about transport, local authorities should not: have a blanket policy of never providing discretionary travel arrangements, and has to properly think the child or young person’s circumstances.
Young people and mental capacity Expand Buckinghamshire CC v SJ [2016] UKUT 0254 (AAC): Where a young person has the mental capacity to make decisions relating to the appeal, they must bring the appeal themselves (although their parents can help them). Where the young person does not have the capacity to do so, an ‘alternative person’ (usually their parent) will be the person bringing the appeal.
Responsibility to ensure provision in EHC plan is made Expand BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin): Where an education, health and care (EHC) plan is issued following a SEND Tribunal order, the local authority (LA) has five weeks from the date of the order until the final plan must be issued. The LA must secure the special educational provision set out in the EHC plan from the date it is issued. Any delay in putting the special educational provision in place will be a breach of the LA’s duty under section 42 (2) Children and Families Act 2014. HXN, R (On the Application Of) v London Borough of Redbridge [2024] EWHC 443 (Admin): This case confirms that if a school has made efforts to put in place the special educational provision specified in an EHC plan but been unable to do so, it is the responsibility of the local authority (LA) to make sure the provision is put in place. The LA cannot delegate this responsibility to a school. It is an absolute legal duty of an LA under section 42 of the Children and Families Act 2014. L, R (On the Application Of) v Hampshire County Council [2024] EWHC 1928: This case reiterates that: Local authorities (LAs) have an “absolute duty” to secure all the special educational provision in section F of an EHC plan (section 42(2) of the Children and Families Act 2014). Speed must be of the essence in doing so “given the critical impact of lack of educational provision on a child’s wellbeing and future”. Therefore, LAs must “move proactively”. LAs are expected to have contingency plans. Therefore, any issues with the availability of special educational provision delivered by third parties (such as a shortage of EPs, education otherwise providers or teaching assistants), would not be a valid reason for an LA failing to comply with its duty to secure it in most cases. It also sets out the factors the High Court must consider when deciding whether to issue a mandatory order to an LA. N v North Tyneside Council [2010] EWCA Civ 135: The LA has an absolute duty to ensure the special educational provision set out in an EHC plan is provided. The LA is not allowed to change an EHC plan without following the proper process for amendment. R v Oxfordshire County Council ex parte Pittick [1996] ELR 153: If a school is not able to fund the special educational provision in the Statement or EHC plan from its own resources, the dutyto arrange and secure the provision remains with the LA. A dispute about funding between a school and an LA should never be the reason why a child or young person does not receive the special educational provision in their Statement or EHC plan. R v London Borough of Harrow ex parte M [1997] ELR 62: The LA is responsible for ensuring the special educational provision in a Statement (now an EHC plan) is made, even where the provision in question is actually provided by another body (in this case, the health service). If the health service fails to make the provision the LA must step in. R (LB) v Surrey County Council [2022] EWHC 772 (Admin): Practical difficulties (including financial ones) are no excuse for an LA failing to secure the special educational provision in an EHC plan. It is an absolute duty of an LA under section 42 of the Children and Families Act 2014.
Requesting an independent school or college Expand London Borough of Hillingdon v SS and others (SEN) [2017] UKUT 250 (AAC): This case sets out the law to be applied when a parent or young person makes a request for an independent placement. EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109: Where the parents are asking for an independent school, the SEND Tribunal must first consider whether the parents’ and the LA’s choices can meet need. If they can both meet need, then it must then consider whether the additional expense is justified by any advantages attending that school would have for the child or young person. Hampshire CC v R & Sendist [2009] EWHC 626 (Admin): If the parents’ choice of placement is more expensive this doesn’t necessarily constitute unreasonable public expenditure. The SEND Tribunal must carry out a balancing exercise and can look, in addition to the educational benefits, at the wider health and social care benefits for the child to attend the school of the parent’s choice. Haining v Warrington Borough Council [2014] EWCA Civ 398 CA: Costs savings to the LA of the child attending the school the parent prefers are also relevant. For example, the saving to the LA of a respite care place which will not be needed if the child goes into a residential school, onsite staff specialism/therapies which would otherwise present a cost to LA/NHS, or direct payments for social care which the parents may now no longer need. AA v London Borough of Hounslow (SEN) [2025] UKUT 226 (AAC): This case reminds us that section 9 of the Education Act 1996 does not create any legal right to have a particular school named in an EHC plan. However, if the exceptions in that section do not apply then parents should show that, and explain there is no other rational reason for not complying with the general principle that a pupil should be educated in accordance with the wishes of their parent.
