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• 05 Sep 2026

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Can't answer yes or no.:

Dear M G,

These are some preliminary observations based on the information you have provided. They are intended to provide general information only, relate solely to the facts you have given, and should not be treated as legal advice on your individual case. If you require legal advice about your particular circumstances, you may wish to approach a solicitor or barrister experienced in SEND law.

First, an EHCP must be reviewed at least every 12 months. The amendment of your son's EHCP in April 2026 followed the Tribunal proceedings. That process is separate from the statutory Review process for an EHCP.

It may therefore be worth checking when the last formal Review was actually completed. If more than 12 months have passed without a Review, you could raise this directly with the local authority and, if necessary, consider using its formal complaints procedure. If the failure is continuing and is materially affecting the secondary transfer process, you may also wish to obtain legal advice about whether a public law remedy, such as judicial review, should be considered.

The secondary school's indication that it normally expects EHCP consultations before June of Year 5 is a different issue. That may be the school's preferred timetable, and there are obvious advantages to consulting early, but it is not the statutory deadline.

For a child transferring from primary to secondary school in September 2027, the local authority must review and amend the EHCP as necessary for the transfer by 15 February 2027.

If the missed Review has meant that your preferred mainstream academy was not consulted at the stage when it would normally consider children with EHCPs, you could raise this expressly with the local authority and ask for the school to be consulted promptly.

Your preferred mainstream academy

The legal sequence matters here.

The first stage is your request for the particular mainstream academy.

You are entitled under section 38 of the Children and Families Act 2014 to ask for your preferred mainstream academy to be named in Section I of the EHCP.

Once that request is made, the local authority must consider it under section 39. It must normally name the requested mainstream academy unless one of the statutory exceptions in section 39(4) applies.

At this stage, the local authority can consider whether the particular mainstream academy is unsuitable for your son's age, ability, aptitude or SEN, and whether his attendance would be incompatible with the efficient education of others or the efficient use of resources.

I would therefore suggest putting your preferred mainstream academy clearly as your first preference on the Phase Transfer form. You might also consider writing separately to the local authority to make clear that you are formally requesting that mainstream academy under sections 38 and 39.

If the local authority refuses your particular preferred mainstream academy under section 39, however, that is not necessarily the end of the matter.

If you want your son to be educated in a mainstream school, the local authority must then consider the separate mainstream duty in section 33. This is a different legal test.

Under section 33, neither the supposed unsuitability of mainstream education for your son nor the efficient use of resources is a free-standing reason for refusing mainstream education.

The relevant question is whether educating your son in mainstream would be incompatible with the efficient education of other children.

Even then, the local authority can rely on that exception only if it can show that there are no reasonable steps that could be taken to prevent that incompatibility. When considering whether a particular step is reasonable, matters such as practicality, effectiveness, disruption and financial implications may be relevant.

It is also important to keep this separate from the duty to make reasonable adjustments under the Equality Act 2010. If your son is disabled for the purposes of the Equality Act, the responsible body for the particular academy would have a separate statutory duty to make reasonable adjustments so that he is not placed at a substantial disadvantage because of his disability. That is a separate statutory obligation and should not be confused with, or treated as a substitute for, the section 33 reasonable-steps test. The SEN and Equality Act regimes may overlap in practice, but they remain legally distinct.

This distinction is relevant to comments that your preferred mainstream academy is “too academic” or “too busy”, or to references to your son's “Working Towards Standards” profile.

Those matters might be relevant when the local authority is considering your particular preferred mainstream academy under section 39. They do not, however, establish that your son should not receive mainstream education under section 33.

If concerns are raised about whether a mainstream placement can presently meet your son's needs, that does not by itself justify refusing mainstream education. If mainstream education is required, the local authority must identify an appropriate mainstream placement and ensure that the EHCP specifies the special educational provision your son requires.

In some cases, the identification of additional special educational provision may mean that a school which was initially regarded as unsuitable under section 39 can nevertheless become an appropriate placement.

That question should remain separate from the section 33 reasonable-steps test. The latter is concerned with whether reasonable steps can prevent incompatibility with the efficient education of other children; it should not be converted into a different test about whether the placement is compatible with the education of your son.

So, if the concern is that he would struggle in a busy environment, requires additional adult support, differentiated teaching, sensory provision or some other form of special educational provision, an important question will be:

What provision does he require in order for his needs to be met in mainstream?

The existence of those needs should not simply be treated as establishing that mainstream education itself is unsuitable.

If other mainstream schools are proposed

If the local authority proposes one or more other mainstream schools, those schools and your preferred mainstream academy can all become candidate schools when deciding which mainstream placement should eventually be named.

All mainstream schools put forward by you or by the local authority are candidates. This includes your preferred mainstream academy, even if the local authority rejected it at the initial section 39 stage.

The question then becomes which of those candidate mainstream schools should be named in Section I.

At this stage, you do not have an absolute right to insist upon one particular school. However, because your son is a child, section 9 of the Education Act 1996 is relevant. In broad terms, it requires the decision-maker to have regard to the principle that children should be educated in accordance with their parents' wishes, so far as that is compatible with efficient education and does not involve unreasonable public expenditure.

Your preference for the mainstream academy therefore continues to have legal significance when choosing between the candidate mainstream schools.

Transport costs can also be a relevant factor when comparing those schools. The fact that one placement involves greater transport costs does not, by itself, determine the issue, but those costs can form part of the assessment, including the question under section 9 of the Education Act 1996 of whether the additional public expenditure would be unreasonable. The actual transport required should be considered realistically, including what would constitute suitable transport for your son.

The primary school and SENCO are, of course, entitled to express professional views and provide evidence about your son's needs. However, they do not themselves decide which school is named in Section I.

If your preferred mainstream academy is not named

Finally, if the EHCP is amended following the phase-transfer Review and your preferred mainstream academy is not named in Section I, you have a right of appeal to the First-tier Tribunal.

You may wish to consider whether mediation could assist before appealing. However, if the appeal concerns only the school or type of school named in Section I, you are not required to obtain a mediation certificate before appealing. If you also challenge other educational parts of the EHCP, such as Sections B or F, the mediation certificate requirement will apply.

If an appeal is necessary, the Tribunal does not simply decide whether the local authority acted reasonably. In an educational appeal, the Tribunal effectively stands in the shoes of the local authority and makes the decision for itself on the evidence available at the time of the hearing. It would therefore apply the statutory tests outlined above when deciding what should be specified in Section I.

Given that this is a phase-transfer case, there is an obvious practical need for the secondary placement to be resolved in sufficient time before September 2027. If an appeal becomes necessary, I would therefore give serious consideration to asking the Tribunal to expedite the appeal.

I hope this is of some general assistance. I have dealt with many appeals arising in similar circumstances and can assure you that your experience is not unique. I look forward to reading other contributions.

Sean Kennedy



Sean Kennedy

05 Sep 2026

This is helpful

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