Can you go to judicial review and to first tier tribunal?
A: SenseCheck
- 1 Yes
- 1 No
- 0 Other
- 04 Jun 2025
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Yes
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Complex
Categorisation:
YES — it is legally possible to apply to both the First-tier Tribunal (SEND) and to seek Judicial Review but only where the two legal routes are clearly addressing different legal issues, and only after strict legal requirements are met.
COMPLEX — there are important distinctions and conditions between the two legal routes that must be understood.Super Simple summary to help a parent explain the law to a child
If something has gone wrong with the support you get at school, there are two places you can ask for help. One is a special court called the Tribunal, where people decide if the school or council has made the right choices about your Education, Health and Care Plan. The other is a higher court called the High Court, which you only go to if the law was broken and there’s no other way to fix it. You can’t use both at the same time for the same thing, but sometimes you might be allowed to use both if they are about different problems.
Summary in simple English
Yes, it is possible in some situations to go both to the First-tier Tribunal (Special Educational Needs and Disability) and also apply to the High Court for Judicial Review. These are different legal routes that deal with different problems. The Tribunal usually looks at whether decisions about a child’s special educational needs are right — for example, whether an Education, Health and Care Plan (EHCP) is correct. Judicial Review is about whether a public body, such as a local authority or school, has acted unlawfully — for example, by not following the law or acting unfairly. You cannot use both routes for the same issue at the same time, but sometimes you can use them for different parts of a situation.
Draft technical answer
Where a child or young person with special educational needs and/or disabilities (SEND) is affected by decisions made by public authorities such as local authorities or schools, legal remedies are available under two primary mechanisms: the First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”), and judicial review in the High Court.
The general rule is that where an adequate alternative remedy exists — such as an appeal to the Tribunal — an application for judicial review will usually be refused. This is an application of the legal principle of exhaustion of alternative remedies. However, there are clear exceptions where both avenues may be lawfully used, provided that:
they address different legal issues;
they are not being pursued simultaneously for the same complaint or cause of action;
and the claimant is not attempting to relitigate in one forum an issue already determined by the other.
Use of the SEND Tribunal
The SEND Tribunal has exclusive jurisdiction to determine statutory appeals under Part 3 of the Children and Families Act 2014. These include decisions relating to:
whether to issue or amend an Education, Health and Care Plan (EHCP);
the description of special educational needs and the provision to be made;
the named placement (or the absence of one);
and in extended jurisdiction cases, appeals about health and social care content of the EHCP where linked to a special educational appeal.
The Tribunal also has jurisdiction under the Equality Act 2010 to hear disability discrimination claims against schools and local authorities.
Use of Judicial Review
Judicial review is available where no statutory right of appeal exists, or where the challenge concerns unlawful conduct by a public body — for example:
failure to comply with a statutory duty (such as not securing provision in an EHCP under section 42 of the Children and Families Act 2014);
unreasonable delay in taking required action (such as issuing a draft EHCP);
or breaches of procedural fairness or irrational decision-making.
Judicial review may be appropriate either before a right of appeal becomes available, or in respect of decisions/actions which are not within the jurisdiction of the SEND Tribunal.
Can both routes be used?
Yes, but only carefully and only in appropriate circumstances. For example:
Sequential use: A parent may use the Tribunal to appeal the contents of an EHCP, and later bring a judicial review if the local authority fails to implement the outcome of the Tribunal or continues to act unlawfully.
Distinct grounds: A parent may apply for judicial review for failure to comply with the statutory timescales under the SEND Regulations 2014 while also pursuing a separate appeal to the Tribunal about the contents of the EHCP.
Case law confirms this position: In R (N) v North Tyneside Council [2010] EWHC 137 (Admin) the High Court held that a Tribunal decision could not oust judicial review where it concerned issues beyond the Tribunal's jurisdiction.
Key Caution: The Tribunal cannot award damages. If a claim for damages under the Human Rights Act 1998 or for breach of the Equality Act 2010 is sought, that must go either to the county court or High Court (if appropriate). Likewise, judicial review proceedings must be brought promptly and within three months of the alleged act or omission.
Answers from the No-nonsense Guides
Noddy No-nonsense Guide to SEN law
5.17 > What do I do if the Local Authority fails to implement the order of the Tribunal?
You should consider writing a pre-action protocol letter before claim for judicial review. You could also write to the Local Authority Monitoring Officer.
https://supportsendkids.org/noddy-guides/sen-law/#5.17No-nonsense Guide to Disability Law in Education
2.3 > What’s the difference between going to the Tribunal and using Judicial Review?
The Tribunal can make a range of orders about SEN and disability discrimination but cannot award damages. Judicial review can be used when a public authority acts unlawfully or fails to act, but only where no alternative remedy is available (such as a right of appeal to the Tribunal). The Tribunal is the specialist route for most SEND issues..t
Answers from the Support SEND Ask Experts
https://supportsendkids.org/questions/can-i-do-both-sendist-and-judicial-review
Can I do both SENDIST and judicial review?
It is legally possible, but you must be careful not to challenge the same issue in two different forums. Judicial review is a remedy of last resort and will not be granted where the Tribunal has jurisdiction. However, if you are challenging a delay or failure to act (e.g., failure to implement a Tribunal decision), judicial review may be appropriate after a Tribunal case.Relevant Statutes, Regulations, Codes and Case Law
Children and Families Act 2014, sections 36–49
SEND Regulations 2014
Equality Act 2010
R (N) v North Tyneside Council [2010] EWHC 137 (Admin)
Judicial Review and Courts Act 2022 — outlines changes to procedure and remedies
Practical hints and tips
Check if your issue falls under the jurisdiction of the SEND Tribunal. If it does, you must usually use the Tribunal route first.
Use judicial review to challenge delays or failures to act, or where the issue falls outside the Tribunal’s powers.
Judicial review requires a pre-action protocol letter. Templates are available from IPSEA and other legal resources.
Be clear not to duplicate issues between Tribunal and High Court proceedings. Courts will strike out or stay claims that attempt to relitigate.
Seek legal advice before issuing judicial review — the process is complex and strictly time-limited.
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- 14 Mar 2025
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No
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Simple
Victoria,
No – you cannot generally bring a judicial review simply because you disagree with the contents of an EHCP. Judicial review is a legal mechanism used to challenge the lawfulness or procedural fairness of a decision made by a public body. However, when it comes to EHCPs, there is a statutory right to appeal through the Special Educational Needs and Disability Tribunal. This tribunal is the appropriate forum for contesting the contents of an EHCP, and judicial review is not available if an alternative appeal route exists. In other words, if you’re unhappy with your EHCP, you should first use the established appeal process rather than trying to pursue a judicial review.
This question is frequently asked and is addressed in the current version of the Noddy Guide here:
Can you go to judicial review and to first tier tribunal?
It follows, therefore, that you cannot also have two bites of the cherry at the same time in relation to the same matter, if that makes sense.
Sean Kennedy
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Comment