The right to a mainstream education Expand Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC): When considering the right of a child with a Statement (now an EHC plan) to be educated in a mainstream setting, whether or not mainstream education is “suitable” is not a relevant consideration. The only issue to consider is whether education in a mainstream setting would be incompatible with the efficient education of other children and if so, that incompatibility cannot be removed using all reasonable steps. ME v London Borough of Southwark [2017] UKUT 73 (AAC): When considering the right of a child with a Statement (now an EHC plan) to be educated in a mainstream setting, whether or not mainstream education is “suitable” is not a relevant consideration. The only issue to consider is whether education in a mainstream setting would be incompatible with the efficient education of other children and if so, that incompatibility cannot be removed using all reasonable steps. Harrow Council v AM [2013] UKUT 0157 (AAC): Where a parent requests a mainstream school and there is no suitable school available (whether inside or outside its area), the LA is under an absolute obligation to make a mainstream school suitable to meet the child’s needs, subject only to the qualification that it must be compatible with the efficient education of other children. AA v London Borough of Hounslow (SEN) [2025] UKUT 226 (AAC): This case reminds us that many mainstream schools with an attached resource base or unit are still mainstream schools, even if they make special educational provision for some pupils with special educational needs in separate classes to other pupils. The duty to name a mainstream school where a parent wants a mainstream education is complied with if the LA names a mainstream school in the EHC plan, and this can include a mainstream school with a base/unit. Section 33 of the CFA 2014 is not a right to a particular mainstream setting or to a ‘mainstream experience’.
When an LA can refuse to name a school or college because it is incompatible with the efficient education of others Expand Hampshire County Council v R & SENDIST [2009] EWHC 626 (Admin) (2009) ELR 371: If a parent or young person requests a particular school is named in a Statement (now an EHC plan) and the LA argues that it is ‘incompatible with the efficient education of others’, there needs to be a positive finding of incompatibility, not merely evidence of some impact on those other children. NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC): The Upper Tribunal stated that this was a “strong test of incompatibility”, which means the test is a high threshold for the local authority. The local authority needs to have clear evidence of the difference the admission of that particular extra child or young person will make, which students will be affected by this and how. OO and BO v London Borough Bexley [2023] UKUT 223 (AAC): A school can be named in an EHC plan even if it is full. If the LA does not want to name the setting based on the number of pupils already attending, then the LA will need to show why naming the school will “result in the quality of education provided to those other pupils falling below the threshold standard of “efficient education””. If it cannot, then the setting can and must be named.
When an LA can refuse to name a school or college because it is incompatible with the efficient use of resources Expand Crane v Lancashire County Council [1997] ELR 377: A two-stage process is needed to reach a decision about whether naming a setting is incompatible with the efficient use of resources. First, an LA or SEND Tribunal must work out whether one suitable setting is more expensive than the other. If so, then they must work out whether the additional cost involved in meeting the parent’s choice is justified. Essex CC v the SEND Tribunal [2006] EWHC 1105 (Admin): A parent or young person’s preference can only be displaced on the grounds of being ‘incompatible with the efficient use of resources’ where the extra cost is significant or disproportionate. A difference of between £2000-£4000 was not found to be ‘incompatible’. LM v Birmingham City Council (SEN): [2026] UKUT 127 (AAC): The cost difference in this case was around £77,400 per year, and the SEND Tribunal said that could not be justified against the advantages to the young person if they attended their college of choice. That is a decision for the SEND Tribunal to make; it is a matter for the specialist tribunal to decide, and disagreement with it, while the tribunal may appreciate a parent or young person’s perspective, does not give rise to an arguable error of law.
