First-tier Tribunal is “suitable alternative remedy” to judicial review in EHC plan dispute, High Court rules

The High Court has dismissed a judicial review application brought on behalf of a young person with complex needs over the lawfulness of an Education, Health and Care (EHC) Plan issued by the London Borough of Islington, after finding that the First-tier Tribunal is a “suitable alternative remedy”.

In R (LW) v London Borough of Islington [2025] EWHC 703 (Admin), following a rolled-up hearing, Kate Grange KC, sitting as a deputy judge of the High Court, concluded that none of the three grounds submitted were arguable, observing that the claimant has an alternative remedy in the First Tier Tribunal, “which is the appropriate forum for the complaints made about the EHC Plan to be ventilated and resolved”.

Commenting on the outcome of the case, Alex Line of Outer Temple Chambers, who represented the local authority, said: “The case is of importance because it provides detailed consideration of the case law relating to the viability of using judicial review where a statutory right of appeal exists. This is a topical issue in the light of the backlog in the Tribunal system, and concerns about the time it takes to get statutory appeals concerning EHC Plans to final hearings in the SEND jurisdiction of the First-tier Tribunal.

“It also confirms an important point of practice for individuals and local authorities. The Court confirmed that, in circumstances where a statutory re-assessment of needs is being undertaken, a local authority need not carry out an annual review where the date for doing so falls in the re-assessment period, if through the re-assessment the local authority in substance does what would be achieved through an annual review.”

The claimant, LW, had brought the judicial review claim in response to a decision by the local authority to issue an EHC Plan following a statutory re-assessment process.

She alleged that the re-assessment had not been lawfully completed, that the local authority had erred by not undertaking an annual review, and sought a quashing of the resulting EHC Plan which was also alleged to be unlawfully produced.

In response, counsel for the local authority submitted that permission for judicial review should be refused on the basis that the claimant had an “effective alternative remedy” - namely an ongoing appeal to the First Tier Tribunal Special Educational Needs and Disability ('FTT').

Outlining the factual background to the case, the judge noted that LW, aged 14, has a complex profile of medical conditions including a rare form of cerebral visual impairment, combined with complex sensory integration issues including hyperacusis (a disorder in loudness perception), and auditory processing difficulties. LW also has Down Syndrome and significant mental health difficulties.

The council has responsibility for meeting LW's special educational needs, which have previously been met by an 'Education Otherwise Than In School' (EOTIS) package.

In December 2021, an EHC Plan was prepared by the council in respect of LW.

In February 2022, an appeal to the FTT was made by LW's parents which challenged a number of sections of that plan. At that time, the parents wanted New College Worcester (NCW) to be named in the EHC Plan as the place where LW would attend school - a special residential school for children and young people between 11-19 who are blind or vision impaired.

Discussions took place between the council and NCW and on 8 April 2022, the school confirmed it was able to meet LW's needs.

The council agreed to name NCW in Section I of the EHC Plan, and agreed to include all of the provision which had been requested by the parents in Section F of the plan, which the school suggested it could provide.

In July 2022, the EHC Plan was finalised. It named NCW as the place where LW would attend secondary school from September 2022. However, unfortunately LW's placement at the school broke down within a few weeks.

According to a SEND Operations Manager for the council, NCW “expressed concern” in early October 2022 that the detail within the EHC Plan was “not deliverable” within a school, and wrote to LW's parents giving notice of the termination of the placement.

In that correspondence, the Principal of NCW stated that the EHC Plan was "very lengthy and contains a lot of repetition" but "most importantly" contains "provision in Section F which this College cannot provide".

An annual review of the July 2022 plan took place on in January 2023, in order to discuss a change of placement following the breakdown of the placement at NCW.

The judge noted that according to the SEND Operations Manager, there remained “fundamental disagreements” between the council and the parents prior to the final hearing in the FTT in April 2023.

At the final hearing, the parents indicated that they wanted the EHC Plan to reflect a transition to a new school, the St Vincent's School in Liverpool, a specialist school for children with sensory impairments.

However, that was a new case which the FTT indicated it was not able to deal with without an adjournment and, in the event, the parents were given permission to withdraw their appeal to the FTT.

Following this, the council decided to start a statutory re-assessment process of LW's special educational needs.

In December 2023, the council wrote to LW's parents explaining that it had applied an exemption to the 20-week time limit for the EHC assessment of LW's needs in line with the 2014 Regulations, due to exceptional personal circumstances affecting LW during the assessment period.

A Multi-Disciplinary Team (MDT) meeting took place in January 2024 which included the local authority professionals and LW's parents.

The judge noted that during the assessment process it was not possible for the council to obtain advice about LW's needs from NHS speech and language therapists, occupational therapists or physiotherapists, due to LW being unfit to be assessed directly by professionals appointed by the council.

Therefore, the local authority included within the new EHC Plan the recommendations which had been made in those areas from the family's commissioned reports, to ensure that provision would be made for LW's identified needs.

