Question 1

My child can’t attend school currently. Their school has been working with our LA to organise alternative home education. Funding for tuition has run out. The LA isn’t responding to requests for more funding and tuition has stopped. What can we do?

Accepted Answer

It is the local authority’s (LA) duty to “make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” This is set out in section 19 of the Education Act 1996.

If your LA has stopped funding your child’s alternative education and no other arrangements are in place for them to receive suitable education, then your local authority is in breach of its legal duty under section 19.

You can take action. You can write to your LA to tell it that it is in breach of its duty under section 19 of the Education Act 1996. If your child has an EHC plan and is not receiving the special educational provision in it, then also tell your LA about this and that it is in breach of section 42 of the Children and Families Act 2014.

In your letter you should say that if the LA does not provide a satisfactory response within 5 working days, setting out how and when the education your child is entitled to will be put in place, you will take advice on legal action including judicial review.

You can use our template letter 22 and adapt it to refer to your situation. This letter is Template letter 22: asking the local authority to arrange alternative education.

If you send this letter and the LA does not provide a satisfactory response, you have two further options:

if the situation is urgent and a complaint would take too long to sort out, you could take advice on starting a process called judicial review, or
you may prefer to complain using your LA’s complaints process but first check how long this would take. A compulsory school age child not receiving suitable, full-time education is a very serious and urgent matter and your LA’s complaints process may take too long and therefore not be appropriate.

You can find out more information about these topics on our website:

Compulsory school age

Judicial review

Taking action when things go wrong with a local authority

Alternative education for children who cannot attend school

Enforcing your EHC plan

Question 2

My child is unable to attend school due to mental health needs. They are still on the register of their school. Who has a duty to make sure education is put in place for them – the school or my local authority?

Accepted Answer

Your local authority (LA) has this duty, even if your child is on their school’s register.

The law says that “Each local authority in England shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.” This is set out in section 19 of the Education Act 1996.

Statutory guidance also confirms that this duty on your LA “applies whether the child is on the admission register of a school or not and whatever type of school they attend." You can find this on page 18 of the Alternative provision guidance. Your LA should follow this guidance unless there is a good reason not to.

The guidance also says as soon as it is clear a school can no longer support a child’s health needs and provide suitable education, then the school should speak to the LA about putting alternative education in place. This is on page 22.

For more information on:

the LA’s duty to secure alternative education, please see our alternative education for children who cannot attend school page.
what action schools need to take when a child is missing school due to illness, please see our illness page.
what steps you can take if your child is unable to attend school due to mental health difficulties such as school anxiety, please see our school anxiety page.

Question 3

My child’s school has asked me if I want to consider a managed move to a new school. What is this, and do I have to agree to it?

Accepted Answer

What is a managed move?

A managed move is where a pupil permanently moves from one mainstream school to another and can be used to give pupils at risk of permanent exclusion a fresh start.

They are voluntary moves, that should only occur when it is in the pupil’s best interests.

Your child’s school should be able to show that they have tried appropriate initial interventions first such as assessments of your child’s needs and arranging any relevant support.

A managed move is different to an off-site direction or a managed transfer. An off-site direction is where a pupil is sent to temporarily attend another educational setting for the purpose of improving their behaviour, before returning to their school. You can find out more information on off-site directions below. Some areas also send pupils to an alternative provision Academy or pupil referral unit, not to another mainstream school, and call this a ‘managed transfer’.

Do parents have to agree?

No. Managed moves require the consent of the parents, the school the child is moving from, and the school they are moving to.

You should not feel pressure to agree to a managed move, such as your child’s school saying they will permanently exclude them if you don’t agree to a managed move. Your child’s school can only lawfully exclude a pupil for a disciplinary reason, not because of a parent’s refusal to agree to a managed move.

If you feel you are being pressurised or are unhappy about a proposed move, you can make a complaint to the school’s governing body. We explain how in the link below.

If you want your child to remain at the current school, you may wish to discuss off-site direction or other appropriate interventions with the Headteacher/Principal, as well as putting in place any further support needed to enable your child to remain at the current school.

If you do not agree with the managed move to the school which is being proposed, but there is another school you think would be suitable for your child, you can apply yourself for a place at a new school by making an “in-year application.” However, if your child has an EHC plan, a move to a different school must be dealt with through the legal process for amending the plan.

What happens if we do agree to a managed move?

If everyone agrees the move should happen, then the two schools should make sure all relevant information about your child is shared. Once the move has happened, your child’s name will come off the out-going school’s register and go onto the new school’s register. There should not be a trial period.

If your child has special educational needs and is receiving SEN Support, this should continue in the new school. The new school must do all that it can to meet your child’s special educational needs. This is called the ‘best endeavours’ duty.

If your child has an EHC plan, then the out-going school should contact the local authority before the managed move. The local authority will need to amend Section I of the EHC plan to name the new school once the move has happened. To do that, it will need to follow the legal process for amending the plan, including giving you time to make comments on a draft version. Once the new mainstream school is named in the EHC plan, it will have a duty to admit your child.

For more information on these topics, please see:

Mainstream schools

School suspensions and permanent exclusions guidance which explains how managed moves should happen.

Directing pupils off-site

Taking action when things go wrong with/at a nursery, school or college

What are special educational needs

The ‘best endeavours’ duty

Changing an EHC plan

My child has an EHC plan which names a school. However, the school is refusing to admit them. Can schools refuse to admit children with EHC plans? What can I do? FAQ which explains the duty to admit.

Question 4

My child has been removed from class numerous times when he's experiencing emotional dysregulation and he is sent to a room where staff stand outside so he can't leave until he is calmer. They're calling this isolation. Is this right?

Accepted Answer

A: No. In this situation, the school should be classifying this removal as seclusion (a safety measure), and not isolation (a punishment or penalty).

Schools have a range of tools available to them to support pupils and maintain discipline or safety. All of these tools need to be used in compliance with legal duties, including the Equality Act 2010.

Some of these tools are sanctions (punishments), which are used in response to breaches of school behaviour policies for example. This can include isolation, suspension and permanent exclusion. Others are safety measures, such as seclusion.

Guidance for schools on the use of isolation explains that isolation (which it calls removal) may be used as a response to serious misbehaviour (page 23). It is where a pupil, for serious disciplinary reasons, is required to spend a limited time out of the classroom at the instruction of a member of staff.

Seclusion is different. It is a safety measure where a pupil is separated from others (except from staff) and either their exit is obstructed/prevented or they believe they will be punished if they leave the place. It is used when they are experiencing high levels of emotional or behavioural dysregulation, and acting without intent.

The guidance on isolation says staff should ensure that pupils are never locked in the room of their removal. There may be exceptional situations in which it is necessary to physically prevent a pupil from leaving a room in order to protect the safety of pupils and staff from immediate risk, but “this would be a safety measure and not a disciplinary sanction” (page 24 of the guidance on the use of isolation).

Guidance on the use of safety measures, called Restrictive interventions, including use of reasonable force, in schools (effective from 1 April 2026), recognises that that when a pupil is experiencing high levels of emotional or behavioural dysregulation:

they may be confined to a place away from others and prevented from leaving
this approach should only be used as a safety measure to protect others from harm, and
the pupil is not acting with intent.

Seclusion, as defined in the guidance, is not a disciplinary response to deliberate or wilful misbehaviour (page 8 of the restrictive interventions guidance).

Here is a quick summary of the difference between isolation and seclusion:

Isolation	Seclusion
Staff instructs a pupil to spend a limited time out of the classroom.	Pupil is separated from others (except from staff) and either they cannot leave the place or they believe they will be punished if they leave.
Used in response to deliberate or wilful behaviour.	Used when a pupil is experiencing high levels of emotional or behavioural dysregulation and others need to be kept safe.
The focus is to enable the pupil to continue with their learning.	The focus is to enable the pupil to regulate their emotions.
The behaviour policy should explain the principles the school uses to decide the length of time isolation may last for.	As soon as the immediate risk of harm has reduced, the pupil should be allowed to leave.
The school should inform parents on the same day if isolation is used.	The school must follow the recording and reporting rules if seclusion is used.
Repeated use of isolation may mean the pupil is at risk of more serious sanctions, such as suspension or permanent exclusion.	Repeated use of seclusion should not place a pupil at risk of disciplinary sanctions.

We have more information on isolation and seclusion on our website, and you can get in contact if you need more support.

Question 5

My child is experiencing challenges keeping themselves emotionally regulated at school. The school is sending them home to calm down, which at first I agreed it could do. However, is this lawful? What can I do?

Accepted Answer

‘Informal’ or ‘unofficial’ exclusions, such as sending a pupil home to cool off, are unlawful even if you agree to it.

The statutory guidance on exclusions says an “informal or unofficial exclusion, such as sending a pupil home ‘to cool off’, is unlawful when it does not follow the formal school exclusion process and regardless of whether it occurs with the agreement of parents.” (paragraph 20). We also have information on our website about informal exclusions.

You can take action to remind the school what the statutory guidance says about unlawful exclusions.

Your child might be experiencing these challenges because they have special educational needs which are not being met, and if so there are further steps you can take.

Rather than send your child home to calm down, the school should be doing all that it can to secure the provision your child requires to meet their special educational needs. This is called the ‘best endeavours’ duty and we have more information on this on our website. You could use our template letter to remind the school of its duties.

If your child does not have an EHC plan you could also consider requesting an EHC needs assessment, so your child’s needs and the provision required to meet them are properly understood. You can use our template letter to make that request too.

If your child already has an EHC plan and is experiencing these challenges, it might be that the plan needs changing. You can appeal the contents of it if recently issued, or ask for changes at the next annual review (or ask for an early review if that is some time away).

Question 6

My child has an EHC plan. As a family we are going abroad for a while for my work. We are planning on coming back to our area. What will happen to their EHC plan whilst we are abroad?

Accepted Answer

Before we answer the question, let’s look at the law that applies when a child has special education needs and an EHC plan is in place for them.