General cases on what should be named in Section I Expand C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5: The setting named in Part 4 of a Statement (now Section I of an EHC plan) must be able to make the special educational provision set out in Part 3 (now Section F). Devon County Council v OH [2016] UKUT 292: While a local authority needs to considerhelping children and young people with SEN achieve "the best possible outcome in adult life", this does not override other considerations such as appropriateness and cost – they simply have to provide what is ‘reasonably required’. East Sussex County Council v TW [2016] UKUT 528: Section I of an EHC plan must name a place ‘to be attended’ by a child or young person – therefore it cannot be the child or young person’s home. This has implications for children and young people educated otherwise than in a nursery, school or college (EOTIS, sometimes known as EOTAS). JI and SP v Hertfordshire County Council (SEN) [2020] UKUT 200 (AAC): This case confirms a school must be able to provide all of the special educational provision set out in a child or young person’s EHC plan in order to be ‘appropriate’ for them. It also confirms special educational provision to be delivered in a unit/specially resourced provision should be described in section F of an EHC plan. LL and MM v Telford and Wrekin Council (SEN): [2026] UKUT 129 (AAC): This case was about whether reference could be made to a hub (which was a part of a special school but based within a mainstream school) in both Section F and Section I of an education, health and care (EHC) plan. The Upper Tribunal decided that: Parties can agree to include the name of a hub in Section I (using closed brackets after the name of the school/other institution) - and where this agreement happens, the SEND Tribunal can order the agreed wording into Section I. It can do this under Regulation 43 of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014). Even if the parties don’t agree, the SEND Tribunal can still (under SEND Regulation 43) order the name of a hub to be included in this way as something called a “consequential amendment”. It may decide to do this if the EHC plan would be deficient without doing so. The name of a hub (and possibly even providers of other sorts of special educational provision) can be included in Section F, where that is needed to make sure the provision reasonably required is specific enough. The SEND Tribunal can also order it in for this reason. London Borough of Hillingdon v AP and SP [2024] UKUT 388 (AAC): Local authorities (LAs) have duties to help the SEND Tribunal deal with appeals justly and fairly. This includes avoiding delay, cooperating, and placing all of their cards on the table. LAs need to properly prepare, this may involve raising points or options with the SEND Tribunal during the appeal rather than trying to introduce alternatives to the SEND Tribunal naming the parent’s choice of school after it’s made its decision to argue that it should have decided differently. MA v Borough of Kensington and Chelsea (SEN) [2015] UKUT 186 (AAC): Various factors need to be considered when deciding if a special educational needs unit is part of the mainstream school where it is located or a separate school in its own right. If it is part of a mainstream school, it will count as a mainstream placement and the school would be named in section I of the EHC plan. PS v LB of Wandsworth (SEN): [2025] UKUT 239 (AAC): This case reminds us that if a parent’s conditional right to a section 38(3) CFA school can be dislodged under section 39(4) CFA 2014 on appeal, and neither party asks the SEND Tribunal to consider an alternative school, then the SEND Tribunal will name an appropriate type of placement. This does not mean that afterwards an LA can simply agree to remove the name of a child on the roll of their special school without consulting with their parents as a result. It also reminds us that: if parents or young people are concerned that the setting they want named may not be, and/or they feel strongly opposed to the placement proposed by the LA, they should put forward an alternative setting for the SEND Tribunal to consider naming when the SEND Tribunal makes decisions, it can do so on the reasonable expectation that the LA will comply with its legal duties, and we must all take care when using AI-generated content, as this is not always reliable. R v Chair of Governors and Headteacher of A and S school ex parte T [2000] ELR 274: When a parent requests a school (of one of the types set out in section 38(3) Children and Families Act 2014), the ultimate decision to name the school rests with the home local authority. Even if the school and the local authority in which the school is located object, they can be overruled. R v Surrey County Council Education Committee ex parte P [1997] ELR 516: An LA is not under a duty to provide the best possible education for a child; all that must be shown is that the school or college can meet the child’s special educational needs. TB v Essex CC [2013] UKUT 534 (AAC) [2014] ELR 46: This case concerned whether a specific setting referred to as a “unit” was in fact a “school”. TM and SM v Liverpool City Council [2024] UKUT 201 (AAC): This case confirms that a local authority or SEND Tribunal (on appeal) must take into account how a child or young person feels about a placement when deciding whether a particular nursery, school or college is appropriate. Children and young people may potentially have strong and upsetting feelings about attending a particular nursey, school or college, yet their views, wishes and feelings are important. These should be identified early on and gathered in a sensitive way with the welfare of the child or young person a priority.
