Parent did not have right to be accompanied by solicitor at additional learning provision review meeting, Court of Appeal rules

The Court of Appeal has rejected a mother’s claim that a local authority’s refusal to allow a solicitor to attend an individual development plan (IDP) review meeting in relation to her son’s additional learning provision was unlawful.

In AY, R (On the Application Of) v Vale of Glamorgan County Borough County [2025] EWCA Civ 671 (22 May 2025), Lord Justice Lewis concluded that under the Additional Learning Needs and Education Tribunal (Wales) Act 2018, there is no statutory entitlement for a parent to be accompanied by a solicitor of the parent's choosing at an IDP review meeting, and that the arrangements for the conduct of a review, including who should attend the meeting, are “matters for decision by the local authority”.

The case concerned AY, a child with additional learning needs.

Outlining the background, Lewis LJ noted that an educational tribunal determined that the appropriate school for AY was the ASD Resource Base at a school in Wales (the Base). An updated IDP was provided specifying the school, and describing the additional learning provision to be provided for AY.

 The IDP said that AY required small class sizes. AY began attending at the Base.

AY wished to attend some mainstream classes and the school agreed. However, AY's mother did not agree as the mainstream classes would not be small classes.

Attempts to resolve the disagreement were unsuccessful. AY, through his mother as his litigation friend, brought a claim for judicial review contending that the respondent local authority was in breach of its duty under section 14(10) of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 ("the Act") to secure the additional learning provision set out in the IDP.

The council began the task of reviewing the IDP. It wished to arrange a meeting attended by representatives of the authority, staff from the school, educational professionals, and AY's mother and father.

AY's mother wished the solicitor who was conducting the judicial review proceedings in which she was the litigation friend for AY, to attend the meeting. The council refused.

AY (acting through his mother as litigation friend) applied to amend the claim form to contend that the refusal to allow the solicitor to attend the review meeting was unlawful.

Permission to apply for judicial review was granted by Lewison LJ on the following two grounds:

• Ground 1. Parents of children with additional learning needs have a right under the Act and the Code to be accompanied by an advocate of their own choosing at an IDP review (or that it was ultra vires for the respondent to refuse to allow them to be so accompanied);
• Ground 2. Alternatively, if the respondent had a discretion, its refusal to allow the parents to be accompanied by their chosen advocate in the present case was Wednesbury

In his reasons, Lewison LJ said that the claim raised an “important issue” about whether a parent is entitled to be accompanied by a solicitor or other advocate when attending a review meeting. He ordered that the claim be heard in the Court of Appeal, as the matter had already been considered in the High Court.

Considering the appeal, Lewis LJ said: “The grounds of appeal concern two matters. Ground 1 concerns an issue of interpretation, namely whether the Act, or the Code, confers a right for a parent to be accompanied by a solicitor of their choice at a meeting held as part of a review of an IDP. The second concerns the issue of whether, on the particular facts of this case, the particular decision taken by the respondent in March 2024 not to allow the solicitor instructed by AY's mother to attend was irrational or unreasonable in the sense that those terms are used in public law.”

He continued: “One underlying issue is whether the dispute is now academic between the parties. In one sense, the dispute between AY and the respondent is academic as there is not any current, live issue between the parties to the judicial review. The process of review of the IDP has been completed and the IDP was subject to an appeal which was resolved by a consent order. AY is now going to attend a different school not the school named in the IDP that was in place at the time that the judicial review claim was issued. To that extent, matters have moved on even since Lewison LJ granted permission.”

Lewis LJ considered that in relation to ground 1, it was “not necessary” to reach a final decision on whether the issue was academic, as it concerned the interpretation of the Act and the Code.

However, he added: “The position in relation to ground 2 is different. There is no doubt that there is no live issue between the parties in relation to ground 2. The particular decision that the mother could not be accompanied at a particular review meeting by a solicitor is no longer a live issue.

