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• 30 Jun 2025

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Simple

Dear CM,

Yes, do refer to the school’s verbal admission, but treat it as supplementary to more robust, independent evidence. Structure your arguments around the statutory test: that despite the school’s best endeavours and the resources typically available in a mainstream setting, your child still requires special educational provision which can only be secured through an Education, Health and Care Plan (EHCP). That is precisely the situation Parliament intended to address when it created the EHC system.

This is undoubtedly becoming complex, but I am confident you can navigate it effectively. While we cannot offer legal advice, here are a few general pointers that may assist you:

1. Stay Focused on the Legal Test

The Noddy Guide offers very helpful commentary on the legal framework here:

05.02 Does a child or young person automatically get an EHCP following a statutory assessment?

It is worth examining in full, but here is a brief summary:

Section 37(1) of the Children and Families Act 2014 requires a local authority to issue and maintain an EHCP where, following an assessment, it is deemed “necessary” to ensure the child or young person receives the special educational provision (SEP) they need. The Act does not define “necessary”, leaving this as a professional value judgement based on the facts of the case.

Tribunals often apply two practical questions:

• Can the child’s needs be met from the resources normally available in a mainstream school?
• Even if theoretically possible, is it realistic to expect those needs to be met in practice without the legal guarantee of an EHCP?

If the answer to either question is ‘no’, then an EHCP is generally considered necessary.

Higher courts have added further nuance:

• The benchmark is provision across mainstream schools in England—not just within one local authority.
• An EHCP may still be necessary even when the child is making progress, as it serves as a safeguard if the child changes school or budgets are cut.
• While the 2015 Code of Practice refers to progress, it does not override the statutory focus on securing appropriate provision.
• Tribunals may find an EHCP necessary even in the absence of a detailed academic programme—for instance, where anxiety severely disrupts learning.

Despite some variation in case law, the central principle remains consistent: an EHCP is needed when, without it, the child is unlikely to receive the support they need from the usual resources available in mainstream settings.

2. Handling the School’s Verbal Admission

Treat the admission as useful, but not pivotal. You might consider the following approach:

• Make a clear note: Record the date, time, who said what, and in what context, as soon as possible.
• Seek confirmation: Email the SENCo or headteacher with your note and invite them to clarify or correct it. If they confirm, you have a written record; if they remain silent, that too can be helpful.
• Include it in your witness statement: Reference the admission and confirm that you documented it contemporaneously.
• Consider a witness summons: If the school’s evidence is key and cooperation is refused, you may ask the Tribunal to compel attendance—though this should be used judiciously.

Tribunals give most weight to professional evidence, not institutional discomfort.

3. Presenting the Situation: Best Endeavours Still Insufficient

You do not need to suggest the school is failing. Instead, argue that even when it deploys all the support ordinarily available in mainstream settings, it cannot meet your child’s needs.

This avoids casting blame and keeps attention on the unmet need, not on the school’s perceived shortcomings.

4. Evidence to Include in the Bundle

Consider including:

• Recent independent professional reports.
• The school’s current support plans or provision map.
• Your note (and any school response) documenting the verbal admission.
• Data on attendance, attainment and behaviour—particularly where emotionally based school non-attendance (EBSNA) is evident.
• Your own witness statement.

5. Structuring Your Written Case

Your written submission might follow this format:

• Background: A brief timeline covering diagnosis, current placement and the LA’s decision.
• Needs: Outline all diagnoses, such as ASD and EBSNA, citing professional assessments.
• Required Provision: Extract key recommendations from expert reports, including details of setting, frequency and intensity.
• Why Mainstream Cannot Deliver: Break down each element of provision and show why it lies outside the ‘ordinarily available’ scope.
• Conclusion: Emphasise that, without an EHCP, the required provision cannot be secured, making the plan necessary and the refusal unlawful.

6. Practical Tips for the Hearing

• Keep your tone calm, factual and focused on your child’s needs—not on school failings.
• The Tribunal is evidence-led: contemporaneous notes, expert reports and data matter far more than subjective views.
• Use your time to illustrate the gap between needs and provision. Do not allow the local authority to steer the discussion toward the school’s goodwill or theoretical possibilities.

Best wishes,
Sean Kennedy



Sean Kennedy

30 Jun 2025

This is helpful

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