When should support from health (like therapies) or social care be classed as special educational provision, and included in Section F? Expand DC & DC v Hertfordshire County Council (SEN) [2016] UKUT 0379 (AAC): Therapies which train a child or young person to manage anxiety (such as cognitive behavioural therapy or mindfulness) can be considered special educational provision, but general psychological support to address mental health problems is unlikely to be educational as it does not involve instruction or training. East Sussex County Council v TW [2016] UKUT 528: Social care provision which educates or trains can be special educational provision, however the SEND Tribunal must give adequate reasons for deciding where provision should go in an education, health and care (EHC) plan. Section I of an EHC plan cannot name a person’s home as their educational placement. London Borough of Bromley v SENDIST and Others [1999] EWCA Civ 3038: There is a significant degree of overlap between what is educational and what is non-educational therapy. It was inappropriate to seek to impose a strict line between the two areas. In this case, physiotherapy, occupational and speech therapy were all considered to be educational. London Borough of Hillingdon v AP and SP [2024] UKUT 388 (AAC): Physiotherapy and provision which supports education can be special educational provision and also benefit a child’s health. R v Lancashire County Council ex parte M [1989] 2 FLR 279: Speech and language therapy can be special educational provision. R and RK v Hertfordshire County Council [2025] UKUT 381 (AAC): This case looked at how occupational therapy can and should be specified in an EHC plan. It makes clear that if occupational therapy educates or trains a child or young person, it must be set out in Section F (not Section G) even if it also treats or supports the child or young person’s needs. Westminster City Council v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC): Where there is sufficient evidence, provision outside of term time which is required to promote a child or young person’s consistent development or support their education may be special educational provision.
What should be in Section F of an EHC plan? Expand AB v North Somerset Council (SEN) [2010] UKUT 8 (AAC): This case confirms that being educated out of chronological age group can be special educational provision. If such provision is reasonably required by a child or young person’s special educational needs, then the provision (being educated out of year group) can (and must) be specified in Section F of their EHC plan. BZP & BZG v Warwickshire County Council (2026) UKUT 113 (AAC): This case was about including a specific adult-to-pupil ratio in the classroom and psychotherapy sessions in an EHC plan. It shows the importance of having strong evidence in an appeal to show that the provision and level of support requested is necessary and confirms that where therapeutic provision is being sought, evidence from a qualified professional will most likely be needed. C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5: An LA must make decisions about provision when writing a Statement (now an EHC plan), and cannot delegate this responsibility to someone else, such as a school. (For example, the EHC plan should not say anything like “Support to be determined by the setting”.) E v Rotherham MBC [2002] ELR 266, [2001] EWHC Admin 432: A Statement (now an EHC plan) cannot provide for provision to be amended unilaterally by the LA. In this case, the Statement said provision could be changed during the year following a ‘formal discussion’. This was not acceptable – any change to a Statement or an EHC plan should follow a proper process (such as annual review) so that the parents have a right of appeal. East Riding of Yorkshire Council v Bowers (SEN) [2026] UKUT 31 (AAC): The Upper Tribunal found that the golf coaching and gym training provision the young person wanted specified in their EHC plan was not called for, or required, by their special educational needs. As such, the SEND Tribunal was wrong to order the LA to include it. The Upper Tribunal said such provision was not incapable, in any case, of being special educational provision – it all depends on the individual’s special educational needs, and what they call for, or what the child or young person requires by reason of those needs. L v Clarke and Somerset County Council [1998] ELR 129: Where special educational provision is set out in Part 3 of the Statement (now Section F of an EHC plan) it must be specific, which will normally involve specifying the number of hours of support. LL and MM v Telford and Wrekin Council (SEN): [2026] UKUT 129 (AAC): This case was about whether reference could be made to a hub (which was a part of a special school but based within a mainstream school) in both Section F and Section I of an education, health and care (EHC) plan. The Upper Tribunal decided that: Parties can agree to