[2025] UKUT 239 (AAC)

At the time of the First-tier Tribunal hearing, the appellants’ son (D) was attending X School (a community special school). The First-tier Tribunal describes the parties’ positions at that hearing in [6] of its decision as being that the appeal had started on the basis that the appellants objected to X School being named in Section I of D’s EHCP, but that by the start of the hearing their first preference was for X School to be named on the basis that there be “a robust review of [X] School and thereafter changes to ensure a harmonious community with full inclusion of [D] and others”. The First-tier Tribunal records in the decision that it explained that a school could not be named on such a conditional basis, and that the appellants asked for Y School (a different community special school) to be named. The local authority argued that Y School was not suitable for D and invited the First-tier Tribunal to name a ‘type’ of school in Section I. In its decision, the First-tier Tribunal identified the issues it needed to decide as being: (1) whether Y school was unsuitable for D’s age, ability, aptitude or special educational needs; and (2) if so, whether ‘special school’ should be named as type of placement in Section I of D’s EHC plan.

The First-tier Tribunal went on to decide the appeal in the local authority’s favour, concluding that Y School was not suitable, in particular because its cohort of pupils has Moderate Learning Difficulties (MLD) whereas D has Severe Learning Difficulties (SLD) so that D would not have an appropriate peer group.

At [13] the Tribunal considered the second issue of whether it would be appropriate to name ‘special school’ as a type of school in Section I. The decision notes that the appellants had said they had identified a potential school closer to home than those identified by the local authority and had shared the details with the local authority for a consultation. The Tribunal noted, “While we are unable to direct a meeting takes place to discuss options, there is some urgency in identifying a suitable school and we expect the LA will act promptly in that regard in the fulfilment of its obligations”. The Tribunal therefore named a type of school in Section I.

The Tribunal made no determination as to the suitability or unsuitability of X School, simply noting in [9] that the appellant’s objections to it were “founded in their disapproval of the school’s ethos and principles of inclusivity which did not accord with those of the appellants”.

D was at the time of the Tribunal hearing still attending X School. The parties have informed me that, subsequent to the Tribunal’s decision, the local authority on 2 May 2025 unilaterally consented to the removal of D from the roll of X School so that he ceased to be registered as a pupil there. The appellants were not asked whether they consented to that course. Only the local authority’s consent is required for a removal under regulation 8(2) of the Education (Pupil Registration) (England) Regulations 2006. X School did agree to allow D to continue to attend for a period and the local authority proposed an interim tuition package of 25 hours per week while a new school was identified. The local authority then went through a process of producing a new draft EHC Plan and inviting the appellants to put forward schools for consideration.

There appears to have been a breakdown in communications and relations between the parties in the course of this process. The appellants were very unhappy about the local authority removing D from the roll of X School without their consent. They felt that he had been unlawfully excluded effectively because of the breakdown in the relationship between them and X School, when in fact there was no reason why D could not continue attending. They were also unhappy with the school(s) proposed by the local authority and had not identified an alternative they were happy with themselves. They did not accept the tuition package either. They submitted complaints to the local authority and the ombudsman.

The local authority on 2 June 2025 notified them that a final EHC Plan would name Z School and this was then issued. The appellants said at this hearing that they do not want D to attend Z School as the journey is too difficult/long. As it emerged at the hearing before me, the appellants’ preference is now for D to return to X School.