When is an LA responsible for a child with special educational needs?

A local authority (LA) is responsible for children and young people who:

have been identified by the LA or brought to its attention
have or may have special educational needs, and
are in its area.

This is set out in section 24 of the Children and Families Act (CFA) 2014.

When can an LA decide to cease to maintain an EHC plan?

When there is an EHC plan in place, an LA cannot decide to cease to maintain (stop) it unless one of two grounds applies. These are that either 1) the LA is no longer responsible for the child or young person, or 2) the LA decides it is no longer necessary for the plan to be maintained (section 45 CFA 2014).

Even if one of those grounds does apply, the LA does not have to cease to maintain the plan and can decide to continue maintaining the plan. The LA may decide to cease to maintain the plan but does not have to.

Can a child be ‘in the LA’s area’ even if they temporarily leave it?

Yes. If your child is due to temporarily leave the area, your child will not be physically in the LA’s area. However, your child may still be what’s called ‘ordinarily resident’ in the LA’s area. If so, the LA remains responsible for your child, and this means it cannot decide to cease to maintain the EHC plan.

Recent case law has made clear that if a child or young person with an EHC plan goes abroad or to a different part of England, even for lengthy periods of months or years, they can be considered ‘ordinarily resident’ in the LA’s area. This will depend on the facts in each situation. If you are keeping your house in the area whilst you are away, the job abroad is for a fixed termed contract, you will return to the LA’s area for schooling, this all suggests that your child may be ‘ordinarily resident’ in the area.

What can the LA do whilst you are out of the country?

Your LA must maintain your child’s EHC plan if your child is ‘ordinarily resident’ in the LA area.

While you are away and making suitable alternative arrangements for your child’s education, the LA can decide to “pause” or “freeze” your child’s EHC plan until you return. For this reason, before you travel it’s a good idea to let your LA know:

when you are moving away
why your child remains ‘ordinarily resident’ – point out all the facts showing you intend to return to the LA’s area, and
if you can, when you intend to return to its area.

If you need more support, please contact us for advice.

Question 7

I'm appealing to the SEND Tribunal. Before making its decision, the LA didn't contact me or ask for my views. Is there a legal process the LA must follow before making decisions? What can the SEND Tribunal do if the process was not followed?

Accepted Answer

Before making certain decisions, a local authority (LA) must follow required legal processes, such as consulting with a parent or young person. These decisions are:

a decision not to secure an EHC needs assessment, or a needs re-assessment for a child or young person
a decision not to issue an EHC plan
where an EHC plan is maintained for a child or young person, decisions about:

the special educational needs as specified in the plan
the special educational provision specified in the plan, or
the school or other institution (or type) named in the plan

a decision not to amend or replace an EHC plan it maintains for a child or young person following a review or re-assessment, or
a decision to cease to maintain (stop) an EHC plan.

Recent case law confirms that if an LA makes one of these decisions without following the correct legal process, the SEND Tribunal can decide that the LA’s decision is invalid and set it aside. This will depend on the seriousness and significance of the LA’s procedural faults.

When you make your appeal, you should:

explain why the relevant legal test has (or has not, if relevant) been met, and
detail any procedural faults in the LA’s decision-making process, and what impact that had

on your appeal form so that the SEND Tribunal is made aware and include any evidence you have.

If you have already submitted your appeal, you can do this when you submit further evidence.

If you need more support, please contact us for advice.

Question 8

I've received my child’s draft EHC plan. Section F (where I expected to see the special educational provision) is vague. My LA says it's fine, as the school will detail the provision in a separate document following the White Paper. Is that right?

Accepted Answer

No. Local authorities (LAs) must follow the law.

The Schools White Paper contains proposals which are open to consultation. It does not change the law.

EHC plans must specify a range of things, including special educational provision. This is set out in section 37(2) Children and Families Act 2014, regulation 12 of The SEND Regulations 2014 and case law.

The law says that provision cannot be left to the school to decide. Please see our What should be in the sections relating to education (Sections B and F) page for more information.

You can learn more about an LA’s duty to specify special educational provision on our website.

If you are unhappy with how your child’s special educational provision has been specified in the final EHC plan, you can take action.

Question 9

My local authority says it wants to press ahead with the proposals set out in the Schools White Paper. It has sent to me a list of schools to choose from. Do I have to pick one of these schools?

Accepted Answer

No. The law has not changed.

The plans set out in the Schools White Paper are simply proposals. They are not law. Your local authority (LA) must continue to apply the law, including in respect of placement for children and young people with EHC plans.

You can read about your rights to request a particular school or other setting to be named in an EHC plan on our website.

Question 10

I have a privately instructed Occupational Therapy (‘OT’) report which I would like to submit as evidence in an appeal to the SEND Tribunal, but it does not comply with the new rules on evidence. I have not yet submitted my appeal, what should I do?

Accepted Answer

In this situation you can explain clearly in the ‘Reasons for appeal’ section of the SEND 35 appeal form why the OT report is relevant to your appeal, for example because it supports the changes you are requesting to Sections B and F of the EHC plan, and that (if applicable) you are unable to obtain any other OT report at this stage.

Once your appeal has been registered, you can then use the SEND 7 ‘Request for Change’ form process explained here to request permission from the SEND Tribunal to admit the OT report in full, and if this is not acceptable, to admit those pages of the OT report which support the changes you are requesting to Sections B and F of the EHC plan.

Question 11

My child is in Year 9 with an EHC plan. How can I make sure that their EHC plan reflects what they want to do as they get older and who can provide advice on this?

Accepted Answer

You can do this during the annual review process. The SEND Code of Practice, 2015 (paragraph 8.9 to 8.12) makes it clear that in annual reviews from Year 9 onwards, LAs must include a focus on preparing for adulthood. The planning must be based on the individual’s "aspirations and abilities, what they want to be able to do when they leave post-16 education or training and the support they need to achieve their ambition".

In terms of who can provide advice and information, this can be any professional who is involved with the child or young person and familiar with their needs and can include the educational setting the child or young person attends as well as social care and health care professionals. It is also a good idea to check your LA’s ‘SEND Local Offer’ for details of any teams you can contact for advice and support with preparation for adulthood and independent living and ask them to contribute to the annual review process.

Please see our Annual reviews in Year 9 and beyond page for more information.

Question 12

Have any legal tests or thresholds changed following the Schools White Paper?

Accepted Answer

No. The Schools White Paper sets out a series of proposals the Government is considering. It does not change the law.

Your local authority (LA), and the SEND Tribunal, must continue to apply the law found in the Children and Families Act 2014, The SEND Regulations 2014, the Education Act 1996 where it applies, and the Equality Act 2010 where relevant. It must also continue to apply case law and have regard to the Code.

On appeal, you should continue to show with evidence why the legal test for an EHC needs assessment or for an EHC plan has been met, for example, or why the legal test has not been met in a cease to maintain appeal, for example.

You can find more information on appeals on our website.

Question 13

Can the SEND Tribunal still order a setting to be named in an EHC plan?

Accepted Answer

Yes. The SEND Tribunal on appeal has the power to order a local authority (LA) to name a setting, or type of setting, in an EHC plan. It can also agree that a child or young person should receive their education otherwise than in a nursery, school or college (sometimes called EOTIS, or EOTIC) if it would be inappropriate for their special educational provision to be made in such a setting.

You can learn more about how to ask for a particular setting or EOTIS on our website.

The Government has proposed in the Schools White Paper that the SEND Tribunal have the power to order an LA to name a school removed. However, that is a proposal, not law, and until the law is changed (if it is) then the SEND Tribunal continues to have this power.

You can continue to ask for a particular setting to be named in any appeal involving Section I (placement), and we have information to help you.

Question 14

Is my local authority’s duty to put in place suitable, alternative education changed by the Schools White Paper?

Accepted Answer

No. Your local authority (LA) still has a legal duty to secure suitable, full-time alternative education for any child of compulsory school age who is not receiving education because:

illness is preventing them from being able to attend school
they have been permanently excluded from school, or
of any other reason,

under section 19 of the Education Act 1996.

You can find more information on temporary education and a template letter you can use to request it on our website.

Question 15

My local authority has said it is keen to adopt SEND reforms early. Can it do this?

Accepted Answer

Your local authority (LA) must continue to act lawfully. All bodies with duties under the Children and Families Act 2014 and The SEND Regulations 2014, Education Act 1996 and Equality Act 2010 for example must make sure their decisions and processes are in line with the legal frameworks. They must not jump the gun and act unlawfully when adopting new processes or policies.

Question 16

When might the law change now the Schools White Paper, 'Every child achieving and thriving', has been published?

Accepted Answer

Every new law is subject to scrutiny before coming into force, following a process.

At the start of the process, the government will publish a ‘bill’.

A bill is a proposed law which is introduced into Parliament. No legal change will take effect until the bill has been debated (which includes considering amendments), approved by each House of Parliament (the Commons and the Lords), and has received Royal Assent.

Only then does a bill become law, known as an ‘act’.

Even once passed into law, not all acts take immediate effect. Sometimes they do not commence until a later period.

We may not see some elements of legislative change until 2030 if recent speculative comments are correct.

You can find out more about the legislative process online.

Question 17

Will the SEND Tribunal still apply the current law to appeals registered now?

Accepted Answer

Unless and until any new legislation comes into force, the current legal framework applies and will be applied by the SEND Tribunal. You can find out more on our appealing to the SEND Tribunal pages.

Question 18

Should families continue with appeals now that the Schools White Paper 'Every child achieving and thriving' has been published?

Accepted Answer

Unless and until new law is made and in force, families should continue to exercise their legal rights. And, more importantly, no body with duties under the current legal framework (for example, the Children and Families Act 2014, the Education Act 1996 and the Equality Act 2010) should stop complying with those duties.

All of IPSEA’s pages are up to date and reflect the current law. If you need support, please contact us.