In July 2024, a draft EHC Plan was issued to LW's parents and the final EHC Plan was sent the following month to the parents and professionals.

The judge noted: “No school placement is named at Section I, but on 9 September 2024 the Defendant consulted with St Vincent's school in line with the parental preference. On 17 September 2024, St Vincent's responded indicating that they would consider offering LW a place based on the July 2022 EHC Plan as part of a hybrid arrangement, but did not feel it appropriate on the basis of the August 2024 EHC Plan.”

In December 2024, an appeal against the August 2024 EHC Plan was commenced in the FTT by LW's parents – seeking various changes to the identification of special educational needs and contending that St Vincent's School should be specified in Section I.

In the High Court, the claimant relied upon three grounds of challenge:

1. A failure to conduct a lawful re-assessment of the Claimant's special educational needs, in accordance with ss. 36 and 44 of the Children and Families Act 2014 ('the 2014 Act'), prior to the issuing of the EHC Plan dated 6 August 2024;
2. A failure to hold an annual review of the EHC Plan dated 18 July 2022;
3. A failure to comply with Regulation 7 of the Special Educational Needs and Disability Regulations 2014 ('the 2014 Regulations') and/or irrationality when preparing the 6 August 2024 EHC Plan, in failing to consider expert reports available to the Defendant.

On ground one, counsel for the claimant submitted that the council did not conduct a “lawful assessment” of LW's needs pursuant to section 36 and 44 of the 2014 Act.

Attention was drawn to four passages in the August 2024 EHC Plan where the council recorded that it was not possible for it to complete an assessment of LW's needs through the statutory assessment process due to concerns about LW's mental health.

On behalf of the council, Mr Line accepted that the re-assessment which was done by the local authority before it produced the August 2014 EHC Plan “essentially mirrored the assessment process under section 36 of the 2014 Act”.

He submitted that the assessment was lawfully completed; a new EHC Plan was, in fact, produced in August 2024 and the new assessment addressed all of the matters required to be assessed under Regulation 6(1) of the 2014 Regulations, which did not mandate that the council had to obtain new evidence in all of the categories highlighted by the claimant.

He also submitted that the August 2014 EHC Plan did, in fact, make provision under each of these areas based on the reports LW's family had obtained on her behalf and was therefore not incomplete.

The judge accepted the defendant council's submissions.

She said: “There is no merit in the Claimant's suggestion that the assessment which was done was incomplete and thereby unlawful such that this court should quash the August 2024 EHC Plan.

“[…] While Mr Friel submitted that there was some variation between what these reports recommended and what had been included in the August EHC Plan, that is not an issue which is appropriate for judicial review in circumstances where there is a live appeal in the FTT in relation to the contents of the EHC Plan and where the FTT is the specialist tribunal in relation to these matters.”

Turning to ground 2, that the local authority had erred by not undertaking an annual review, the judge noted: “What the claimant is inviting this court to do is to quash the August 2024 Plan and order an annual review of the July 2022 EHC Plan. That would be to unravel important events which have occurred since the placement named in the July 2022 EHC Plan broke down. It does not seem to me that there is any proper basis upon which this court could set the clock back in that way. The Claimant is actively pursuing an appeal against the August 2024 EHC Plan in the FTT and that is the appropriate remedy which should be pursued, not this challenge.”

She concluded that ground 2 was not arguable.

Finally, considering ground 3, which concerned the content of the EHC Plan of August 2024, the judge said: “As I have set out above, where there is an alternative remedy in the form of an appeal to a specialist tribunal, it will only be in exceptional circumstances that the courts will entertain judicial review and the types of cases where that might happen are usually akin to abuse of power of a serious character or conduct in defiance of the rule of law.

“Further, Regulation 7 of the 2014 Regulations is clear that the local authority only needs to "consider" any information provided to it by or at the request of the child's parents and any information or advice it obtains under Regulation 6(1). Accordingly, there is only an obligation to take the material into account, not an obligation to reflect all of the contents of that material in the final EHC Plan.”

The judge observed: “When I pressed Mr Friel (counsel for the claimant) to identify what it was about the claimant's case which made it exceptional such that the Administrative Court should intervene despite the availability of a statutory appeal to the specialist tribunal, the only factors he was able to identify were the delay which would occur before the final hearing in the FTT, which is due to take place in December this year, and the extreme circumstances of LW, including her mental health and the fact that she has been suicidal.

“While I recognise that delay, and the predicament LW faces in finding a suitable specialist school placement are matters which must be causing real distress to her and her family, I cannot see how these factors are different from the position of many children and young people who have appeals pending before the FTT.

“In my judgment, those factors do not justify this court exercising its powers in circumstances where an alternative and specialist remedy exists. […] I do not accept that the Claimant is able to identify factors in this case which satisfy the high bar identified in the relevant authorities.”

Kate Grange KC concluded that none of the three grounds of challenge were arguable. She refused to grant permission for judicial review and dismissed the claim.

Lottie Winson