PS v LB of Wandsworth (SEN): [2025] UKUT 239 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 14 July 2025.
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Judicial Summary
The appellants’ child (D) attended X School (a special school). Following a breakdown in relations between the appellants and X School, the appellants appealed to the First-tier Tribunal seeking to have Y School named. D continued attending X School in the meantime. The First-tier Tribunal found Y School to be unsuitable. Neither party invited the Tribunal at the hearing to consider another school, although they were in the process of identifying alternatives. The Tribunal accordingly named ‘special school’ as a type in Section I. The local authority subsequently consented to D being removed from the roll of X School, without consulting with the appellants. The local authority acted on the understanding that removing D from the roll of X School was a consequence of the Tribunal’s decision.
The appellants sought permission to appeal on the basis that the Tribunal had failed sufficiently to safeguard D’s rights to prevent him being ‘off-rolled’ without the appellants’ consent. The Upper Tribunal refused permission to appeal.
The Tribunal’s decision to name a type of school was not arguably erroneous given the circumstances as they were at the time of the Tribunal hearing. The removal of X School’s name from Section I of D’s Education, Health and Care (EHC) Plan did not of itself arguably cause, require or even permit the local authority to remove D from X School without consultation with the parents either by way of considering, in accordance with the statutory framework: (i) parental preferences for alternative schools; or (ii) making provision of education otherwise than at school. Further, although X School ceased to be under a duty to admit D as a result of the Tribunal’s decision, D was already a pupil at the school and could not be excluded from school otherwise than in accordance with normal procedures. Neither the First-tier Tribunal or the Upper Tribunal on appeal have any powers of enforcement. The First-tier Tribunal was entitled to proceed on the basis that the local authority would comply with its statutory duties. There was no arguable error of law in its decision.