Question 19

Delays in EHC needs assessments

Accepted Answer

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.

Question 20

Should a school provide SEN Support or make an EHC needs assessment request as part of its ‘best endeavours’ duty even if a parent disagrees with the school?

Accepted Answer

Yes.

As we explain on our ‘best endeavours’ duty page, certain settings must do everything that could reasonably be expected of them to put in place special educational provision for their pupils with special educational needs (SEN).

This is a legal duty, which comes from section 66 of the Children and Families Act 2014.

This duty applies to all children and young people with SEN in those settings. It does not require parental consent or for both parents to agree.

If the school has identified that a pupil has SEN, it must do everything it can to meet that child or young person’s SEN – even if a parent disagrees.

Statutory guidance called the Code sets out how schools should meet this duty, by making SEN Support, involving specialists and making EHC needs assessment requests where appropriate.

The Code says:

“Where a pupil is identified as having SEN, schools should take action to remove barriers to learning and put effective special educational provision in place” (paragraph 6.44)

The Code is clear that parents should be involved in identifying needs and planning support, as well as in reviewing progress. Parents should also always be involved in any decision to involve specialists (paragraph 6.59 of the Code).

If a parent has concerns about the school making SEN Support, involving specialists or making an EHC needs assessment request, they can raise this with the school who should listen to their concerns.

A parent can refuse to agree to a specialist meeting their child to provide an assessment of needs, for example. However, the school must still meet its legal duty if the pupil has SEN and may decide to still involve a specialist to provide advice to it even if they don’t directly work with the child.

If there is a conflict between parents as to their child’s education, government advice sets out how schools should respond.

Question 21

My LA is carrying out an EHC needs assessment for my child in year 6. I’ve heard that EHC plans for year 6 must be reviewed and amended by 15 February. Will the LA review and amend it straight away? What if it isn’t issued until after 15 February?

Accepted Answer

Local authorities (LAs) have a legal duty to review and amend an education, health and care (EHC) plan before a child or young person transfers from one phase of education to another, following a legal process.

For a transfer from primary to secondary school, the annual review must be completed and, where necessary, EHC plan updated, by 15 February in the year of transfer.

For those transferring from secondary school to a post-16 institution, the EHC plan must be reviewed and amended by 31 March in the year of transfer.

These are long stop deadlines, and the duty to review (and where necessary amend) EHC plans, are set out in Regulation 18 of The Special Educational Needs and Disability Regulations 2014 They are strict legal deadlines and do not contain any exceptions.

However, the situation can be tricky if the first EHC plan is due to be (or has been issued) close to these deadlines.

Here we explain what the LA must do, and what you should do when you receive the draft EHC plan:

If	Then
an LA issues a first EHC plan in a child's last year before a phase transfer well before the February 15/ March 31deadline, and it has only named a setting (or type) for the remainder of the current academic year	regulation 18 will apply. The LA will be required to review (and if necessary amend) the newly issued EHC plan by the relevant legal deadline to name the setting, or type of setting, the child or young person will attend from the following September. You can take action if your LA has missed, or is likely to miss, the deadline.
If	Then
an LA is due to issue a first EHC plan in a child's last year before a phase transfer too close to the February 15/March 31 deadline to be able to lawfully review and amend the plan by the deadline	Parents and young people should make requests for a particular setting for both the current and next academic year when they receive the draft EHC plan. The LA must name the: current setting, or the setting (or type) it is intended they attend until the end of the academic year, and the name, or type, of setting the child or young person will attend from the following September when it issues the final EHC plan. If it does not name the setting (or type) for the next academic year in the new education phase, you can appeal (and mediate) this. You should ask the SEND Tribunal to prioritise this appeal as an appeal involving Section I for a child or young person due to move to a new phase of education.
If	Then
an LA is due to issue a first EHC plan in a child's last year before a phase transfer after the February 15/ March 31 deadline	regulation 18 won't apply as the deadlines referred to in that regulation will have passed by the time the plan is issued. When making their placement requests, parents and young people in this situation should ask their LA to name: the current setting, or the setting (or type) they want the child or young person to attend until the end of the academic year), and the setting they want the child or young person to attend from September in the issued EHC plan. If it does not name the setting (or type) for the next academic year in the new education phase, you can appeal (and mediate) this. You should ask the SEND Tribunal to prioritise this appeal as an appeal involving Section I for a child or young person due to move to a new phase of education.

Question 22

I'm appealing because I'd like an independent school named in section I of my child’s EHCP. I'd like to send my child to the school and pay the fees whilst I wait for the appeal. If successful, will the SEND Tribunal order my LA to pay me back?

Accepted Answer

Generally speaking, no. With long waits for SEND Tribunal hearings, it is understandable you may wish to do this, however it is important your decision is made with the knowledge the SEND Tribunal is highly unlikely to order your LA to refund you for this type of cost, even if your appeal is successful.

Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not generally ended with a direction for one party to pay another’s costs.

A party can apply for something called a “costs order”, but the circumstances under which the SEND Tribunal can make one are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case.

Costs orders are therefore the exception rather than the rule and in our experience are rare.

Where the SEND Tribunal does see fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. There is currently no case law to tell us whether costs “incidental to” a SEND Tribunal appeal could include the type of costs you have asked about.

However, existing case law does tell us that when deciding whether to order costs, the SEND Tribunal can only consider conduct during the appeal itself and not any conduct which occurred before the appeal was registered. This means the simple fact your LA decided not to name the school in the EHC plan in first place would not warrant it being ordered to pay you back, even if the SEND Tribunal decides this was the wrong decision and orders the school to be named.

Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed?

No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.

Question 23

If my appeal is successful, will the SEND Tribunal order my LA to pay me back for the costs I have incurred?

Accepted Answer

Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not generally ended with a direction for one party to pay another’s costs.

A party can apply for a “costs order” but the circumstances under which it can or will do so are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case.

Costs orders are therefore the exception rather than the rule and in our experience are rare.

If the SEND Tribunal does see fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. Even if your appeal is successful, the SEND Tribunal is highly unlikely to order your LA to refund you for costs incurred by you choosing to

pay for the special educational provision you think should be in your child's EHC plan whilst you wait for an appeal about the content of the EHC plan to be heard, or
pay an independent school’s fees so your child can attend whilst you wait for the SEND Tribunal to decide whether that school should be named in their EHC plan.

Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed?

No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.

Question 24

I'm appealing because section F of my child’s EHC plan should contain provision for speech and language therapy. I want to pay privately whilst I wait for my appeal to be heard. If successful, will the SEND Tribunal order my LA to pay me back?

Accepted Answer

Generally speaking, no. With long waits for SEND Tribunal hearings, it is understandable you may wish to do this, however it is important your decision is made with the knowledge the SEND Tribunal is highly unlikely to order your local authority (LA) to refund you for this type of cost, even if your appeal is successful.

Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not usually ended with a direction for one party to pay another’s costs.

A party can apply for something called a “costs order”, but the circumstances under which the SEND Tribunal can make one are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case.

Costs orders are therefore the exception rather than the rule and in our experience are rare.

Where the SEND Tribunal sees fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. There is currently no case law to tell us whether costs “incidental to” a SEND Tribunal appeal could include the type of costs you have asked about.

However, existing case law does tell us that when deciding whether to order costs, the SEND Tribunal can only consider conduct during the appeal itself and not any conduct which occurred before the appeal was registered. This means the simple fact your LA decided not to include the provision in the EHC plan in first place would not warrant it being ordered to pay you back, even if the SEND Tribunal decides this was the wrong decision and orders the provision to be included.

Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed?

No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.

Question 25

My child’s EHC plan annual review is coming up and their school is arranging the meeting. I would like their therapist to provide information to the school before the meeting, and to attend it. Is this possible?

Accepted Answer

Yes, it is possible.

Under The SEND Regulations 2014, before an annual review meeting takes place the person organising it must get information from:

you
the head teacher of the setting
an LA SEND officer
a health care professional which the responsible commissioning body (usually the ICB) has identified as someone who can provide advice about health care provision about your child, and
an officer from the LA’s social care team.

These people must also all be invited to attend the annual review meeting (but don’t have a duty to attend).

The regulations do not say that a particular person within healthcare who is working with your child must provide information (or be invited).

However, if you want a particular healthcare professional such as your child’s therapist to attend, firstly check to see what your child’s EHC plan says and:

If:	Then:
Section F of the plan includes provision that your child’s therapist attends annual review meetings and contributes information beforehand	your local authority (LA) must secure this (or be in breach of section 42(2) of the Children and Families Act 2014)
Section F of the plan does not include this provision and is silent as to information being obtained before, and attendance at, annual review meetings	ask: the school to ask the therapist to provide information and to attend, using its ‘best endeavours’ duty (if this duty applies) (although it cannot make the therapist agree to this), or the health service yourself if the therapist can be the professional it identifies as the person from whom information must be provided and attendance be invited. If you do this, explain why it is important for that person to contribute and be invited (for example, because they have been closely working with your child and know their needs well), and for Section F to be amended as part of this annual review to specify that the therapist will provide information prior to and be invited to annual review meetings, and how much time should be allocated for both providing information and attending meetings.

Question 26

My child does not have a school place and my local authority has failed to arrange alternative education. I have complained to it about this. Does this mean now I cannot use the judicial review process?

Accepted Answer

Making a complaint may mean that you can no longer use the judicial review process.

Judicial review involves a court looking at the decision of a public body and deciding whether it was made in a lawful, fair and reasonable manner. 

It is used when the matter is urgent and cannot be resolved any other way.

Sometimes, following a local authority’s (LA) complaints procedure will not be a realistic and effective way of solving the issue. For example, when an LA is acting unlawfully, the issue is serious and urgent and the complaints process would take too long to resolve it.

If you have made a complaint, this process will have started which suggests there is another way of resolving the matter and/or that the matter is not urgent.

However, please get legal advice from a solicitor as soon as possible to see whether, in your situation, judicial review may still be available as a remedy. This might be because for example the situation was not urgent before but has become urgent since you made your complaint.

