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• 21 Oct 2025

Yes

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Complex

Where a Local Authority (LA) names a school in Section I of an Education, Health and Care Plan (EHCP) that has expressly stated that it cannot meet the child’s needs, this may give rise to two separate routes of challenge depending on the circumstances:

Appeal to the First-tier Tribunal (Special Educational Needs and Disability) – under section 51 of the Children and Families Act 2014, the parent may appeal against the school named in Section I and/or the contents of Sections B and F.

The Tribunal has jurisdiction to consider evidence of the school’s capacity to meet need, the proportionality of any costs, and whether an Education Otherwise Than At School (EOTAS) arrangement should instead be named under section 61 of the same Act.

This is normally the proper route of challenge because it allows a full reconsideration of the child’s needs and placement.

Judicial Review (JR) – may be appropriate in exceptional and urgent circumstances. Judicial review is not an appeal on the merits but a challenge to the lawfulness of the LA’s decision-making process. It can only be brought where:

• the LA acted unlawfully or irrationally (for example, ignored clear professional evidence or named a school known to be unable to meet need);
• there is no adequate alternative remedy (for example, the SEND Tribunal cannot provide a timely remedy to prevent immediate harm); or
• the delay in securing a Tribunal hearing would cause the child significant and irreparable harm (for example, prolonged absence from education causing regression or anxiety).

In this case, since your daughter’s school has formally confirmed that it cannot meet her needs, and you have reason to believe she requires EOTAS provision, the LA’s decision to name that school may arguably be irrational. However, the High Court will expect that the parent first pursues the statutory appeal route unless there is clear evidence that the child is without suitable education and that the delay until Tribunal would cause harm.

In parallel, the LA’s section 19 Education Act 1996 duty is engaged — the LA must secure suitable education at home or elsewhere for children who, because of illness, exclusion, or other reasons, cannot attend a suitable school. This may be a temporary solution while Tribunal or JR proceedings are ongoing.

Therefore:

• JR may be considered if there is immediate educational deprivation and the LA refuses to act, despite evidence that the named school cannot meet need.
• Tribunal appeal remains the main route to challenge the named placement and to seek an EOTAS package.

 

Practical hints and tips

• Lodge a SEND Tribunal appeal within two months of the final EHCP or one month of the mediation certificate.
• Write to the LA formally requesting Section 19 provision pending the outcome.
• Keep all written evidence from the school confirming that they cannot meet need.
• Consider obtaining professional reports that support an EOTAS recommendation.
• JR may be pursued urgently (often within three months) only if there is no suitable education being provided and harm is likely before Tribunal.
• Seek urgent legal advice before issuing JR, as costs are high and pre-action protocol letters must be sent first.

AW

Amy Wong

21 Oct 2025

This is helpful

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• 11 Aug 2025

Yes

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Complex

Where a local authority issues a final Education, Health and Care Plan (EHCP) naming a school in section I despite clear evidence from the school that it cannot meet the child’s needs, the parent has a statutory right of appeal under section 51 of the Children and Families Act 2014 to the First-tier Tribunal (Special Educational Needs and Disability). The Tribunal has jurisdiction to consider both the school placement (section I) and the special educational provision (section F).

Ordinarily, judicial review (JR) will not be available if there is an alternative statutory remedy — such as a SEND Tribunal appeal — unless the case is urgent or the statutory remedy is clearly inadequate. JR is a discretionary remedy and the Administrative Court will expect applicants to use the SEND Tribunal unless there are exceptional circumstances, such as:

An urgent risk to the child’s safety, health, or wellbeing that cannot be addressed while waiting for a tribunal

A clear procedural flaw or unlawfulness in the LA’s decision-making (e.g., irrationality, failure to consider relevant evidence, breach of statutory duties under the Children and Families Act 2014 or the SEND Code of Practice)

A need for an interim order to prevent harm before the Tribunal can hear the case

If you suspect that your child requires an Education Otherwise Than At School (EOTAS) package under section 61 of the Children and Families Act 2014, you may request this formally. The LA must consider such a request if it is satisfied that it would be inappropriate for the provision to be made in a school. Evidence from the school that it cannot meet need is relevant to this assessment.

Given the school’s refusal and your child’s significant anxiety, your legal options include:

Lodging a SEND Tribunal appeal against the naming of the school in section I and possibly against the content of section F, with a request for an expedited hearing or interim measures

Considering pre-action correspondence for judicial review if there is an immediate and serious risk to your child or a manifestly irrational placement decision

Seeking interim provision under section 19 Education Act 1996 where a child of compulsory school age is not receiving suitable education due to illness, exclusion or other reasons

It is important to weigh the speed of JR against the Tribunal’s broader powers to remake the decision entirely. JR may quash the LA’s decision but will not itself name a new placement or order provision — the Tribunal can.

Practical Tips 

• Always request the LA’s reasons in writing for naming the school in section I despite the school’s refusal — this will assist in any appeal or JR claim
• Lodge your SEND Tribunal appeal within the 2-month deadline from the date of the final EHCP (or one month from the mediation certificate) even if you are considering JR — this preserves your rights
• If your child will be out of school in September, write immediately to the LA citing s. 19 Education Act 1996, requesting interim provision
• Instructing a solicitor experienced in SEND judicial review can help determine if your case meets the “exceptional” threshold for bypassing the Tribunal route



Grace Frampton

11 Aug 2025

This is helpful

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