Sort

• 28 Aug 2025

No

|

Simple

No. Parents do not automatically get their choice of school in Section I of an Education, Health and Care Plan (EHCP) simply because the Local Authority (LA) has been barred from the Tribunal proceedings. The Tribunal must still apply the legal tests set out in the Children and Families Act 2014 and the Education Act 1996, and case law makes clear that there is no such thing as a “default judgment” in this area. However, if the LA remains barred and puts forward no evidence, the Tribunal will be more likely to accept the parents’ evidence and order their preferred school, provided the statutory conditions are satisfied.

 

The Legal Framework

When parents request a school, the Tribunal is bound by Children and Families Act 2014, sections 38–40. Section 39 creates a duty to name the parental preference unless one of three exceptions applies:

1. The school is unsuitable for the child’s age, ability, aptitude or special educational needs.
2. The placement would be incompatible with the efficient education of others.
3. The placement would be incompatible with the efficient use of resources.

 

In addition, Education Act 1996, section 9 requires parental preference to be respected unless this would be incompatible with efficient instruction and training, or involve unreasonable public expenditure.

The Effect of the Tribunal Rules

If an LA is barred under the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, rule 8(2), it cannot participate in the proceedings. The Tribunal has discretion to reinstate the LA’s participation within 28 days under rule 8(6). If no reinstatement occurs, the LA cannot file evidence, attend, or make submissions.

Relevant Case Law

AJ v Croydon [2020] UKUT 246 (AAC) (para. 29–30)
The Upper Tribunal confirmed that the First-tier Tribunal (FTT) is inquisitorial and must ensure it has sufficient evidence to make a lawful decision. Even if the LA does not appear, the Tribunal cannot simply accept the parents’ case without scrutiny.

• Significance: The Tribunal must actively test the evidence; absence of the LA does not mean the parents automatically succeed.

 

Barking and Dagenham LBC v SENDIST & MG [2007] EWHC 343 (Admin) (para. 22–23)
The High Court held that even if the LA fails to participate, the Tribunal must still apply the statutory framework and cannot grant a placement purely by default.

• Significance: Confirms there are no “default judgments” in SEN law.

 

Devon County Council v OH [2016] UKUT 292 (AAC) (para. 33, 45, 59)
The Upper Tribunal stressed that the SEN framework requires continuity of approach and proper application of the statutory tests, regardless of procedural failures by an LA.

• Significance: Even where an LA defaults, the Tribunal must still apply the law carefully.

 

TM and SM v Liverpool City Council [2024] UKUT 201 (AAC) (para. 19)
The Upper Tribunal highlighted that the FTT must take into account the child’s wishes and feelings under Children and Families Act 2014, section 19, alongside parental preference.

• Significance: In the absence of LA evidence, the child’s and parents’ views carry greater weight.

 

X County Council v DW [2005] EWHC 162 (Fam) (para. 20) and Buckinghamshire County Council v SJ [2016] UKUT 254 (AAC) (para. 14)
These cases confirm that an EHCP represents a single package of provision and placement. Parents may reject an LA placement, but the Tribunal must decide what is lawfully named in Section I.

• Significance: Reinforces that Tribunal decisions on placement are judicial, not automatic.

 

EC v North East Lincolnshire [2015] UKUT 648 (AAC) (para. 21)
The Upper Tribunal held it is an error of law if the Tribunal fails to decide whether the parents’ preferred school is suitable.

• Significance: Confirms the Tribunal cannot sidestep the statutory duty to consider the suitability of the parents’ request.

 

Royal Borough of Kensington and Chelsea v MJ [2017] UKUT 102 (AAC) (para. 23)
The Upper Tribunal described barring/striking out as a “draconian remedy of last resort”, but one that can lawfully be applied in an inquisitorial jurisdiction if proportionate.

• Significance: Reinforces that barring does not remove the Tribunal’s duty to apply the law properly.

 

What if the LA applies for reinstatement?

If the LA seeks reinstatement, the Tribunal has discretion under rule 8(6)–(7) of the 2008 Rules to grant it if “the interests of justice” so require.

Case law shows that:

• Royal Borough of Kensington and Chelsea v MJ [2017] UKUT 102 (AAC) (para. 23): barring is a last resort, so reinstatement may be allowed if refusal would cause unfairness.
• Camden v FG [2010] UKUT 249 (AAC) (para. 11): reinstatement may be granted where appropriate, although persistent failure to comply justifies barring in the first place.

If reinstatement is granted close to the hearing, the LA may also ask for the hearing to be varied (for example, an adjournment to prepare evidence). The Tribunal has powers under rule 5 of the 2008 Rules to adjourn or vary directions. In deciding, it must balance:

• the parents’ right to a timely and fair hearing – perhaps this would be particularly relevant if the was a transition appeal or the child had been out of school for a long time;
• the seriousness of the LA’s default; and
• whether late participation would cause injustice.

In practice, the Tribunal may:

• refuse reinstatement if the LA’s failings were persistent and unjustified;
• grant reinstatement but limit participation (e.g. excluding late evidence); or
• grant reinstatement and adjourn, but only where fairness requires it.

 

Conclusion

The Tribunal cannot simply grant the parents’ requested school because the LA is barred. It must still decide whether the parental preference meets the statutory tests under the Children and Families Act 2014, sections 38–40 and the Education Act 1996, section 9, and it must ensure there is enough evidence to reach a proper decision.

That said, if the LA does not apply for reinstatement and remains barred, it will have no opportunity to oppose the parents’ evidence. In that situation, provided the parents supply credible evidence that their preferred school is suitable and not incompatible with statutory requirements, the Tribunal is much more likely to order that the school is named in Section I.

If the LA applies for reinstatement, the Tribunal will weigh the interests of justice. It may allow reinstatement but place restrictions on the LA’s participation, or it may refuse if doing so would unfairly prejudice the parents.

This, of course, is not legal advice but I hope it is of some assistance. I look forward to reading any other contributions and of course hope the parents get the right result for their child.

Sean Kennedy



Sean Kennedy

28 Aug 2025

This is helpful

|

Comment

Post