Question 27

My child has an EHC plan which names a school. However, the school is refusing to admit them. Can schools refuse to admit children with EHC plans? What can I do?

Accepted Answer

You can take action.

When a child or young person has an EHC plan which names:

then that setting must admit them. This is set out in section 43 of the Children and Families Act (CFA) 2014.

There is no duty here for an independent setting to admit your child or young person.

Action you can take - school

What action you can take against the school depends on whether the setting is a public body, and whether the matter is urgent and cannot be resolved any other way.

It might be that a process called judicial review can be used. This involves a court looking at the decision of a public body and deciding whether it was made in a lawful, fair and reasonable manner. It is used as a last resort, when the matter is urgent and cannot be resolved any other way (such as by making a complaint because the process would take too long for such an urgent and serious matter).

However, as a course of action judicial review is not always available.

Here we explain what action may be appropriate, depending on the circumstances.

Judicial review may be appropriate if:

if	and	then
your child or young person has named on their EHC plan: a maintained nursery or school an academy, or an institution in the further education sector	the matter is urgent and cannot be resolved otherwise	judicial review may be an appropriate course of action. Please see our page on judicial review for more information.
your child or young person has named on their EHC plan: a maintained nursery or school an academy, or an institution in the further education sector	the matter is not urgent and can be resolved otherwise, such as by making a complaint	judicial review may not be an appropriate course of action. Please see our page on complaining to/about a setting for more information.

However, judicial review will not be available if:

if	then
your child or young person has named on their EHC plan: a non-maintained special school, or a section 41 setting	judicial review will not be available. These settings are not public bodies and their decisions and acts cannot be reviewed in this way. You can however make a complaint about a breach of the section 43 CFA 2014 duty. Please see our page on complaining to/about a setting for more information.
your child or young person has named on their EHC plan an independent setting.	judicial review will not be available. These settings are not public bodies and their decisions and acts cannot be reviewed in this way. There is no duty to admit your child, so contact your local authority to see what action, if any, it can take against such a setting. You can also express your views to the school about its refusal to admit and ask it to reconsider.

Action you can take - local authority

Special educational provision

If your child has an EHC plan, your local authority (LA) has the absolute duty to secure the special educational provision specified in Section F of their EHC plan.

If the school’s actions (refusing to allow your child to attend school) mean your child is without this special educational provision, you should take action by alerting the LA to the matter. You can use our template letter to help you.

If that does not resolve things, take legal advice on judicial review if the matter is urgent and cannot be resolved otherwise.

Alternative education

If your child is of compulsory school age and the school’s actions (refusing to allow your child to attend school) mean your child is without a suitable full-time education, then you should request that your LA puts in place suitable, alternative education.

You can use our template letter and information to help you.

Question 28

Understanding home to early years setting, school or college transport

Accepted Answer

Supporting children and young people with special educational needs and disabilities (SEND) to receive the education they are entitled to also means understanding their legal rights to home-to-early years setting, school or college transport. This bite-sized e-learning course gives a clear and practical overview of the law and guidance on transport for children and young people with SEND.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Short videos, interactive quizzes and online resources

Find out more

What you’ll learn

This course introduces you to the legal entitlements children and young people with SEND have to travel arrangements, covering:

The law and statutory guidance that apply

Transport for children under compulsory school age

Transport for compulsory school-age children, including who qualifies as an “eligible child” and what counts as a “relevant educational establishment”

Transport for young people aged 16–25

Applying for travel arrangements and challenging transport decisions

What the law says about transport for children and young people receiving education otherwise than in school

Please note: this course relates the law as it applies in England. Different legislation applies in Wales and Scotland.

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 29

Exclusion from school

Accepted Answer

Pupils with special educational needs (SEN) are more likely to be excluded/suspended than their peers without SEN. This bite-sized e-learning course gives a clear and practical overview of the law and guidance on exclusion from school, explaining the duties of schools and local authorities and the processes that must be followed.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Short videos, interactive quizzes and online resources

Find out more

What you’ll learn

This course covers:

The duties schools and local authorities have in relation to exclusion

Directing pupils off-site to improve behaviour

What happens after both a fixed period exclusion/suspension, and a permanent exclusion

The rules relating to exclusion in independent schools and further education

Please note: this course is intended for families in England. Different legislation applies for families in Wales and Scotland.  

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in-depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 30

Ceasing to maintain an EHC plan

Accepted Answer

This bite-sized e-learning course explains what happens when a local authority decides to cease to maintain an education, health and care (EHC) plan. It provides clear guidance on the law, the procedures that must be followed, and what families can do if they disagree with the decision.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Short videos, interactive quizzes and online resources

Find out more

What you’ll learn

This course covers:

What the law says about ceasing to maintain an EHC plan

The process a local authority must follow when ceasing to maintain an EHC plan

How to appeal to the SEND Tribunal if you disagree with a cease to maintain decision

What to expect at a SEND Tribunal hearing, and what happens afterwards

Please note: this course relates the law as it applies in England. Different legislation applies in Wales and Scotland.

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in-depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 31

Addressing non-implementation of special educational provision

Accepted Answer

This bite-sized e-learning course explains what to do if the special educational provision (SEP) in an education, health and care (EHC) plan is not being delivered. It covers the legal duties on local authorities and schools and the steps families can take if provision is not being made.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Short videos, interactive quizzes and online resources

Find out more

What you’ll learn

By the end of this course, you’ll understand:

The local authority’s legal duty to secure the special educational provision set out in Section F of an EHC plan

Why EHC plans must be specific and clear

What to do if special educational provision is not being made

The “best endeavours” duty on schools, colleges and nurseries

Please note: this course relates the law as it applies in England. Different legislation applies in Wales and Scotland.

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in-depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 32

What an EHC plan should contain

Accepted Answer

This bite-sized e-learning course gives a clear overview of the contents of an education, health and care (EHC) plan. It’s ideal if you require an introduction to EHC plans, or if you’d like a refresher to strengthen your understanding.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Interactive quizzes and online resources

Find out more

What you’ll learn

This course introduces you to the key information about the contents of an EHC plan, covering:

The different sections of an EHC plan and what each must include

The importance of specificity, with key case law

Draft EHC plans, including making changes to a draft plan and naming a school

What to do if you’re not happy with the contents of a final EHC plan

Please note: this course relates the law as it applies in England. Different legislation applies in Wales and Scotland.  

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in-depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 33

Obtaining an EHC plan

Accepted Answer

This bite-sized e-learning course explains the process for obtaining an education, health and care (EHC) plan. It introduces the key legal tests and steps involved, providing an introductory overview.

Format: Online, self-paced

Duration: Around 40 minutes

Includes: Short videos, interactive quizzes and online resources

Find out more

What you’ll learn

This course introduces you to the process of obtaining an EHC plan, covering:

The legal test for an EHC needs assessment

What should happen in an EHC needs assessment

Understanding the legal test for issuing an EHC plan

Please note: this course relates the law as it applies in England. Different legislation applies in Wales and Scotland.

Who is this course for?

This course is designed for:

Parents and carers of children and young people with SEND

Professionals advising families of children and young people with SEND

Anyone wanting a clear overview of this area of the law

Buy now

Want to learn more?

This is a bite-sized course. If you’re looking for something more in-depth, or if you complete this and want to build your knowledge further, you may be interested in our in-depth e-learning courses, which cover key areas of SEND law in greater detail.

View our other training courses

Question 34

The Case Directions say that my local authority needs to get my child’s views as part of our appeal. What does my local authority need to do?

Accepted Answer

When a parent makes a SEND Tribunal appeal about their child, the local authority’s (LA) response to the appeal must include the views of the child about the issues raised by the appeal, or the reason the LA has not gathered the child’s views.

This is required under procedural rules about how appeals are managed by the SEND Tribunal (rule 21(2)(e)).

How LAs need to do this is set out in judicial guidance.

The LA must ask someone to help your child express their views who:

is trusted by your child and usually with whom they have an existing relationship, such as a teacher or social worker, and
understands how your child can best communicate effectively (whether through word, writing, electronic means, sign or drawing, for example).

If you are unhappy with how your LA plans to gather your child’s views, or how this has been done, you should raise it with the LA and remind them of what the judicial guidance says.

Question 35

After appealing sections B, F, and I of my child’s EHC plan, my local authority agreed to make all the changes I wanted to sections B and F. Can I continue with my appeal as I am still unhappy about placement?

Accepted Answer

Yes. Please see below to learn more about what will need to happen next, and what options are available to you.

Sections B and F

As you and your local authority (LA) have reached agreement on these sections (special educational needs and provision), the various changes which have been agreed should be accurately and fully recorded in the working document.

Please check that all the changes you wished to see are reflected in that document. If not, go back to your LA with another version of the working document with any missing amendments now included.

Once you and the LA are happy the working document is complete with all the agreed changes, make that your final version of the document.

Section I

You can continue with the remainder of your appeal. For example, if the LA refused to name the particular school you requested for your child, you can still ask the SEND Tribunal to look at the evidence and decide what school is to be named.

The SEND Tribunal has confirmed that if section I becomes the only remaining issue during the course of an appeal, the parties can ask for a Judicial Alternative Dispute Resolution (JADR) hearing.

JADR involves a SEND Tribunal judge confidentially discussing the appeal with you and the LA, highlighting to both parties the strengths and weaknesses of their arguments, and seeing if agreement can be reached. Please see our further information on what JADR is, and what to expect from a JADR hearing.

If the SEND Tribunal thinks there is a possibility of an agreement being reached it is more likely to agree to your request for JADR. The SEND Tribunal is also keen to manage its volume of appeals and has seen that matters are often resolved in these types of hearings.

You might want to ask for JADR if, for example, your hearing date is some time away because if agreement is reached you won’t need to go to a full hearing.

