Should I issue JR proceedings when school cannot meet need but LA named on EHCP?
Our daughter is due to start school in September. She is 4 years old. We applied for a school place and the nearest school offered a place. A draft EHCP has been issued naming the school in section I. The school have now been formally consulted with the EHCP and have said they cannot meet need. This is not a surprise to us and we suspect she needs an EOTAS package.
If the final EHCP lists the school in section I, despite school saying they cannot meet need, where does this leave us? Her anxiety is high and she refused to attend preschool setting. Waits for the tribunal are likely 12+ months. Is judicial review the best option for us to challenge rationality of decision to name school in Section I that cannot need need?
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 30 Jun 2025
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No
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Simple
Dear BN,
In my view – and I am happy to be challenged – an appeal to the First-tier Tribunal (FtT) is the correct route for amending Section I of an EHCP, rather than a judicial review.
I say this because in R (LW) v Islington LBC [2025] EWHC 703 (Admin) the High Court refused permission for judicial review on the basis that an FtT appeal was a “suitable alternative remedy”, even though the family faced many months’ delay.
Challenging the school named in Section I (or the refusal to specify EOTAS) is precisely what the Tribunal is designed to decide, so a judicial-review claim on that issue will almost certainly be refused for the same reason as in LW. Judicial review can also be expensive and must be issued “promptly”, and in any event no later than three months after the impugned decision.
Possible immediate practical steps you may want to consider
- Respond to the draft plan – attach the school’s written refusal (or the minutes of the consultation call) together with any professional evidence concerning her anxiety and inability to attend.
- Ask the LA to consult alternative settings and/or begin an EOTAS feasibility discussion straight away.
- Support & funding – seek advice on appealing to the FtT from SENDIASS, the IPSEA helpline, SOS!SEN, or a specialist solicitor regarding legal-aid merits. Legal Aid is still available for SEND judicial-review claims and for Tribunal representation where there is discrimination, but not for mainstream EHCP Tribunal work, so many families self-represent.
Clearly you need to act promptly. But I do see how difficult this situation is.
That said I of course look forward to reading other contributions.
Best wishes,
Sean Kennedy.
30 Jun 2025
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1 Comment