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
- 2 No
- 1 Other
- 22 May 2026
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Other
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Complex
Can't answer yes or no.:
Super Simple summary to help a parent explain the law to a child
The Tribunal is like a referee in a game.
If the council does not follow the rules or send its homework in time the referee can stop them joining in.
But the referee still has to make sure the final decision is the right one for the child.
So the parents may have a much stronger chance of winning but it is not always an automatic win just because the council got into trouble.
Summary in simple English
A barring order under Rule 8(2) means the Tribunal has punished the Local Authority for failing to comply with Tribunal directions.
If the Local Authority does not apply successfully to be reinstated within the specified period then it may be prevented from taking further part in the appeal.
However the Tribunal still has to make a lawful decision about Section I. It does not simply rubber stamp the parents’ request automatically.
In practice though:
- the Local Authority may be unable to argue against the parents’ preferred school
- the parents’ evidence may go largely unchallenged
- the Tribunal may be more likely to order the parents’ preferred placement if the legal tests are met
The Tribunal still needs evidence that:
- the school is suitable for the child’s age ability aptitude and special educational needs and
- placement would not be incompatible with the efficient education of others or efficient use of resources under section 39 Children and Families Act 2014
So the parents are in a potentially very strong position but not an absolutely guaranteed one.
Draft technical answer
The order described appears to be a sanction imposed under Rule 8(2) of the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008.
A barring order is a serious procedural sanction and reflects substantial non-compliance by the Local Authority with Tribunal case management directions.
However the effect of such an order must be distinguished from an automatic substantive determination of the appeal in favour of the parents.
The wording you quote indicates:
- the Local Authority has been barred from taking further part in proceedings
- but retains a right to apply for reinstatement under Rule 8(6) within 28 days
If the Local Authority does not apply successfully for reinstatement by the deadline then the barring order may remain effective for the hearing.
However even where a party is barred the Tribunal still retains judicial responsibility for determining the appeal according to law.
In a Section I appeal the Tribunal must still consider the statutory framework under section 39 Children and Families Act 2014. The Tribunal cannot simply order the parents’ preferred school automatically without considering whether the statutory tests are satisfied.
The Tribunal will still usually need evidence concerning:
- the child’s special educational needs
- the suitability of the parents’ preferred school
- whether the school is appropriate for age ability aptitude and SEN
- whether attendance would be incompatible with the efficient education of others
- whether attendance would be incompatible with the efficient use of resources
That said the practical effect of a barring order can be highly significant.
If the Local Authority remains barred then typically:
- it may not file further evidence
- it may not make submissions
- it may not attend or participate fully at hearing
- it may be unable to challenge parental evidence
- it may lose the opportunity to argue section 39 objections
In many real-world cases this places parents in a very strong position particularly where:
- the parents have properly evidenced suitability
- the requested school has confirmed it can meet needs
- there is no contrary evidence before the Tribunal
- there is no evidence of incompatibility with efficient education or efficient use of resources
The Tribunal is not obliged to “invent” objections on behalf of the absent Local Authority. However the Tribunal may still ask questions of its own and may still scrutinise the evidence carefully.
There is also an important distinction between:
- a party being barred from participation and
- the appeal being automatically determined without a hearing
The Tribunal still has broad case management powers and may:
- proceed with the hearing in the Local Authority’s absence
- consider whether the evidence before it is sufficient
- issue further directions if necessary
- determine the appeal on available evidence
It is therefore safer legally to say:
- parents do not “automatically” get their choice merely because of a barring order
- but the Local Authority’s ability to resist the requested placement may be severely compromised
In practical terms if the Local Authority remains barred after 10/09/25 and the hearing proceeds on 12/09/25 the parents may have a substantially increased prospect of success provided their own evidence is strong and addresses the statutory placement tests.
Parents should therefore ensure before the hearing that they have filed:
- evidence from the requested school
- evidence the school can meet needs
- evidence regarding specialist provision
- responses to any potential section 39 objections
- transport and cost arguments where relevant
- witness statements if appropriate
Parents should not assume the case is won automatically and should still prepare thoroughly for the hearing.
Relevant Statutes, Regulations, Codes and Case Law
- Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 Rule 8
Governs sanctions for failure to comply with Tribunal directions including barring orders and reinstatement applications.
The Tribunal Procedure Rules 2008 - Children and Families Act 2014 section 39
Governs parental preference for schools and the grounds on which a Local Authority may resist naming the requested school.
Children and Families Act 2014 section 39 - Children and Families Act 2014 section 40
Duty to consult governing bodies of schools.
Children and Families Act 2014 section 40 - SEND Code of Practice 2015 paragraphs concerning parental preference and Section I placement decisions.
SEND Code of Practice
Practical hints and tips
- Parents should still fully prepare for the hearing even if the Local Authority remains barred
- Ensure all documentary evidence has already been filed on time
- Obtain written confirmation from the preferred school that it can meet needs
- Prepare concise submissions addressing section 39 directly
- Be ready to explain why the placement is efficient and appropriate
- Bring a hearing bundle with key documents clearly tabbed
- Do not assume the Tribunal will automatically order the requested school without evidence
- Check shortly before the hearing whether the Local Authority has applied for reinstatement
- If reinstatement is sought parents may oppose it particularly where delay and prejudice are substantial
- If the Local Authority remains absent parents may wish respectfully to remind the Tribunal that there is no evidence contradicting their case
- 10 Nov 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 a council is told by the judge that it cannot take part in the case, it simply means the judge will decide without hearing from the council. This does not mean the judge automatically has to say “yes” to the parent’s choice of school but they might do so if they consider it suitable for the child given their circumstances. The judge must still make sure that what the parents want is the right choice for the child and complies with the law.
Summary in simple English
When a council is barred by the Tribunal (for example, for not following orders or missing deadlines), the Tribunal can still make decisions about the child’s Education, Health and Care Plan (EHCP).
If this happens, the parents do not automatically get their chosen school or type of placement in Section I. The Tribunal must still check whether the parent’s preferred placement:
- is appropriate for the child’s needs,
- represents efficient use of public resources, and
- complies with the Education Act 1996 or the Children and Families Act 2014 (depending on whether it’s England or Wales).
Even though the council is not permitted to argue against the parent’s choice, the Tribunal is still required to apply the law and decide if the parent’s school choice meets the child’s needs properly. If it does, the Tribunal can order it. If not, the Tribunal can name another school or type of placement.
Technical Answer
When a Local Authority (LA) is barred from taking part in proceedings it is normally because the LA has failed to comply with the Tribunal’s directions, such as failing to file evidence or responses within deadlines. This can lead to an order under Rule 8 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, which allows the Tribunal to strike out a party’s case or bar them from further participation.
However, this does not automatically entitle the parent or young person to their preferred placement under Section I of the Education, Health and Care Plan (EHCP).
The Tribunal retains an independent statutory duty to determine the appeal, even where the LA can no longer participate, by applying the relevant sections of the Children and Families Act 2014 and associated Special Educational Needs and Disability Regulations 2014. Specifically, section 39(3)-(5) of the Children and Families Act 2014 requires the LA to name the parent’s preferred school or institution unless it would be unsuitable for the age, ability, aptitude or special educational needs of the child or young person, or it is incompatible with the efficient education of others or the efficient use of resources.
Accordingly, a parent’s preferred school is not automatically named. The Tribunal must still make findings of fact and law as to suitability and compatibility, even in the absence of the LA’s participation. As such, even where the LA is barred, parents should still file full evidence (e.g. independent reports, expert letters) so that the Tribunal can properly determine suitability.
- 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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