If you want to make a request for JADR having agreed Sections B and F, you should use the Request for Change form to do this and:

explain on the form that the parties have reached agreement on all remaining issues except for Section I

attach the final agreed version of the working document as explained above, to show the SEND Tribunal what agreement the parties have reached on Sections B and F, and

ask for a JADR hearing in respect of the remaining issue, Section I.

The SEND Tribunal is likely to allow your request for JADR if it is happy with the changes the parties have agreed regarding Sections B and F and it sees there is a possibility of an agreement being reached regarding Section I.

It is much less likely to agree to your request if it considers Sections B and F should not be specified in the manner agreed between the parties, or if there is a not possibility of an agreement being reached regarding Section I at that time.

If a JADR hearing goes ahead and agreement is reached, the judge attending the JADR hearing will draft a consent order which will be sent to both you and the LA. This should provide an order in respect of:

Sections B and F as set out in the final working document provided to the SEND Tribunal when the JADR request was made, as long as the SEND Tribunal is happy with the changes agreed between the parties, and

the agreement reached on Section I in the JADR hearing.

Once this consent order is issued, it is legally binding and the LA will have to meet specific deadlines set out in law.

JADR is a voluntary process however, so if you would prefer to wait until your hearing date and not take part in such a process, that’s fine you can.

If you are not sure about whether to ask for JADR, or want more advice on JADR you can book an appointment to speak with us.

Question 36

When can a school remove a pupil's name from the school's register?

Accepted Answer

A school can only remove a child’s name from its admission register in certain situations. These are set out in regulation 9 of The School Attendance (Pupil Registration) (England) Regulations 2024.

This means that a school can only remove the name of a child from its register when one of these situations applies, as explained in paragraph 218 of the statutory guidance Working together to improve school attendance, 2024.

Here is a summary table describing some situations and whether the name of a child of compulsory school age can be removed from the register:

If	Then
A child’s EHC plan no longer names their current mainstream school, and they have not been registered at another school. This could be because their EHC plan has been amended and now names: only a type of school, or a different school which the child has not been registered at	the school cannot remove their name from its register on this basis. However, this may impact the delivery of the special educational provision set out in the EHC plan and the payment of school fees (if applicable). This will depend on your individual circumstances. Please take advice if you need support on this.
A child has been permanently excluded from their school	the school must remove their name from its register on this basis.
A parent has written to their child’s mainstream school to explain that their child will be receiving elective home education from a particular day (and there is no school attendance order naming that school)	the school must remove their name from its register on this basis.
A child attended an independent school but has left and is no longer a pupil of that school	the independent school must remove their name from its register on this basis.
A child is attending a special school, named in their EHC plan, but the parent wants to electively home educate them	the special school cannot remove their name from its register unless the local authority has agreed to it (or the Secretary of State has agreed, if the local authority has refused).

Please get support if you would like to discuss your child's situation.

Question 37

My child keeps being put in isolation. The school has not formally excluded them yet but has said my child is at risk of being excluded. What can I do? What should the school be doing?

Accepted Answer

Increasingly, schools are using isolation, a serious sanction, as a behavioural management tool. It is often the step before either an exclusion or an off-site direction, and involves a child being confined to a behavioural unit, or being kept apart from their classmates for disciplinary reasons.

What the school should do

Your child’s school should only be using isolation when necessary and for serious disciplinary reasons. Time out of the classroom should be limited, and only at the instruction of a member of staff (page 22 of behaviour guidance for schools).

It should also only be used once other behavioural strategies in the classroom have been attempted, unless the behaviour is so extreme as to warrant immediate removal (pages 22-23 of the guidance). If your child keeps being placed in isolation, ask the school’s SENCO or their teacher what other strategies have been put in place, and why they did not work.

Any sanction in school, including the use of isolation, must be lawful, reasonable, and proportionate and fair. By law, the school must consider whether there are any special considerations relevant to its use (which includes your child’s age, special educational needs (SEN) and any disability). Make clear what special considerations you think apply.

All schools must make sure they do not discriminate and put in place reasonable adjustments for disabled children and young people.

The school should review the support (or lack of) your child is receiving:

What you can do

If you think your child has SEN but is currently without any support, ask the school to follow an ‘assess, plan, do and review’ process to identify and support their needs. This is called SEN Support. If your child is already receiving SEN Support, ask for a review of their support plan, to make sure all of their SEN have been identified, and the right provision (and at the right level) is being put in place. You can refer to the above guidance when you make either of these requests.

If you think the school can and should be doing more to meet your child’s needs, you can use our template letter to alert them to this. Again, remind the school what the guidance says.

You can also ask your local authority (LA) to carry out an EHC needs assessment for your child. Your LA must agree to this if your child has or may have SEN, and they may need support through an EHC plan. You can explain that the school cannot provide the support they need and highlight the number of times they have been put in isolation. You can use our template letter and resources to help you.

If your child already has an EHC plan, ask for changes to be made to it at the next annual review. If that is some time away, ask for an early annual review. A child being at risk of exclusion is a good reason to ask for an early annual review.

You might also want to take action against the school if you feel these incidents (or one of them) have been unlawful, unreasonable, and disproportionate and unfair. This could include making a claim for disability discrimination to the SEND Tribunal (for example, if you think the school failed to make reasonable adjustments for your disabled child).

Question 38

My child has been permanently excluded, and I am going to challenge the decision. I want the exclusion to be deleted from their school record. Is this possible?

Accepted Answer

It is possible, but only in certain situations.

If your child has been permanently excluded, the governing body must meet to consider this and will decide whether your child should be reinstated (allowed back to school). If they think the decision to permanently exclude your child was made lawfully, reasonably, and fairly, they will uphold the head teacher’s decision to exclude. Following this, you can ask for an independent review panel (IRP) to review the governing body’s decision not to reinstate your child. If the IRP decides that the governing body’s decision was faulty, it can tell the governing body to reconsider its decision.

If the governors decide your child should be reinstated (whether following their meeting or following a direction by an IPR to reconsider), this will not lead to the exclusion being deleted from your child’s record. Instead, the record should be updated with the outcome, and the related paperwork will be attached their educational record.

However, there are a few ways in which the exclusion can be deleted from their record.

One way is by making a claim for disability discrimination in the SEND Tribunal. If it agrees that the exclusion was discriminatory, the SEND Tribunal can order that the record of the exclusion is removed (known as expunged). You can make this claim if you think your child:

is disabled and was unfairly excluded, or
isn’t disabled but was discriminated against because the school followed a policy which unfairly disadvantages them in the same way as it disadvantages disabled pupils.

Another way this could happen is if you apply for the decision to be judicially reviewed by a court. The judge could use their discretion to make an order that the exclusion is removed from the record. So, if you want the exclusion deleted from your child’s records in either of these situations, you should ask for this when you make your claim/application so that it is considered part of the order that you are seeking.

Please be aware that you can bring a claim of disability discrimination to the SEND Tribunal against any type of school, including an independent school. However, you can only ask the courts to judicially review a decision made by a public body. This means you cannot ask a court to judicially review a decision to exclude made by an independent school or non-maintained special school, for example.

Question 39

My child has an EOTIS package. What can I do to get help with transport?

Accepted Answer

Some children are eligible for free transport from their local authority (LA) under the Education Act 1996. However, the transport duties in this Act do not apply to children or young people receiving all of the special educational provision in their EHC plan otherwise than in a nursery, school or college.

That said, you can still ask your LA for help with transport for the following reasons:

1. Duty to secure special educational provision

Remind your LA that it has a duty under section 42(2) of the Children and Families Act 2014 to secure all the special educational provision set out in Section F of your child or young person’s EHC plan. You cannot be required to provide any of that special educational provision unless you have voluntarily agreed to.

If your child or young person needs transport to access their special educational provision (such as their therapy sessions, outdoor education group, or tuition centre, for example) ask for transport to be provided as part of the LA’s duty to secure special educational provision. You should mention that without transport being provided your child or young person cannot access the provision, and this means the LA has not secured their provision in breach of its legal duty to.

If you receive from your LA a direct payment for you to arrange and commission the delivery of your child’s special educational provision, your LA is deemed to have ‘secured’ the provision in making this payment. So, it is important to make sure the payment is sufficient to also cover the costs of transport if this is needed.

2. LA’s power to do things that help it meet its duties

Your LA also has a power to do anything (including spending money) which is “calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.” This power is set out in section 111(1) of the Local Government Act 1972.

This means that your LA has the ability and power to provide transport to make sure it complies with its duty under section 42(2) of the Children and Families Act 2014 to secure the special educational provision in your child or young person’s EHC plan.

What to include when you ask for transport

When you ask for transport to and from where your child or young person receives the special educational provision in their EHC plan, you should:

explain why the LA should agree to your request, by referring to section 42(2) of the Children and Families Act 2014 and section 111(1) of the Local Government Act 1972 as set out above
provide your LA with a weekly timetable of your child or young person’s activities, so it can see where your child needs collecting from and to, and when, and
say what transport arrangement for your child or young person would be suitable, including in respect of their special educational needs. For example, if in Section F of their plan it says your child needs 1:1 support at all times, then you should explain to your LA that your child will also need this support during their journeys to and from their various providers.

Question 40

Health care provision in Section G of an EHC plan

Accepted Answer

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.

Question 41

My child is struggling at school and the school has suggested I home educate them. I do not want to home educate my child - do I have to do this? Are there other options?

Accepted Answer

The law says parents of compulsory school age children must make sure their child gets a suitable education. This means it is suitable for their age, ability, aptitude and any special educational needs (SEN) they have.

Whilst parents must make sure their child receives a suitable education, they can choose how their child receives it. Parents can choose to send their children to school, or they can decide to educate them otherwise, at home for example.

Deciding to home educate a child can be a big step and it is a personal decision. There is no duty on a local authority (LA) to help home-educating parents or to fund provision for home-educated children with SEN.

For some children, elective home education is the right step for them and their families, but it isn’t for every child or their parent.

