Do parents automatically get their choice in Section I, if a council has been "bared from taking part in any proceedings" by the Tribunal?
The Council have missed the deadline for submitting their evidence to Tribunal, and missed all subsequent deadlines. The Tribunal have responded by saying: "It is ordered: The LA is bared from taking part in any proceedings pursuant to Rule 8(2)." (however it goes on to say: "the LA may apply within 28 days of this Order, for its participation to be re-instated pursuant to Rule 8(6)".) The date of the letter is 13/08/25 + 28 days = 10/09/25. The appeal is held on 12/09/25.
The parents are going to Tribunal because they object to the school listed in Section I. Because the Council have been bared from proceedings, and if they do not respond by 10/09/25, does this mean the parents automatically get the school they requested for their child?
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 25 Sep 2025
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No
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Complex
Super Simple summary to help a parent explain the law to a child
If the council does not turn up to the meeting about your school, the judge still has to decide what is best for you. The judge will listen to what your parents say, and read the papers. But just because the council is not there does not mean you automatically get the school you and your parents want. The judge must still check the rules to make sure it is the right choice for you.Summary in simple English
Even though the council has been stopped from taking part in the case because they missed the deadlines, this does not mean the parents automatically win or get the school they want written into Section I of the Education, Health and Care Plan. The Tribunal must still look at the law and the evidence presented. The Tribunal may give more weight to the parents’ case because the council has not provided its side, but the decision must still be based on whether the parents’ chosen school meets the legal tests in the Children and Families Act 2014 and the SEND Regulations.Draft technical answer
Where a local authority is barred from proceedings under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, the effect is that the authority cannot actively participate unless it successfully applies for reinstatement under Rule 8(6). This usually occurs if it has failed to comply with Tribunal directions and has ignored repeated deadlines.However, this procedural sanction does not mean that the parents automatically succeed in securing the school of their choice for Section I of the Education, Health and Care Plan. The Tribunal has an inquisitorial role and is obliged to reach a decision based on the evidence before it and on the statutory framework in section 38–39 Children and Families Act 2014.
In particular:
Parents have a right to request a school under section 38(2) CFA 2014.
The Tribunal must order the school unless one of the exceptions in section 39(4) CFA 2014 applies (unsuitability for age/ability/aptitude/SEN; incompatibility with efficient education of others; or incompatibility with efficient use of resources).
If the local authority has not filed evidence, the Tribunal may have less or no evidence to show that an exception applies. However, the Tribunal may still test the parents’ evidence and may refuse the request if, on the face of the evidence, one of the statutory exceptions is engaged.
Therefore, the parents do not obtain their choice “automatically”. Instead, the Tribunal is more likely to accept their evidence in the absence of rebuttal from the local authority, but the Tribunal is not bound to do so.
The fact that the local authority remains barred after 10/09/25 means that at the hearing on 12/09/25 it cannot take part unless reinstated. However, the Tribunal retains discretion to ensure the statutory tests are satisfied and the order it makes is lawful.
Answers from the No-nonsense Guides
[there appears to be no directly identical question/answer in the No-nonsense Guides on automatic entitlement when a local authority is barred, though related answers on parental preference and Section I can be found in the Noddy No-nonsense Guide to SEN Law and the No-nonsense Guide to SEND Exclusions]
Answers from the Support SEND Ask Experts
[there appears to be no directly identical Q&A on Support SEND Kids Ask Experts concerning barring under Rule 8, though there are relevant discussions on Section I parental preference disputes]Relevant Statutes, Regulations, Codes and Case Law
Children and Families Act 2014, section 38 (Parental request for school) Link
Children and Families Act 2014, section 39 (Duty to secure place at school requested by parent or young person) Link
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, Rule 8(2) and Rule 8(6) Link
Case law: Essex CC v SENDIST [2006] EWHC 1105 (Admin) – parental preference considered in context of statutory exceptions
Case law: NA v LB Barnet [2010] EWCA Civ 1007 – Tribunal’s inquisitorial duty
Practical hints and tips
Parents should prepare strong evidence in support of the chosen school (needs, suitability, ability to meet provision in Section F, cost comparisons).
Do not assume success because the local authority is barred; the Tribunal will still scrutinise the request against the statutory criteria.
If the LA remains barred, parents may face less opposition, but the Tribunal may ask searching questions itself.
Parents should be ready to explain why none of the exceptions in section 39(4) CFA apply.
Consider submitting witness statements from the school, professionals, or independent experts to reinforce suitability.
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