“[…] Given the intensely fact-specific nature of this aspect of the appeal, it is unlikely that any decision we reached would be of real practical assistance in future cases. In my judgment, therefore, it is neither necessary nor appropriate to consider ground 2.”

On ground 1, counsel for AY submitted that section 6 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 Act “recognises the importance of the child and the child's parents participating as fully as possible in the exercise of functions”.

Further, counsel for AY submitted that a meeting considering a review of an IDP was part of the arrangements for avoiding disagreements made under section 68 of the Act. As such, it was recognised that advocacy services would need to be provided by the local education authority under section 69 of the Act.

It was argued that whilst that did not extend to paying for a solicitor instructed by a parent, there was no basis for considering that there was any power on the part of the respondent to prevent a parent from being accompanied by a solicitor of their choosing and at their expense.

Counsel for the local authority on the other hand submitted that there was no right for a parent to be accompanied by a solicitor at a review meeting.

It was argued that section 6 of the Act imposed a duty on the LA to have regard to the need to provide information and support necessary for the parent and child to participate fully. So long as the respondent has had regard to that matter, it was for the decision-maker to determine what weight should be given to that factor and other factors.

Section 6 of the Act imposes a duty to involve and support children, their parents and young people. It provides that:

"A person exercising functions under this Part in relation to a child or young person must have regard—

(a) to the views, wishes and feelings of the child and the child's parent or the young person,

(b) to the importance of the child and the child's parent or the young person participating as fully as possible in decisions relating to the exercise of the function concerned, and

(c) to the importance of the child and the child's parent or the young person being provided with the information and support necessary to enable participation in those decisions."

Discussing the case, Lewis LJ said: “Chapter 2 of Part 2 of the Act deals with IDPs. Section 23 of the Act imposes a duty on a local authority (or in some cases the governing body) to review an IDP annually. The carrying out of that duty involves the exercise of a function under Part 2 of the Act. As such section 6 of the Act applies to that function, i.e. the function of reviewing an IDP.

“[…] On a natural reading of section 23 and section 6, the duty on the local authority is to carry out an annual review. In deciding how to carry out the process of review, it has to have regard to certain factors, including the importance of enabling children and their parents to participate fully. The language used in section 6 of the Act is consistent with such factors being mandatory considerations, that is, considerations which a local authority must take into account when deciding how to exercise its functions. Section 6 does not confer a right or entitlement to have a legal representative attend a meeting taking place as part of a review.”

He stated that the local authority must also have regard to the guidance contained in the Code, including the guidance that reviews should include a meeting, and that the authority should consider whether there are measures which it could take which would “better facilitate” the participation of the child and their parent in the meeting. He noted however that those provisions of the Code “do not confer a right to have a solicitor attend a review meeting”.

He continued: “In the light of all those considerations, the local authority will determine how to exercise its function of carrying out a review, including how to support children and their parents in participating, and who should be invited to attend any meeting (or meetings) that are held as part of the review process.

“[…] Against that background, there is no statutory entitlement under the Act, or the Code, for the parent to be accompanied by a solicitor (or other lawyer) of the parent's choosing. The arrangements for the conduct of the review, including who should attend a meeting held as part of the review, are matters for decision by the local authority. But, in exercising that discretion, and in reaching its decisions on how the review, and any meeting forming part of that review, should be conducted, it must have regard to the factors in section 6, any relevant guidance in the Code and any other relevant factors.”

Lewis LJ dismissed the case on ground 1.

Concluding the case, he said: “I would dismiss this claim for judicial review. In relation to ground 1, neither the Act nor the Code confer a right for a parent to be accompanied by a solicitor of their choosing at a meeting forming part of the process of a review of an IDP under section 23 of the Act. I would not exercise my discretion to consider ground 2, whether the decision in this particular case not to allow AY's mother to be accompanied by a solicitor of her choosing was irrational or unreasonable. As that ground of claim has not succeeded, the claim will be dismissed on that ground also.”

Lord Justice Phillips and Lord Justice Newey agreed.

Lottie Winson