No parent should feel under pressure from a school or an LA to home educate their child, and no school or LA can force a parent to agree to home educate a child.

If you feel your child’s SEN are not being met by their school and you feel you have no other choice but to remove them, or if you feel under pressure to home educate when this is not something you want to do, you can take action.

Remind the school of its legal duties

Remind the governing body (or its equivalent) of your child’s school of its legal duty to make sure the school is doing all that it can to put in place the special educational provision required to meet your child’s SEN. This duty is called the ‘best endeavours’ duty and you can use our template letter to make sure this duty is being met.

The school must also make sure they do not discriminate against disabled children and must put in place reasonable adjustments to avoid disadvantage.

If your child does not have an EHC plan, ask for an EHC needs assessment

An EHC needs assessment is an investigation into a child’s education, health and care needs, what provision is required to meet them, and what outcomes are to be expected as a result of that provision. It is the gateway to an EHC plan, a legal document which carries important duties and rights.

You can request an EHC needs assessment at any time, including if you feel your child’s school isn’t meeting their SEN, if you have been asked to consider home education, or if you are already home educating your child.

Your LA must agree to this request if your child has or may have SEN and may need special educational provision in accordance with an EHC plan.

You can use our template letter and resources to help you make your request.

If you child has an EHC plan, consider if the EHC plan needs changing

If your child already has an EHC plan but you are coming under pressure to home educate them, or you feel the school cannot meet your child’s SEN, then it might be that:

your child’s SEN have changed, and Section B needs to be updated
the special education provision your child requires is missing from Section F
Section F is vague, meaning that your child isn’t receiving what they need or how they need it, and Section F needs to be more specific
you want a different school named in Section I, or
you think it is inappropriate for your child’s special educational provision to be delivered in a school meaning they need to be educated otherwise than in a school, and Sections B, F, and/or I need to be amended.

Whenever your child’s EHC plan is in draft form you have the right to request that a particular nursery, school or college is named in the EHC plan.

Your LA must agree to (and on appeal, the SEND Tribunal must order) your placement request unless limited reasons apply. For example, you may think your child needs a special school placement, and you have the right to request a maintained special school, a special academy school, a non-maintained special school or section 41 school is named.

You can check the status of a school online to see if it is one you have the right to request.

On the other hand, you may feel that no school is suitable for your child, because it is inappropriate for their special educational provision to be delivered in a nursery, school or college. Your LA can arrange for their provision to be made otherwise, such as at home, and the SEND Tribunal can order this too. This is different to elective home education, as here your LA will be responsible for continuing to secure and fund that provision (unlike the case with elective home education).

If your child’s EHC plan has been recently issued, you can appeal its contents to the SEND Tribunal and try to have it changed that way. You can also use your right to mediation to say what changes you would like made to the plan and see if agreement can be reached.

If you don’t have a right of appeal or mediation, you can try to have the EHC plan changed at the next annual review, or ask for an early statutory review if that is some time away.

Question 42

I have been told my child will be excluded unless I decide to home educate them. Is this right?

Accepted Answer

No.

Whenever a pupil is made to leave, or forbidden from attending a maintained school or academy, on disciplinary grounds, this must be done in accordance with the law and statutory guidance on exclusions.

The statutory guidance is clear that pressurising a parent into elective home education to avoid exclusion is an example of what it calls “off rolling”. This is when an unlawful exclusion is carried out and it leads to the child being removed from the school’s register (because the parent wants to avoid the exclusion, so agrees to elective home education).

“A further example of off-rolling would be exercising undue influence over a parent to remove their child from the school under the threat of a permanent exclusion and encouraging them to choose Elective Home Education or to find another school place.” (paragraph 21)

If you feel under pressure to home educate your child to avoid an exclusion, or you have already agreed to home educate your child in this situation, you can take action against the school.

You may also want to tell Ofsted. It considers any evidence of off-rolling and is likely to judge a school as inadequate if there is evidence that pupils’ names have been removed from the school admission register due to the school encouraging a parent to remove their child, and leaders have taken insufficient action to address this.

Tell your local authority too, so it is aware that this is happening in its area. Guidance for local authorities on elective home education confirms that “Schools should not seek to persuade parents to educate their children at home as a way of avoiding an exclusion....” (paragraph 10.5).

If your child is now out of education as a result of the school’s unlawful exclusion, you should contact your local authority and request that suitable alternative education is put in place. We have a template letter you can use to help you.

Question 43

I home educate my child because I felt I had no other choice. I want them to return to school, but with the support they need. What can I do?

Accepted Answer

The decision to home educate a child should always be a genuinely free choice, but we know that many families opt for home education because they feel their child’s special educational needs (SEN) weren’t being met by their school, or because there isn’t a school suitable for their child.

If you are home educating your child because you felt their SEN weren’t being met in school, or you had no other choice, you can take action.

If your child does not have an EHC plan

Go on school visits to see which school you think would suit your child’s SEN and ask to speak with the SENCO. Check what the school’s SEN information report says (you should be able to find this on its website) to see what support it offers children with SEN.

A school must not refuse to admit your child with SEN because it does not feel able to cater for those needs. A mainstream school must also do all that it can to put in place the special educational provision your child's SEN requires.

If you are concerned that your child’s SEN will not be supported in their new setting, or that your child needs (or might need) more or different support than the school provides, you can request an EHC needs assessment. An EHC needs assessment is an investigation into a child’s education, health and care needs, what provision is required to meet them, and what outcomes are to be expected as a result of that provision. It is the gateway to an EHC plan, a legal document which carries important duties and rights.

You can request an EHC needs assessment at any time, including when your child is being home educated. You do not need to wait for them to be in school. You can use our template letter and resources to help you make your request.

You can read more about what you can do when looking for a new school for your child on our website.

If your child has an EHC plan

Tell your local authority (LA) that you no longer want to electively home educate your child and check when the next annual review is.

If the next annual review is a while away, ask for an early statutory review.

If you want them to go to a particular nursery, school or college, use the annual review process to ask for changes to be made to the EHC plan and for a setting (or different setting) to be named.

You have the right to request:

is named in your child’s EHC plan whenever the plan is in draft form (such as following an annual review where your LA made a decision to amend the plan). Once you have found a school or college you like, check online to see if it is one that you have the right to request.

You can also ask for an independent setting to be named.

The other option you have is to consider whether your child needs to be educated otherwise than in a school, but not as elective home education. Some families feel that no nursery, school or college would be appropriate for their child due to their SEN and the special educational provision they require. This is different to elective home education, which is meant to be a genuine free choice.

Section 61 of the Children and Families Act 2014 allows an LA to arrange for some or all special educational provision set out in Section F of the EHC plan to be made otherwise than in an early years, school, or post 16 setting if the LA agrees it would be inappropriate for provision to be made in such a setting. This is sometimes called ‘EOTIS’.

If you feel no nursery, school or college would be appropriate for your child and do not want such a placement (or type of one) named in Section I, or that your child needs a part-time EOTIS package alongside some school attendance, please read our information about this, tell your LA, and ask it to amend the EHC plan.

If your LA:

refuses to name the setting you want in Section I
names a setting (or type) in Section I you do not agree with
names a setting when you think no setting should be named in Section I, and/or
issues an amended EHC plan and you don’t agree with its contents,

you can mediate and/or appeal this to the SEND Tribunal.

Question 44

I have told my local authority that I do not want to home educate my child anymore. What help should my local authority give whilst I look for a school place?

Accepted Answer

If your child is of compulsory school age then they must receive a suitable full-time education. Parents can decide whether their child gets this education by attending school, or otherwise (such as by home education).

However, home education must be elective – that is, parents cannot be forced to home educate their child.

You have decided that home education is no longer right for your child, but your child is currently without a school place.

If any child of compulsory school age is not receiving education because:

illness is preventing them from being able to attend school
they have been permanently excluded from school, or
for any other reason (such as their parent no longer choosing to home educate them),

then under section 19 of the Education Act 1996, your local authority (LA) must make sure that suitable, full-time alternative education is put in place for them.

This education must be full-time unless a reduced level of education would be in your child’s best interests because of their physical or mental health. It must also be suitable for your child’s age, ability, aptitude, and special educational needs (SEN).

You can use our template letter to ask your LA to put this temporary education in place until your child starts back at school. For children with no school place, education must be provided immediately.

Question 45

Local authority conduct in SEND Tribunal appeals

Accepted Answer

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.

Question 46

Disability discrimination

Accepted Answer

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)

Question 47

I have heard of way forward meetings and next steps meetings. Are these the same as mediation?

Accepted Answer

No. Mediation is a statutory process. Way forward and next steps meetings are the names some local authorities (LAs) give to informal dispute resolution. Here are some of the key differences:

You have the right to mediation whenever your LA makes a decision which you can appeal in the SEND Tribunal, or when an EHC plan is made, amended or replaced (this is set out in section 52 of the Children and Families Act 2014). If you want to take part in mediation, your LA cannot refuse to arrange it or refuse to participate in it. There is no right to a way forward meeting, a next steps meeting, or any other informal dispute resolution arrangement. These types of meetings might be offered by an LA but they are voluntary processes.

If you choose to mediate, an independent mediator will be on hand to help with the discussions and see if agreement can be reached. They will have knowledge of the SEN, health and social care legal framework. No such independent facilitator will be required to attend a way forward or next steps meeting.

Your LA must send to mediation a representative who has the authority to make decisions there and then, without the need to go back to a deciding panel. There is no such duty on your LA in informal dispute resolution meetings, and you may find decisions take longer to be made following these meetings because they need to be approved by a panel first.

Agreement reached in mediation is recorded in a legally binding mediation agreement, and your LA must comply with it and within a set timescale. If it doesn’t, you can take action. No legally binding agreement will be entered into following a way forward or next steps meeting, and there may be very little you can do to make sure your LA does what it said it would, and when.