include the name of a hub in Section I (using closed brackets after the name of the school/other institution) - and where this agreement happens, the SEND Tribunal can order the agreed wording into Section I. It can do this under Regulation 43 of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014). Even if the parties don’t agree, the SEND Tribunal can still (under SEND Regulation 43) order the name of a hub to be included in this way as something called a “consequential amendment”. It may decide to do this if the EHC plan would be deficient without doing so. The name of a hub (and possibly even providers of other sorts of special educational provision) can be included in Section F, where that is needed to make sure the provision reasonably required is specific enough. The SEND Tribunal can also order it in for this reason. R v Cumbria County Council ex parte P [1994] ELR 337: Simply referring to a financial banding or an amount of money to describe what special educational provision will be made in Part 3 of a Statement (now Section F of an EHC plan) is not specific enough to satisfy the law’s requirement. SB v Herefordshire County Council [2018] UKUT 141(AAC): This case looked at how small class sizes can be specified in EHC plans. It may be necessary to specify staff:pupil ratio and/or class size where this is required to deliver the provision the child or young person needs. If parents or young people feel that a particular class size or staff:pupil ratio must be specified (for example, in support of a request for a particular school), they should get evidence as to why this is required. Where they have such evidence, they should request that the EHC plan specifies the size of the group by reference to a lower and upper range (such as ‘8-10 children’). Staffordshire County Council v JM (SEN) [2016] UKUT 246 (AAC): Transport is generally not special educational provision and should not usually be included in Section F of the EHC plan. Worcestershire County Council v SE [2020] UKUT 217 (AAC) and London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC): These linked cases considered how specific an EHC plan should be, and provided a series of general principles to be followed in order to achieve practical and enforceable plans.
EHC plans need to be specific and clear Expand EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109: The SEND Tribunal should not ‘rubber stamp’ a vague Statement or EHC plan. LL and MM v Telford and Wrekin Council (SEN): [2026] UKUT 129 (AAC): This case was about whether reference could be made to a hub (which was a part of a special school but based within a mainstream school) in both Section F and Section I of an education, health and care (EHC) plan. The Upper Tribunal decided that: Parties can agree to include the name of a hub in Section I (using closed brackets after the name of the school/other institution) - and where this agreement happens, the SEND Tribunal can order the agreed wording into Section I. It can do this under Regulation 43 of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014). Even if the parties don’t agree, the SEND Tribunal can still (under SEND Regulation 43) order the name of a hub to be included in this way as something called a “consequential amendment”. It may decide to do this if the EHC plan would be deficient without doing so. The name of a hub (and possibly even providers of other sorts of special educational provision) can be included in Section F, where that is needed to make sure the provision reasonably required is specific enough. The SEND Tribunal can also order it in for this reason. London Borough of Hillingdon v AP and SP [2024] UKUT 388 (AAC): The SEND Tribunal can use its specialist expertise to decide the wording for an EHC plan so it’s clear to professionals delivering the provision what is required to make it workable. London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC): This confirmed that where detail can reasonably be provided in an EHC plan, it should be. Even where there is need for flexibility (to meet the child or young person’s needs) in an EHC plan, the duty remains on LAs to specify. Mr & Mrs D v Cheshire East Council [2025] UKUT 187 (AAC): This confirmed that although the SEND Tribunal is allowed to use its expertise when making decisions, EHC plan wording must still be sufficiently specific so as to leave no room for doubt. It also confirms the SEND Tribunal must give adequate reasons for its decisions. R v The Secretary of State for Education and Science, ex parte E [1992] 1 FLR 377 CA: Statements (now EHC plans) must not be vaguely worded. Additionally, the LA must include special educational provision (in what is now Section F) for each and every special educational need identified in Section B. Worcestershire County Council v SE [2020] UKUT 217 (AAC): This confirmed that the appropriate and necessary level of specificity and detail in an EHC plan will depend on all the individual facts in a case.
