Judicial Review Risk in EHCP Refusal Decisions
What the recent Upper Tribunal and Administrative Court decisions tell SEN teams about where refusal reasoning fails.
Elizabeth Okinda Consult | Insight Note
Why this matters now
Few areas of local authority practice generate as much avoidable litigation as decisions on Education, Health and Care needs assessments. The statutory test is short. The duty is clear. Yet refusal decisions continue to be conceded on appeal, set aside by the Upper Tribunal, or judicially reviewed for reasons that are largely structural rather than evidential.
In 2024/25, the Ministry of Justice recorded 25,000 registered SEN appeals. Twenty-four per cent challenged a refusal to secure an EHC needs assessment. Concession rates within individual authorities run as high as 86 per cent. These are not edge-case statistics. They describe the working environment of every SEN team in the country.
Four recent decisions, three from the Upper Tribunal and one from the Administrative Court, give a useful map of where refusal and EHCP reasoning tends to fail. The law has not changed. What the cases expose are the operational habits that create legal vulnerability.
The statutory test, in plain terms
Section 36(8) of the Children and Families Act 2014 engages the duty to assess where the authority is of the opinion that:
- the child or young person has, or may have, special educational needs; and
- it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.
Two features of the test are routinely underweighted. First, both limbs are conditional. The statute uses "may have" and "may be necessary". This is a deliberately low threshold. The authority is not deciding whether the child needs a plan. It is deciding whether assessment is required to find out.
Second, the test is exhaustive. Any internal criterion, threshold matrix, or panel gateway that raises the bar above section 36(8) is unlawful, however reasonable it may seem to a resource-stretched team.
Where a refusal is challenged, the route is to the First-tier Tribunal under section 51, with onward appeal on a point of law to the Upper Tribunal. Where the failure is procedural, systemic, or concerns delay, judicial review in the Administrative Court remains available.
Case 1: Template reasoning under judicial review
R (W) v Hertfordshire County Council [2023] EWHC 3138 (Admin)
David Lock KC, sitting as a Deputy High Court Judge, found that Hertfordshire had acted unlawfully in failing to complete a finalised EHC plan within the statutory 20-week period. The judge declined to determine the wider systemic challenge but his observations on the authority's decision-making process were uncompromising.
Two findings stand out. First, on the refusal letter itself, the judge observed that the authority appeared to use a standard template into which case-specific details were inserted. The letter listed documents considered, but did not directly engage with the statutory question of whether W "may" have SEN. It did not show that the section 36(8) test had been applied.
Second, the judge took notice of the authority's own appeal statistics. In 2021/22, Hertfordshire conceded 79 of 91 appeals, an 86 per cent concession rate. Of the cases that proceeded to a hearing, the First-tier Tribunal ordered assessment in all but one. The judge did not need to make findings on individual decisions to draw the obvious inference: the refusal process was producing decisions the authority itself did not stand behind.
Operational lesson: the refusal letter is the decision
Template letters are a litigation risk multiplier. They look efficient. They scale well. They also strip out the case-specific reasoning that demonstrates the statutory test has been applied. A refusal letter that lists evidence but does not explain why, on that evidence, the authority is not of the opinion that the child may have SEN, is structurally vulnerable, regardless of whether the underlying decision was correct. Concession rates also matter. A team that concedes the overwhelming majority of appeals is telling a future court that its initial decisions are unreliable.
Case 2: Reasoning failures in EHCP content
Mrs & Mr D v Cheshire East Council [2025] UKUT 187 (AAC)
G was a seven-year-old with a diagnosis of autism. The parents appealed Sections B, F and I of his EHCP. The authority had been barred from participating in the First-tier Tribunal hearing for non-compliance with directions. The Tribunal nonetheless decided the Section F wording in terms that the parents considered inadequate, particularly on 1:1 support and Speech and Language Therapy.
On appeal, Upper Tribunal Judge S Davies found the First-tier Tribunal had erred in law. Its reasoning was "lacking". It had failed to adequately specify the level of 1:1 support required and had not addressed the disputed SLT provision at all.
The error was one of reasoning, not outcome. The Upper Tribunal did not say the level of provision was wrong. It said the Tribunal had not done the work of evaluating the evidence and explaining its conclusions. Where there is a genuine dispute about quantified provision, that dispute must be visibly resolved on the face of the decision.
"The panel considered the evidence and concluded the threshold is not met" is not reasoning. It is conclusion without analysis.
Case 3: "Brevity is not the problem. Opacity is."
MB v Hertfordshire County Council [2026] UKUT 86 (AAC)
Upper Tribunal Judge Citron considered the Section F content of an EHCP for an 18-year-old with Hertfordshire. The First-tier Tribunal had refused to include seven proposed provisions, among them a Duke of Edinburgh scheme, a drama group, volunteering activities, gym sessions and membership, a therapeutic gardening course, and a travel-training programme.
Judge Citron found the Tribunal had erred in failing to explain adequately why each had been refused. As he put it, the error was "that I have found it impossible to derive adequately explained answers to the questions asked by the legislative code." Because a replacement plan had been issued by the time of the Upper Tribunal hearing, the decision was not set aside, but the judge confirmed it would stand as guidance for future appeals on similar issues.
Judge Citron set out four questions the Tribunal had to answer in respect of each proposed provision:
- Whether it was educational or training provision.
- Whether it was additional to, or different from, provision made generally for others of the same age.
- Whether it was called for by the special educational needs in Section B.
- Whether it was required by the young person.