Following mediation, you will receive a mediation certificate. You can use this to submit an appeal in the SEND Tribunal if the matter isn’t resolved in mediation. You will not get such a certificate following a way forward or next steps meeting, and you cannot make an appeal in the SEND Tribunal without it (unless the issue relates solely to Section I).

If you have participated in an informal meeting which seemed successful, be mindful that you may still find yourself wanting to appeal (for example if your LA changes its mind about what was agreed). The right to appeal is time-limited, so you should take care not to miss your appeal deadline whilst waiting for your LA to action anything it informally agreed to do. If your appeal deadline is getting close and your LA has not done what was agreed (or you are not sure if It will), we suggest you take steps to consider statutory mediation and (unless mediation resolves the issue) submit an appeal.

Question 48

I am unhappy with the school named in Section I of my child’s EHC plan. Is mediation available for this?

Accepted Answer

Yes, you have the right to mediation whenever your local authority (LA) makes a decision which you can appeal in the SEND Tribunal, or when an EHC plan is made, amended or replaced (this is set out in section 52 of the Children and Families Act 2014). This includes Section I, as you can appeal this in the SEND Tribunal.

If you are only appealing Section I (and no other sections of the EHC plan), you do not need a mediation certificate before you can make an appeal in the SEND Tribunal. This means that you do not need to consider mediation if you do not want to – you can go straight to appeal without thinking about mediation first, if you decide that is right for you.

You have the right to mediation if you want it, though and you can call the mediation advisor for advice on mediation if you wish. If you decide you don’t want mediation then you don’t need to wait for a mediation certificate before you can appeal (because a certificate will not be issued). This is different to all other appeals, where parents and young people do need to consider mediation first and get a mediation certificate.

If you decide you want to mediate about Section I only, you will not get a mediation certificate once mediation had taken place. This means that if agreement isn’t reached and you need to appeal following mediation, you need to make sure the SEND Tribunal receives your appeal form within 2 months of the date on your LA’s decision letter (or letter enclosing a final amended EHC plan).

Please see our downloadable information pack on appealing Section I to help you prepare for mediation.

You might also want to consider whether Sections B and F also need to be appealed (as the SEND Tribunal will look to them when making placement decisions). If you do decide to appeal other sections of the EHC plan (and will therefore not be appealing Section I only), then you will need to consider mediation and get a mediation certificate before you can appeal.

Question 49

My local authority was not able to arrange for mediation within 30 days of me asking for it. Can I still mediate, even if it is late?

Accepted Answer

Yes. Local authorities (LAs) must arrange for mediation to take place within 30 days from the date parents or young people tell their LA that they want to mediate. If an LA is not able to arrange for mediation in this time:

the LA must tell the mediation advisor as soon as possible once it realises this
the mediation advisor must send to you a ‘deemed mediation’ certificate within 3 working days of the LA’s notice, and
you can use this certificate to lodge your appeal.

However, The SEND Regulations 2014 make clear that you can still choose to mediate in this situation. Regulation 39(3) says that you must be given the mediation certificate “whether or not the child's parent or the young person later participates in mediation”. So, you do not lose your right to mediation simply because the LA is late arranging it.

Question 50

Education otherwise than in a school (EOTIS)

Accepted Answer

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.

Question 51

Can school stop my 13-year-old from attending equine therapy once a week, even though the LA agreed to it, because it's an unregistered alternative provision?  My child doesn't have an EHC plan and is in the process of having an EHC needs assessment.

Accepted Answer

The statutory guidance Working together to improve school attendance (applicable from 19 August 2024) confirms (at paragraph 65) that in some circumstances a pupil’s education may be provided partially at school and partially somewhere else.

It confirms that schools have responsibilities for the safeguarding and welfare of pupils attending an approved educational activity outside of school. However, “unregistered alternative provision arranged by the school” is an example of an approved educational activity in the guidance (paragraph 311). A school is permitted to arrange this if it is satisfied that “the activity is supervised by a person considered by the school to have the appropriate skills, training, experience and knowledge to ensure that the activity takes place safely and fulfils the educational purpose for which the pupil’s attendance has been approved.” (paragraph 310). There’s a specific code (code B) that the school has to use to record a child’s attendance in these circumstances (regulation 10(3) and 10(11) of The School Attendance (Pupil Registration) (England) Regulations 2024).

However, if the local authority (LA) has agreed to arrange this provision, rather than the school, the LA may be doing so because of its duty under section 19 of the Education Act 1996. This duty means LAs must secure suitable, full-time education for children of compulsory school age who would not otherwise receive it. LAs can fulfil this duty by providing education outside of school on the days a child will not be at school. As this is the LA’s duty, it’s the LA (not school’s) decision whether your child can have equine therapy.

The School Attendance (Pupil Registration) (England) Regulations 2024 has introduced a new attendance code for recording attendance at education provision arranged by the LA. Regulation 10(3) requires the school to use code K if a pupil is attending a place arranged by a local authority under its duty to secure:

Therefore, if the LA arranges your child’s equine therapy because it has a duty to, the school can’t stop it and must record that your child is attending provision arranged by the LA in the register using code K.

If equine therapy is required to meet your child’s special educational needs, it will count as special educational provision. During the EHC needs assessment, you can make the case that it is not something mainstream schools provide from within their own resources and an EHC plan is necessary for your child to be able to access it long term.

If the LA agrees to issue your child with an EHC plan and equine therapy is required to meet her needs, make sure it is described specifically in section F. Please see our information on what an EHC plan contains and what to do when you receive a draft EHC plan for more information.

Question 52

Cease to maintain EHC plans

Accepted Answer

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.

Question 53

My child’s school says it can’t authorise her absence due to illness because I haven’t been able to provide a letter from a Consultant. Can it do this?

Accepted Answer

There’s no rule that evidence from a consultant must be provided for absence due to illness to be authorised. In fact, in most cases medical evidence isn’t required.

The statutory guidance Working together to improve school attendance (applicable from 19 August 2024) says that schools are not expected to routinely request that parents provide medical evidence to support illness absences. In the majority of cases a parent’s notification that their child is too ill to attend school will be that evidence and can be accepted without question or concern. Only where the school has genuine and reasonable doubt about the authenticity of the illness should medical evidence be requested to support the absence (paragraph 365).

This guidance goes on to say that where medical evidence is deemed necessary, schools should not be rigid about the form of evidence requested and should speak to the family about what evidence is available. Schools should be mindful that requesting additional medical evidence unnecessarily places pressure on health professionals, their staff and their appointment system, particularly if the illness is one that does not require treatment by a health professional. Where a parent cannot provide evidence in the form requested but can provide other evidence, schools should take this into account. Where a parent cannot provide any written evidence the school should have a conversation with the parent and pupil, if appropriate, which may in itself serve as the necessary evidence to record the absence (paragraph 366).

It may help to refer your child’s school to this guidance and to point out that because it is “statutory” the school must have regard to it.

Question 54

What happens if my child cannot attend school and I am threatened with an Attendance Order?

Accepted Answer

If you are being threatened with an Attendance Order because of your child’s absences from school, you should write to the relevant person or department (which is likely to be the Educational Welfare Service) to explain that your child has a medical condition and this medical condition is preventing them from attending school.

You can suggest to them that serving an Attendance Order in these circumstances would be premature and inappropriate, and what is needed is co-ordinated action by support agencies to identify and make provision for all of your child’s needs.

Hopefully, once everyone involved realises that your child’s non-attendance is to do with their medical needs rather than deliberate truancy, the threat will be withdrawn.

If your local authority (LA) continues with the threat of serving an Attendance Order, or actually serves it, you can speak to with a criminal solicitor who is familiar with education cases. You should ask them if you would qualify for criminal legal aid. You could also contact Citizens Advice.

Question 55

My 9 year old child has a long term medical condition which means they can’t manage full-time attendance at school. The school records them as absent due to illness and says they can’t agree to an indefinite part-time timetable. Is this true?

Accepted Answer

Education can be provided partly at school and partly elsewhere

The statutory guidance Working together to improve school attendance (applicable from 19 August 2024) confirms that part-time timetables must be temporary and have a proposed end date (paragraphs 66 and 67). However, as explained at paragraph 65 of this guidance, in some circumstances a pupil’s education may be provided partially at school and partially somewhere else.

Schools have to tell local authorities (LAs) about sickness absences

As your child is of compulsory school age, has been recorded as absent due to illness and there are reasonable grounds to believe they will have to miss 15 school days or more in the school year, the school has a legal duty tell your LA this as soon as possible. This is called making a sickness return and the school must do this (regulation 13(9) of The School Attendance (Pupil Registration) (England) Regulations 2024 and paragraph 58 of Working together to improve school attendance). The 15 days don’t have to be consecutive (in one block), for example it could be made up of one day off per week.

LAs have to make sure children get full-time education

Your LA has a legal duty to secure suitable, full-time alternative education for children of compulsory school age who would not otherwise receive it due to illness, exclusion or another reason (section 19 of the Education Act 1996). The statutory guidance called 'Arranging education for children who cannot attend school because of health needs' says (on page 7) as soon as it is clear that a child will be away from school for 15 days or more (consecutive or not) because of their health needs, the LA should arrange suitable alternative provision. When an LA arranges alternative education, it should begin as soon as it is possible, and at the latest by the sixth day of the child’s absence from school. Where an absence is planned, LAs must make suitable, timely arrangements in advance to allow provision to begin from day one, unless exceptional circumstances apply.

The statutory guidance 'Arranging education for children who cannot attend school because of health needs' confirms (on page 9) that this applies whether a child is on the roll of a school or not and whatever type of school they attend.

This means that once your child’s school makes a sickness return informing the LA that your child will miss at least 15 school days over the school year, the LA’s duty to provide alternative education to supplement their school attendance will apply. This does not mean the LA will provide a full day’s education; it could provide a few hours of one-to-one tuition. The guidance says where possible, children with health needs should receive education which is equivalent to the education they would receive in a mainstream school and that one-to-one face-to-face provision could be fewer hours than the usual school day as the education may be more intensive (pages 9 and 10).