Refusal to issue an EHC plan Expand Buckinghamshire CC v SJ [2016] UKUT 0254 (AAC): Whether or not a child or young person is capable of obtaining qualifications is not relevant when deciding whether they should have an EHC plan. The only question is whether an EHC plan is necessary in order for them to obtain the special educational provision they require. Manchester CC v JW [2014] ELR 304: An EHC plan may be necessary when either the school or the local authority lacks an understanding of the required special educational provision or fails to provide it in practice. It is not necessary for a parent or young person to explain or prove why adequate provision is not or will not be made by the school. Parents and young people simply need to demonstrate that an EHC plan is necessary.
Refusal to carry out an EHC needs assessment Expand Cambridgeshire County Council v FL-J [2016] UKUT 0225 (AAC): The test for carrying out an EHC needs assessment is “provisional and predictive” – it simply needs to be shown that the child or young person may need support at a level which the school or other setting is unable to provide without an EHC plan. Buckinghamshire County Council v HW (SEN) [2013] UKUT 0470 (AAC): When considering whether to assess, the test is whether it may be necessary for support to be provided through a Statement or an EHC plan; necessary means “somewhere between indispensable and useful or reasonable”. An LA must consider not only the present situation but also take into account future changes such as an upcoming change of school. MC v Somerset County Council (SEN) [2015] UKUT 0461 (AAC): An EHC needs assessment may be necessary in order to access enforceable rights – for example, where a school could theoretically do more to support a pupil but is unable or unwilling to do so, and so an EHC plan is necessary to access that support.
Cease to maintain EHC plans Expand AB v East Sussex County Council [2024] UKUT 87 (AAC): The SEND Tribunal’s decision to uphold a local authority’s (LA) cease to maintain decision was unlawful. The Upper Tribunal (UT) confirmed that: the first step is to identify and consider the special educational provision required before moving on to considering whether it is no longer required, or what the appropriate setting may be an LA (or the SEND Tribunal in its shoes) should ask itself whether a child or young person would meet the test for preparing and maintaining an EHC plan in the first instance. If the answer is ‘yes’, an EHC plan would necessary under section 37(1) CFA 2014, it will be difficult for the LA or SEND Tribunal to reach a conclusion that it is no longer necessary for an EHC plan to be maintained considering whether outcomes have been achieved must not be treated as a ‘tick box’ exercise. The LA/ SEND Tribunal must properly have regard to whether the education or training outcomes specified in the plan have been achieved the LA/ SEND Tribunal must not focus simply on the academic learning element of education but must consider the broader view of education and training set out in section 2 and 15ZA(8) of the Education Act 1996 and section 21 of the CFA 2014, and if SEND Regulation 30 is relevant (due to the young person being 18 or over, not attending their placement and not receiving education or training) and the wishes of the young person have not been obtained, then in an appeal the SEND Tribunal should be proactive in seeking that input from the young person. B & M v Cheshire East Council [2018] UKUT 232 (AAC): A local authority (LA) argued that it was allowed to cease to maintain an EHC plan because the young person had achieved the outcomes in the plan. The Upper Tribunal (UT) considered that this was not, in itself, enough to cease to maintain an EHC plan, and that LAs should carefully consider whether they have sufficient up to date information about a young person before deciding to cease to maintain an EHC plan. The UT also gave guidance on regulation 30(1) of The SEND Regulations 2014, which sets out circumstances in which an LA