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
- 1 Yes
- 0 No
- 0 Other
- 11 Aug 2025
-
Yes
|
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
11 Aug 2025
|
Comment