Is appeal still valid if LA unilaterally issues a new final EHCP
- Child received EHCP in Sept 2024
- LA named mainstream in that EHCP
- Parents had requested specialist school A
- LA agreed that child needs specialist school but couldn't offer a specialist school for now because LA was short on places
- So, parents made tribunal appeal for section I only of the EHCP
- LA offers special school B instead of parental preference A
- Parents give LA's offer a serious consideration but then reject the offer as B isn't suitable for the child
- LA sends a new EHCP to parents and tribunal, just 3 months before the hearing date naming special school B
- SENDIASS says to parents that parents will have to file a new appeal now
- Parent rang tribunal who have said LA can't change EHCP unilaterally
- Parents also read lots of case law summaries online
- Parents are confident that the appeal is valid and this new EHCP that LA sent was nothing but a document, it wasn't legally binding
What is the truth of the situation, legally?
A: SenseCheck
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- 13 Jun 2025
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Yes
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Simple
Yes, but…..
M Z Rahat,
As I understand it, you submitted an appeal against Section I of the Education, Health and Care Plan (EHCP) issued in September 2024, naming School A as your preferred placement. Since then, the Local Authority has issued a revised EHCP, now naming Special School B which you also do not accept.
If that summary is correct, please be reassured that this scenario is more common than it may initially appear. While it is tempting to dwell on what ought to have happened, the focus now should be on responding in a pragmatic and timely manner.
You may wish to consider either of the following options:
a) Continue with the existing appeal and submit a Request for Changes form (SEND7) to the SEND Tribunal, asking for an emergency Telephone Case Management Hearing (TCMH) to consider your request for the new EHCp to now form the basis (you could say the working document) of the existing appeal. This would allow the Tribunal to confirm that the newly issued EHCP is now the operative plan under appeal. Be clear and factual in your explanation and ensure that you enclose the updated EHCP.
b) Present fresh appeal against the the contents of section I of the new EHCP and ask the Tribunal to consolidate it with your existing appeal, though this can be a little fiddly – sometimes it is the right thing to do,
It is matter for you how you proceed but, in most instances, I would favour option (a), relying on the authority of Essex County Council v DH (SEN) [2016] UKUT 0463 (AAC). This route enables you to pursue the original appeal while still addressing the Local Authority’s revised position.
One further point: it is somewhat unusual not to challenge the contents of Sections B and F of the EHCP, though I am sure you have sound reasons for focusing solely on Section I.
I strongly suggest that you act without delay, to ensure that your position is preserved, and your appeal progresses effectively.
Finally, as this is only a section I appeal, have you considered JADR (Judicial Alternative Dispute Resolution)?
You can find out more about this here:
https://www.ipsea.org.uk/news/what-is-judicial-alternative-dispute-resolutionBest wishes.
Sean Kennedy
13 Jun 2025
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1 Comment