Tribunal: do I point out school has verbally confirmed they can't meet need? I have lodged a refusal to issue appeal. School has admitted verbally they can't make the recommended provision in the summary of assessment report but seem unwilling to put this in writing. I think this is because if they admit they can't make provision that is (according to the LA) 'ordinarily available', they look bad. The evidence they have provided is really sloppy. Do I argue this at tribunal? Or, do I argue they've made best endeavours but still can't meet need? Child is ASD, EBSNA and new independent reports support that she needs a specialist placement. Thanks.
A: SenseCheck
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- 11 Aug 2025
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Yes
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Simple
Super Simple summary to help a parent explain the law to a child
Sometimes, a school may not be able to give you all the help you need, even if they say most children can get that help there. If that happens, the group of people who decide what extra help or school you should have needs to know. Even if the school only says this in a meeting and not in writing, you can still tell this group know so they understand what support is really needed.Summary in simple English
Yes – you can tell the tribunal that the school has said they cannot give your child the help set out in the assessment, even if they will not put this in writing. Keep a clear note of who said it, when, and what was said. Use this to show the gap between what your child needs and what the school can actually provide. You do not need to prove the school has done everything possible – the key point is that they cannot meet the needs. Back this up with your independent reports that explain why a specialist placement is required.Draft technical answer
In an appeal against a refusal to issue an Education, Health and Care Plan (EHCP), the First-tier Tribunal (Special Educational Needs and Disability) applies the legal test in section 36(8) of the Children and Families Act 2014. This requires the tribunal to consider:
- Whether the child has or may have special educational needs (SEN); and
- Whether it may be necessary for special educational provision to be made for the child in accordance with an EHCP.
Where a school has verbally confirmed that it cannot deliver the provision described in the Local Authority’s (LA) summary of assessment, this is relevant to both limbs of the test, particularly the second.
Evidential value of a verbal admission:
Whilst the tribunal will generally give greater weight to written evidence, contemporaneous records of verbal statements can be persuasive if they are clear, specific, and supported by other evidence. You should therefore:- Produce a signed and dated note of the conversation, identifying the person who made the statement, the date, the setting (e.g. meeting or phone call), and the exact words used.
- Cross-reference this note with independent expert reports and any LA or school documents that identify the child’s needs or recommended provision.
- Highlight where provision identified as “ordinarily available” by the LA is in fact not being delivered or cannot be delivered in the current placement.
Framing the argument:
You have two strategic options which can both be utilised at tribunal in a two-pronged approach:- Best Endeavours: Argue that, even with section 66 “best endeavours” duty in place, the school cannot meet the needs identified, demonstrating necessity for an EHCP.
- Provision gap focus: Use the verbal evidence in conjunction with the independent expert report to support the argument that the child needs a specialist placement.
In both approaches, the aim is not to allege fault but to demonstrate that, in reality, the current placement cannot meet the child’s needs without the legal protections and additional provision set out in an EHCP.
Supporting authorities:
- Children and Families Act 2014, section 36(8) – statutory test for issuing an EHCP.
- Children and Families Act 2014, section 66 – “best endeavours” duty on schools.
- SEND Code of Practice: 0–25 years (January 2015), paragraphs 9.14–9.16 (when to assess) and 9.54–9.55 (issuing plans).
- Mh v London Borough of Hounslow [2004] EWHC 770 (Admin) – confirms the importance of considering the practical reality of provision in determining suitability.
Application to your facts:
In your case, the child has Autism Spectrum Disorder (ASD) and Emotionally Based School Non-Attendance (EBSNA). The new independent evidence indicates that a specialist placement is necessary. The school’s verbal admission that it cannot meet the recommended provision, even if not documented in writing, is consistent with this expert evidence. Presenting both together strengthens the argument that the statutory test in section 36(8) is met and that an EHCP is required.
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