may not cease to maintain an EHC plan where the person is aged 18 or over. EM v Royal Borough of Windsor and Maidenhead: [2024] UKUT 317 (AAC): The LA decided to cease to maintain a young person’s EHC plan and the reasons for this decision were that he would be better supported in an adult care environment, he had received intensive provision and made (relatively) small progress, and future progress would not be significant. The Upper Tribunal confirmed that when considering if an EHC plan is necessary, the law does not require a person to be able to reach a certain level of progress or for certain skills to reach a particular level. A decision to cease an EHC plan cannot be based on whether the person’s level of progress justifies or is in proportion to the amount of provision. The potential for learning may be a relevant factor when thinking about necessity but a specified amount of potential is not: a particular level of learning potential is not essential for an EHC plan to be needed. This case also covers the requirement for the SEND Tribunal to provide adequate reasons for its decisions. Hampshire County Council v (1) GC (2) GC (SEND): [2024] UKUT 128 (AAC): In this case, the Upper Tribunal: decided that a decision to cease to maintain, or stop, an EHC plan will be invalid if it is taken in breach of the procedural requirements of regulation 31 of The SEND Regulations 2014 disadvantaging the parent/young person dealt with what being in a local authority’s (LA) area means for the purposes of an LA being “responsible” for a child or young person under the Children and Families Act (CFA) 2014. Being in an LA’s area may involve physical presence, but this isn’t the definitive test: The question involves considering whether the child or young person is ordinarily or habitually resident in that area (even if there is a temporary absence – in this case, caused by the parent’s deployment overseas as part of the Royal Navy), and confirmed LAs always have discretion under section 45 CFA 2014 to continue to maintain a plan where they are “no longer responsible” for a child or young person. In this case, that discretion didn’t apply because the child was found to still be in the LA’s area. Where the LA remains responsible for a plan but the child or young person is absent from the area overseas, then the LA could simply maintain the status quo pending the family’s return to the UK.
Education otherwise than in a school (EOTIS) Expand Derbyshire CC v EM and DM (SEN) [2019] UKUT 240 (AAC): Where a child or young person requires full time ‘education otherwise than in school’ (EOTIS, sometimes known as EOTAS) at home, the special educational provision and EOTIS package should be set out in section F. section I should be left blank, as there is no setting to be attended. NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC): It makes clear that if a child will be present at a school for at least part of the time, they will be attending it and so the school must be specified in section I of their EHC plan. This includes if the child will be attending provision provided by the school as part of a bespoke package outside of the conventional classroom setting. This case also confirms earlier case law on what counts as a school that only the type and name of setting can be included in section I of an EHC plan on how the decision of whether education other wise than in a school (EOTIS) must be made, and that where full time EOTIS at home is made section I will be blank and the special educational provision will be described in section F. TM v Hounslow [2009] EWCA Civ 859: In applying the test for education otherwise than in a school (EOTIS, sometimes known as EOTAS) and deciding if it would be inappropriate for special educational provision to be made in a school, it’s not enough to ask if the school can deliver it: The question is whether a school would not be “suitable” or “proper”. To decide this the LA must take into account all of the circumstances, some examples of which are included in this case.
