City council acted unlawfully in failing to secure SEN provision while appealing tribunal ruling, High Court finds

In DOL, R (on the application of) v Southampton City Council [2026] EWHC 2255 (Admin) (28 August 2026), Judge Barry Clarke concluded that by refusing for six months to implement the Attendance Provision of the claimant's amended EHC plan as ordered by the FtT, on the ground that it had an undetermined application to the Upper Tribunal for suspension, the council acted unlawfully.

The claimant, DOL, was a young person with complex special educational needs, including autism, global developmental delay and learning difficulties. The defendant local authority was responsible for maintaining his EHC plan.

The First-tier Tribunal allowed an appeal by DOL’s mother in a judgment issued in July 2025. It ordered the council to maintain and amend DOL’s EHC plan, including an “Attendance Provision” under which he was to attend five days a week at an institution, with 2:1 support.

The council was required to issue the amended EHC plan by 25 August 2025.

The council applied to the FtT for permission to appeal the decision. It did so on 7 August 2025.

The judge said: “The sole focus of its application for permission was the Attendance Provision. Pursuant to rule 5(3)(l) of the FtT Rules, the defendant also applied for a suspension of the effect of the FtT's order insofar as it related to the Attendance Provision.”

The FtT judge considered the defendant's proposed grounds of appeal and the application to suspend.

By a decision issued in September 2025, he agreed to consider setting aside the Attendance Provision and listed a review hearing by telephone for that purpose; and, pending that review hearing, he suspended the effect of the Attendance Provision. However, having read the detailed written submissions from the parties, the FtT judge felt able to dispose of the matter on the papers.

By a decision at the end of October 2025, the FtT judge refused the defendant council's application for a review and refused its application for permission to appeal. He also ended the suspension of the Attendance Provision.

Between the original substantive decision made by the FtT on 21 July 2025 and the subsequent decision to end the suspension of the Attendance Provision, the defendant did issue a revised EHC plan.

The claimant said this happened on 19 August 2025. However, that plan did not include the Attendance Provision.

Once it became apparent that the council was still refusing to amend the EHC plan so as to include the Attendance Provision, despite the FtT judge ending its suspension, the claimant threatened judicial review proceedings.

At about the same time, the defendant was applying to the UT for permission to appeal the FtT decision insofar as it imposed the Attendance Provision.

The issues raised by the claimant were outlined by the judge as follows:

“(1) whether the refusal of the defendant to issue an amended version of [the claimant’s] EHC plan was unlawful and

“(2) if so, whether this court should grant relief. More specifically, the claim raises the question of whether a local authority is entitled to disregard an order of the First-tier Tribunal to amend an EHC plan in circumstances where the FtT has declined (pending an appeal against its decision) to suspend its effect and where there is also an extant appeal and an application before the Upper Tribunal ("UT") to suspend the FtT's order.”

The judge added: “A further issue arose the day before the hearing of this claim. When the claimant first brought these proceedings, the defendant's refusal to issue the amended EHC plan was described as an ongoing one. However, the day before the hearing, the defendant issued the amended EHC plan to the claimant.

“The defendant has contended that this renders this claim academic. The claimant disagrees; he says that the defendant's refusal still operated for a period of six months, causing him significant prejudice, while recognising that this may lead the court towards declarative rather than mandatory relief.”

Judge Barry Clarke concluded that on balance, the claim was now academic.

He said: “It is true that the claimant was deprived for six months of the benefit of the Attendance Provision through the defendant's refusal to implement it. That is far from being a trivial issue. But, with effect from the day before the hearing, he has the practical relief the court could give him.”

However, the judge considered it appropriate to exercise his discretion to decide the claim.

He said: “I say this for four reasons. First, there is something about a dispute of this kind that is self-extinguishing. It disappears the moment the UT rules upon the application to suspend, whichever way it rules. If such claims are never heard because events have moved on by the time they reach a hearing, the question can never be answered at all.

“Second, notwithstanding its belated implementation of the Attendance Provision, the defendant maintains that its conduct has been lawful throughout. That is an important assertion which should still be tested.

“Third, the issues raised in the claim have general application. They may affect every local authority which appeals to the UT and which could use the mechanism for renewing an application to suspend as a reason for delay, affecting children and young persons in whose favour an order has been made. This is a substantial public interest point.

“Fourth, the parties are before me, permission has been granted, the claim has been fully prepared and argued, and the objection was not taken until the day before the hearing.”

Considering the claim, Judge Barry Clarke applied the general principle that a court or tribunal order must be obeyed unless and until it is set aside or varied. He referred to the authorities of Majera and Ashworth, including the principle that even where there may be grounds for challenging an order, a party cannot simply decide not to comply with it.

Meanwhile, he rejected Southampton’s submission that implementing the Attendance Provision would undermine its appeal or render its suspension application pointless.

The judge held that the defendant had a right to seek suspension, not a right to obtain it, and that implementation did not prevent the Upper Tribunal from later granting relief or deciding the appeal.

Concluding that the council acted unlawfully between 29 October 2025 and 28 April 2026 in failing to secure the special educational provision which the First-tier Tribunal had ordered, “contrary to regulation 44(1) of the SEND Regulations”, Judge Barry Clarke summarised his judgment as follows:

“By refusing for six months to implement the Attendance Provision of the claimant's amended EHC plan as ordered by the FtT, on the ground that it had an undetermined application to the UT for suspension, the defendant acted unlawfully. […] The defendant neither amended the plan nor secured in practice the Attendance Provision which the FtT had ordered the amended plan to specify.

“[…] The defendant's actions cannot be justified by the pendency of an application to the UT. Section 11 of the 2007 Act confers a right of appeal with no suspensory effect, and the FtT Rules give the FtT a discretionary power to suspend which would be effectively meaningless if the act of appealing or renewing the application to the UT achieved the same result. CPR 52.16 reflects the same principle in ordinary civil litigation.

“The defendant's rights in this position were protected by rule 5(3)(l) of the FtT Rules and rule 5(3)(m) of the UT Rules. What the defendant could not do was to confer upon itself, by the act of appealing to the UT or by renewing its application for suspension to the UT, the very relief which those rules commit to the judgment of specialist tribunals.

“The defendant's argument that its right of appeal is rendered ineffective proceeds on the false premise that its right to apply for the discretionary relief of suspension is a right to obtain it. The UT's power to suspend survives implementation of the disputed provision, as Ashworth at paragraph 46 and Essex at paragraphs 37 to 39 confirm, so that compliance would not render the pending application nugatory.”

Judge Barry Clarke continued: “The suggestion that this court's ruling has arrogated the UT's function inverts the position. The court decides only whether, in the absence of a suspension, the authority has complied with a duty enforceable nowhere else. It is the contrary conclusion which would usurp the specialist role of the tribunals: it would confer a de facto suspension which neither tribunal has granted, and it would allow the defendant to confer a suspension upon itself by the mere fact of appealing or renewing its application.”

As the Attendance Provision had now been incorporated into the operative EHC plan, the judge found no mandatory order was required.

The successful Claimant was represented by Ollie Persey and Abby Buttle of Garden Court Chambers’ Education Law Team. They were instructed by Chris Barnett of Sinclairs Law, who was assisted by Sasee Logasuriyan.

Lottie Winson