Case overview

The parents of a child who attended a special school with an EHC plan appealed to the SEND Tribunal and asked for a different school to be named in the plan. The child continued to go to their special school during the appeal.

The SEND Tribunal decided the school requested by the parents was not suitable and refused to name it. Neither the local authority (LA) nor the parents asked the SEND Tribunal to consider naming any alternative schools during the appeal.

The SEND Tribunal therefore ordered that Section I of the EHC plan named a type of school only, “special”.

Afterwards, the LA agreed to the child’s name being removed from their school roll without consulting with their parents. The LA did this because it thought this was a consequence of the Tribunal’s order. It then put in place education otherwise than in a school.

The parents asked for permission to appeal to the Upper Tribunal on the basis that the SEND Tribunal had failed sufficiently to safeguard the child’s rights to prevent him being ‘off-rolled’ without the parents’ consent. The Upper Tribunal refused permission.

What does this mean?

Ability to remove a current pupil’s name from the roll of a special school

Under The School Attendance (Pupil Registration) (England) Regulations 2024, if an LA made arrangements for a child of compulsory school age to attend a special school, then the child’s name must not be deleted from the school’s roll without the LA’s permission (regulation 9(2) of The School Attendance (Pupil Registration) (England) Regulations 2024).

If an EHC plan is made or amended but does not name the school currently being attended, that does not automatically mean an LA can remove a child’s name from the school roll without consultation with their parents. No package of education otherwise than in a school under section 61 of the Children and Families Act (CFA) 2014 can be put in place without first consulting with parents or young people, nor can an LA name a different setting in Section I of an EHC plan without first giving parents and young people a right to request a particular setting they want named.

If a school is being attended but has not been named in an EHC plan, then it will not have a duty to admit the child under section 43 of the CFA 2014 (where this applies). However, a current pupil cannot be excluded from their school otherwise than in accordance with normal procedures.

Naming type only

This case reminds us that section 39(5) of the CFA 2014 allows the SEND Tribunal on appeal to name an appropriate school or type of school where the conditional right to a particular section 38(3) CFA 2014 school has been displaced under section 39(4) of that Act. This may be the appropriate course of action if neither party has put forward another school for consideration.

Therefore, if you are concerned that the school you want to be ordered on appeal may not be, consider if there are any alternative settings you want to ask the Tribunal to name instead. The Upper Tribunal said “It is not the role of the Tribunal to ‘supervise’ the parties in their search for an appropriate school. The Tribunal’s role is to determine the appeal before it” (paragraph 31).

Once an EHC plan is issued naming type only, the parties can continue to identify school placements. Any amendment of the EHC plan naming a school must follow a legal process, and give rise to new appeal and mediation rights once it has been issued.

Expectation of legal compliance

In making a decision that Section I was to name a type of placement, the SEND Tribunal had not directed, caused or permitted the LA to remove the child’s name from the school roll.

When the SEND Tribunal makes decisions, it can do so on the reasonable expectation that the LA will comply with its legal duties.

Powers of the SEND Tribunal after an appeal has been decided

The Upper Tribunal reminds us that the SEND Tribunal has no power over what happens once an appeal is determined, and it has no powers of enforcement.

Failures by an LA to comply with the law or a SEND Tribunal decision can be taken to the Local Government and Social Care Ombudsman, or the Administrative Court on judicial review if the matter is urgent and serious and cannot be resolved otherwise.

Beware of relying on AI

The parents’ appeal grounds contained incorrect and irrelevant case law and guidance references, which the Upper Tribunal felt were likely to be AI-generated.

Rather than rely on AI, please do use IPSEA’s case law and legislation and guidance libraries and the Noddy Guide to assist you with legal references.

The full case report for PS v LB of Wandsworth (SEN): [2025] UKUT 239 (AAC) is available online.

For more information see our pages on requesting a particular nursery, school or college, appealing placement decisions and how EHC plans are changed.