Disability discrimination Expand AB v The Governing Body of Kingston Grammar School: [2024] UKUT 406 (AAC): This disability discrimination case makes clear that, in most cases, parents will need to show their child is disabled under the Equality Act 2010 (the Act). Evidence of any diagnoses may be helpful but parents must still evidence each element of the definition of disability under the Act, unless their child has a condition which is deemed to be a disability. It also confirms how the SEND Tribunal should deal with claims and appeals in the SEND Tribunal (whether under the Act or the Children and Families Act 2014): Usually, the SEND Tribunal must hold an oral hearing which deals with all the issues in dispute before making a decision, unless the parties (and the SEND Tribunal) agree to the matter being decided without a hearing. If a party fails to attend a hearing, the SEND Tribunal must either hear the matter in the party’s absence or re-arrange the hearing (adjourn it). Once a hearing has begun and it is clear that a party is absent, the SEND Tribunal cannot decide to deal with the matter on the papers instead of continuing with the hearing. RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN): [2020] UKUT 278 (AAC): Whether or not a part-time timetable is discriminatory will depend on whether it is a proportionate means of achieving a legitimate aim – the school needs to consider whether the disadvantages caused to the child by the part-time timetable outweigh or are disproportionate to the school’s aim. In this case, on balance, the part-time timetable was determined to be proportionate and therefore it was not discriminatory. UW v Cheam Academies Network (SEN): [2026] UKUT 53 (AAC): The Upper Tribunal found that: By paragraph 2(4) of Schedule 13 to the EA 2010, the duty to make reasonable adjustments under section 20 of the EA 2010 applies to schools in relation to: (a) deciding who is offered admission as a pupil; and (b) provision of education or access to a benefit, facility or service. The latter encompasses the operation and application of a school’s behaviour policy, including in relation to sanctions and exclusions. The First-tier Tribunal erred in holding it had no jurisdiction to consider a claim of reasonable adjustments in relation to the behaviour policy, including in relation to detentions and exclusions. (Stout, J, paragraph 3 of summary of decision)
Local authority conduct in SEND Tribunal appeals Expand JF, R (on the application of) v London Borough of Croydon and the Special Educational Needs and Disability Tribunal [2006] EWHC 2368 (Admin): The local authority’s role in a SEND Tribunal appeal is to assist the SEND Tribunal by making all of the relevant information available, including information which is unhelpful to its own case. LM v Birmingham City Council (SEN): [2026] UKUT 127 (AAC): This case adds weight to an argument that the LA should make sure the working document incorporates sections A and E as well as the sections under appeal. The Upper Tribunal said those 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 these sections before it to provide context for what it has to decide. London Borough of Hillingdon v AP and SP [2024] UKUT 388 (AAC): Local authorities (LAs) have duties to help the SEND Tribunal deal with appeals justly and fairly. This includes avoiding delay, cooperating, and placing all of their cards on the table. LAs need to properly prepare, this may involve raising points or options with the SEND Tribunal during the appeal rather than trying to introduce alternatives to the SEND Tribunal naming the parent’s choice of school after its made its decision to argue that it should have decided differently. PS v LB of Wandsworth (SEN): [2025] UKUT 239 (AAC): This case reminds us that if a parent’s conditional right to a section 38(3) CFA school can be dislodged under section 39(4) CFA 2014 on appeal, and neither party asks the SEND Tribunal to consider an alternative school, then the SEND Tribunal will name an appropriate type of placement. This does not mean that afterwards an LA can simply agree to remove the name of a child on the roll of their special school without consulting with their parents as a result. It also reminds us that: if parents or young people are concerned that the setting they want named may not be, and/or they feel strongly opposed to the placement proposed by the LA, they should put forward an alternative setting for the SEND Tribunal to consider naming when the SEND Tribunal makes decisions, it can do so on the reasonable expectation that the LA will comply with its legal duties, and we must all take care when using AI-generated content, as this is not always reliable.
Health care provision in Section G of an EHC plan Expand R(A) v North Central London Integrated Care Board [2024] EWHC 2682 (Admin): The responsible commissioning body (usually the local ICB) has an absolute duty to arrange the health care provision set out in Section G of an EHC plan under section 42(3) of the Children and Families Act 2014. It cannot simply ask someone else to put it in place, it must make sure it has in fact been put in place. If it hasn’t been put in place, it must take further reasonable steps to arrange it.
Delays in EHC needs assessments Expand W, R (On the Application Of) v Hertfordshire County Council [2023] EWHC 3138 (Admin): The LA had 20 weeks from the date of receiving the original request to carry out an EHC needs assessment to issue the final EHC plan, and was late in doing so. The High Court emphasised the strict obligations in The SEND Regulations 2014, seeing these as hard edged legal duties which will be breached every time an EHC plan is issued late unless exceptions in the Regulations apply. JSC (A Child, By Her Litigation Friend, JKC), R (On the Application Of) v Cambridgeshire County Council [2026] EWHC 68 (Admin): This case confirms that the legal deadlines set out in The SEND Regulations 2014 for the completion of EHC needs assessments are mandatory. Unless limited exceptions apply, local authorities will be acting unlawfully if they fail to meet them and staff shortages are not a lawful reason.