If you’re not sure if the school has made the sickness return, ask it for a copy of it (it may help to share this webpage with the school). You can contact the LA directly to request alternative education too and we have a template letter which may help.

An EHC plan can provide more or different support

Where a child is not able to access school, this indicates that more or different support is needed than they are currently receiving. If it is not foreseeable that your child will be able to attend school full-time and they do not have an EHC plan you can make a request for an EHC needs assessment, in order to ensure that their special educational needs are properly identified and the required special educational provision can be put in place. This may be to enable them to attend school full-time with that support, or to demonstrate that receiving all of their educational provision at any school would be inappropriate, in which case the education that they would receive out of school (known as education otherwise or EOTIS) would be set out in an EHC plan. An EHC plan is a legal document that parents can enforce if there are any issues with their child receiving the special educational provision set out within it.

If your child already has an EHC plan, your LA has a legal duty to secure all of the special educational provision in it. Your LA must be closely involved in any decision about placement in alternative education, and any alternative education arrangements should be made to ensure that this provision continues to be delivered (page 13 of Alternative Provision government guidance).

If your child is not receiving the provision in it, please see our information on enforcing it. Even if they are, it may be appropriate to ask the LA to make changes to the EHC plan to better support your child’s needs and enable them to attend school full-time or have some of their education via EOTIS.

The LA’s duty to secure alternative education under section 19 of the Education Act 1996 applies to compulsory school age children regardless of whether or not they have an EHC plan. Getting or changing an EHC plan takes time and the duty under section 19 of the Education Act 1996 is a safety net to prevent a child who would otherwise miss education from doing so in the meantime.

Question 56

My final evidence deadline is soon but I am still waiting for an assessment to take place. Can I submit the report as evidence even if this is after the deadline? Does the SEND Tribunal accept late evidence?

Accepted Answer

The evidence deadline has some flexibility.

If arrangements have been made for a particular assessment beyond that deadline, then you can ask the SEND Tribunal to extend this deadline using the Request for Change form (Form SEND 7) (having sought the LA’s view first). This may result in a postponement of the hearing. However, if your hearing date is some time away and extending the deadline should not impact it, when you ask for the deadline to be extended (please see below), you should explain this and ask for the hearing date to remain the same.

You need to let the SEND Tribunal know.

The SEND Tribunal will not be happy with a parent or young person who does not tell them about a report which is due after the evidence deadline, particularly when they have known about the delay for some time. Full disclosure should be made to the SEND Tribunal when an assessment is to be carried out, including the date the report is due and any delays encountered.

It is possible to apply for late evidence to be submitted after this deadline, including bringing late evidence on the day. However, it will be up to the SEND Tribunal as to whether or not this should be accepted. In deciding whether to accept your report as late evidence, the SEND Tribunal will consider:

why the evidence was submitted late and whether it could have been submitted earlier, so say why it is being submitted late
whether the evidence is relevant, so explain why it is relevant
whether the evidence is in dispute, whether it could be offered orally, or other factors, so address these and all relevant factors, and
whether it is fair and just to exclude the evidence, so explain why it would not be fair and just to exclude the evidence.

If you need to submit evidence after the final evidence deadline, you should use the Request for Change form (Form SEND 7) (having sought the LA’s view first) to ask the SEND Tribunal to accept it. The additional evidence should be submitted alongside the Request for Change form, rather than waiting for a response from the SEND Tribunal, so send it at the same time as your form. For guidance on what to cover in your request see our information on late evidence. If the SEND Tribunal refuses permission the additional evidence will simply be disregarded.

Question 57

My local authority has said it is going to amend my child’s EHC plan following the annual review. I don’t agree with the local authority’s proposed changes.  When can I appeal?

Accepted Answer

If you are not happy with the changes your local authority (LA) is making, you can appeal your child’s EHC plan once it is issued. You cannot appeal before this point (for example when your LA writes to tell you it has decided to amend the plan).

If your LA is late to issue the final amended EHC plan, you can take action.

You will need to make sure your appeal is sent to the SEND Tribunal within 2 months of the date on the LA’s letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever is later.

Please see our pages on how to submit an appeal and contents appeals for more information.

Question 58

My local authority’s decision letter is dated 1 October and my mediation certificate is dated 29 November. Are there any special rules about when appeals must be submitted over the Christmas period? Are there other times when the deadline changes?

Accepted Answer

Yes there are.

Generally speaking appeals need to be submitted within 2 months of the date on the decision letter or one month from the date on the mediation certificate, whichever is later.

Christmas holidays

In your case your decision letter is 1 October, so the 2 months’ timescale expires on 1 December. Your mediation certificate is dated 29 November and the one month expires on 29 December. This is the later of the two dates. Therefore your appeal needs to be submitted over the Christmas period.

There are special rules for this. If the two months/one month deadline ends on or between 25 December to 1 January, as in your case, you have until the next working day in January to appeal. Therefore, you have until the next working day in January to submit your appeal form.

Summer holidays

The only other time the deadline for appeals to be made changes slightly is if the two months/one month deadline ends in August, then you have until the first working day in September to get your appeal form to the SEND Tribunal.

Please note that these changes to the deadline apply to SEN appeals in the SEND Tribunal. They do not apply to claims about disability discrimination in the SEND Tribunal.

Question 59

I am appealing my child’s EHC plan. Do I check to see if I am eligible for legal aid in my name as the parent, or if my child is eligible for legal aid in their name?

Accepted Answer

Eligible people can obtain funding for ‘Legal Help’ for appeals to the SEND Tribunal from the Legal Aid Agency. Legal Help covers the preparation of the case (from submitting the appeal form through to preparation for the hearing) but does not cover representation at the hearing (unless in exceptional circumstances).

You will want to check to see if you are eligible for this support in your name. This is because where the case concerns a child and the parents have the right of appeal, the means of the parents will be assessed.

You can check your eligibility online: https://www.gov.uk/check-legal-aid and you should do this even if you think you might not be eligible, just in case you are.

If you are eligible for Legal Help, a solicitor can draft and submit your appeal form for you. Even if you have already submitted the appeal form, you should see if you can get Legal Help to assist with the preparation of the evidence for the appeal. Legal Help can also cover the cost of obtaining private reports as evidence to support your case.

Question 60

My child lives with me and has no contact with my ex-partner. Will the appeal paperwork go to my ex-partner as well? What can I do if this not appropriate?

Accepted Answer

If you share parental responsibility for your child with another person, you should supply the names and addresses of those persons on your appeal form where it asks you to. This is only “if possible”.

If you have a reason for not wishing to include this information, then you should say so and why. Alternatively, you can provide the name and contact details for your ex-partner if it is possible but still explain why they should not receive details of the appeal. This form will be copied to the local authority and distributed as part of the documents for the hearing (known as the ‘bundle’).

This is also the case if you were to share care of the child with another person and consider they should not receive details of the appeal.

Question 61

I am a foster carer caring for a child with an EHC plan. The EHC plan does not contain all the support they need. Can I appeal the EHC plan?

Accepted Answer

Yes.

In education law, the term “parent” includes:

people with parental responsibility of a child or young person, as well as
people who have care of a child or young person (for example, a grandparent who a child lives with or a foster carer).

This is what “parent” means in the law and guidance about special educational needs including the Children and Families Act 2014, The SEND Regulations 2014 and the SEND Code of Practice 2015.

Therefore you are considered a “parent” and have rights in section 51 of the Children and Families Act 2014 to make an appeal as such.

Please also note the rules for legal aid are different for foster carers and you are likely to be eligible. Please see our information for foster carers on our website to find out more.

Question 62

The deadline for my appeal to be made has passed. Am I too late to try to appeal?

Accepted Answer

An SEN appeal has to be received by the SEND Tribunal within two months from the date on the decision letter/ letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever is the later.

If you missed the deadline, the SEND Tribunal may still allow you to submit it late.

The SEND Tribunal has the discretion to extend these time limits if the letter that the LA sent to you informing you of its decision did not tell you everything it was required to, such as:

your right of appeal to the SEND Tribunal
the time limit within which the appeal must be made
the availability of dispute resolution arrangements, and/or
the fact that use of such arrangements does not prejudice the right to appeal

Double-check whether the decision letter you received contains all the necessary information. You can check this on our pages.

If the appeal is out of time, the form should be submitted as soon as possible explaining why it is late. If that was because the LA’s decision letter did not contain all the necessary information, make that clear.

You will want to explain what special circumstances apply and why it would be fair and just to allow an extension of the deadline.

A SEND Tribunal judge will then consider the appeal form and may allow an extension if there are special circumstances, and it is fair and just to do so.

Question 63

When does the SEND Tribunal send a copy of my appeal to my local authority? When does it have to respond?

Accepted Answer

The SEND Tribunal will start processing your appeal by registering it. If the appeal is not registered because key information and/or documents are missing, it will be sent back to you with a list of what is required and a reminder that an extension of the deadline for making the appeal may be required.

You will receive a registration letter, as will your local authority (LA). The registration letter contains very important information called “Case Directions” and should be read very carefully.

While sending the registration letter, the SEND Tribunal will also send a copy of your appeal to your LA.

Within 30 working days of the appeal being sent to it, the LA must respond to the grounds of appeal.

Your LA must send its response to you and the SEND Tribunal at the same time.

Question 64

My local authority has responded to my appeal but the response does not contain everything it was required to provide. What can I do?

Accepted Answer

Your local authority (LA) must make sure its response addresses the points and provide all the information that was listed at the end of the registration letter and Case Directions.

If your LA does not include in the response everything that the SEND Tribunal directed, you should submit a Request for Changes form (Form SEND 7) (having sought the LA’s view first) to ask the SEND Tribunal to direct the LA to provide the missing information.

You can find out more information about Request for Changes forms on our website.

Children without EHC plans

Children with EHC plans