Upper Tribunal orders fresh hearing of legal challenge by parents to council refusal to cease maintaining ECHP

Upper Tribunal Judge Stout set aside the decision of the FTT and remitted the case to the tribunal to register and determine the appellants' appeal against Sections B and F of the EHC plan.

The appellants in the case consider that their daughter does not require an EHC plan.

They sought to appeal to the FTT against the local authority's refusal to cease maintaining her EHC plan. However, the tribunal refused to register their appeal.

The parents’ position was that the local authority had wrongly classified their daughter as having special educational needs (SEN), when in fact her only difficulty is that English is not her first language.

The appellants appealed against the decision of Judge O'Neill in April 2025 refusing to admit the appeal on the ground that it was outside the jurisdiction of the FTT under section 51 of the CFA 2014.

Following an oral permission hearing in November 2025, Upper Tribunal Judge Stout granted permission to appeal on two grounds:

1. The First-tier Tribunal erred in law in concluding that it did not have jurisdiction to hear an appeal against a decision not to cease maintaining an EHC plan; and,
2. The First-tier Tribunal erred in law in failing to consider admitting and/or failing to admit the appeal on the basis that the appellants were, in addition or alternatively, seeking to mount a 'standard' appeal under section 51(2)(e) of the CFA 2014 against Sections B and F of the EHC plan.

Considering the grounds, the Upper Tribunal judge decided that there is no “freestanding right of appeal” to the FTT against a local authority's decision to make or maintain an EHC plan, or its refusal to cease maintaining one.

However, the FTT erred in law in failing to register the appeal as a 'standard' appeal under section 51(2)(e) of the Children and Families Act 2014 against the contents of Sections B and F of the EHC plan.

Further, the tribunal should not have taken a decision refusing to register the appeal on the papers without a hearing.

In this respect, the Upper Tribunal’s decision was summarised as follows: “The First-tier Tribunal's practice of registering claims and appeals is not one expressly provided for in its rules of procedure and it should be operated only in accordance with the Practice Direction: Special Educational Needs or Disability Discrimination in Schools Cases (20 April 2021) (UW v Cheam Academies Trust (SEN) [2026] UKUT 53 (AAC) applied).

“The effect of that Practice Direction is to enable preliminary decisions on time points to be made on the papers at registration stage, subject to review at a hearing. However, if another ground for striking out part of a case exists, the First-tier Tribunal should notify the relevant party and make directions for determination of strike-out at a hearing.”

The appeal was dismissed on Ground 1, but allowed on Ground 2.

Judge Stout said: “I set aside the decision of the First-tier Tribunal and remit the case to the First-tier Tribunal to register and determine the appellants' appeal against Sections B and F of the EHC plan.”

Lottie Winson