All four had to be answered in the positive.
Operational read-across to refusal decisions
A decision-maker who reaches a conclusion on a disputed issue must show, on the face of the decision, how each piece of relevant evidence has been weighed against the statutory question. A refusal letter that lists evidence and asserts a conclusion is not enough. The reader must be able to see, from the letter alone, why the evidence does not support the opinion that the child may have SEN or may need provision through an EHC plan.
Case 4: The "nexus" test for Section F provision
East Riding of Yorkshire Council v Bowers [2026] UKUT 31 (AAC)
In a separate decision, Upper Tribunal Judge Citron set aside a First-tier Tribunal decision that had ordered the inclusion in Section F of golf coaching, golf practice, a gym programme with personal trainer oversight, and golf club membership. The young person was 18 and had a severe language disorder.
The judge found the decision did not explain how or why those activities addressed her language disability or her developmental gap. There was, in his analysis, no necessary nexus between the special educational needs in Section B and the provision ordered in Section F. He stopped short of saying gym or golf could never be special educational provision. The error was, again, in the reasoning, not categorically in the outcome.
Why local authorities should care
The "nexus" point cuts both ways. When a local authority refuses to include provision, or refuses to assess, it must be able to articulate how the evidence does or does not connect to the statutory question. "No nexus shown" is not a magic phrase. The decision-maker has to demonstrate the analysis.
Case 5: Declarations for delay even where the assessment is done
BZP and BZQ v Warwickshire County Council [2026] UKUT 113 (AAC)
Judge Jacobs in the Upper Tribunal granted a declaration that Warwickshire had acted unlawfully in failing to complete an EHC needs assessment within the statutory timescale, despite the assessment having been completed by the time of the hearing. The authority had argued that the claim was academic. The Upper Tribunal disagreed.
The case confirms what the Administrative Court had already indicated in W v Hertfordshire: late completion of statutory steps is not cured by eventual compliance. Where statutory deadlines are missed, declaratory relief remains available, and the fact that the assessment is now in train will not automatically defeat a claim.
Operational lesson: "we got there in the end" is not a defence
Internal practice that treats statutory deadlines as targets, with a tolerance for slippage where workload demands, is now visibly out of step with the case law. The 6-week decision deadline, the 16-week assessment deadline, and the 20-week finalisation deadline are hard-edged statutory duties. Missing them is independently unlawful.
Where refusal reasoning fails
Drawing together the recent decisions, five recurring errors generate appeal and judicial review risk.
- Applying the wrong test. Treating section 36(8) as if it asked whether the child needs a plan, rather than whether assessment may be necessary. Panels frequently apply an internal "high need" threshold drawn from local guidance, not the statute.
- Treating existing support as a substitute for assessment. SEN Support, Early Years Inclusion Funding, and pastoral interventions are not the answer to the section 36(8) question. They are precisely what an assessment exists to test.
- Demanding evidence the statute does not require. Refusals routinely turn on the absence of an educational psychology report or a formal diagnosis. The statute requires neither.
- Conclusion without analysis. Template letters that list evidence and assert a refusal without engaging with the specific case are the single biggest source of legal vulnerability.
- Treating the panel discussion as the reasoned decision. If the panel's reasoning does not make it into the decision letter, the legally relevant decision is the letter, not the meeting.
Scenario: a borderline refusal
A borough SEN team is reviewing a refusal recommendation for A, aged eight, with a working diagnosis of ADHD, school reports describing severe attention difficulties and emerging literacy concerns, and a parent who has requested an EHC needs assessment. SEN Support is in place. Progress is variable. The panel recommends refusal on the basis that SEN Support has not been exhausted.
Three questions test the decision before the letter is signed off.
First, on the evidence, does A may have SEN? Almost certainly yes. The diagnosis, school reports, and literacy concerns engage the first limb of section 36(8). The presence of SEN Support does not displace that conclusion.
Second, may it be necessary for provision to be made through an EHC plan? "SEN Support has not been exhausted" is not, by itself, an answer. If there is a realistic possibility that SEN Support will be insufficient, the second limb is engaged.
Third, would the decision letter, read alone, show the Tribunal that both limbs have been considered and reasoned through? If it would not, the decision is structurally vulnerable, regardless of whether the substantive conclusion is right.
On these facts, the safer outcome is to assess. The cost of assessment is finite. The cost of conceding the appeal, plus the delay to the child, is rarely smaller.
Where litigation risk concentrates
- Template refusal letters. The W v Hertfordshire pattern. They look thorough. They are evidentially empty.
- Internal thresholds above section 36(8). Whether the threshold lives in a panel matrix, a policy document, or a team culture, it is unlawful and will not survive contact with the Tribunal.
- Statutory deadline breach. BZP v Warwickshire and W v Hertfordshire confirm that JR and declaratory relief remain available where deadlines are missed, even where the underlying assessment is eventually completed.
- High concession rates. A concession rate above 50 per cent suggests refusal practice is out of step with the statute. A figure above 80 per cent is itself evidence in any future systemic challenge.
Five things to change on Monday
- Write to the statute, not the template. Every refusal letter should track section 36(8). Limb one. Limb two. An explicit conclusion on each, with the evidence engaged with on the specific facts of the case.
- Audit borderline refusals before they leave the building. A second pair of eyes, ideally legal, should review borderline decisions before issue.
- Remove internal thresholds. Where resource pressure has produced criteria above section 36(8), those criteria should go. They are a liability, not a control.
- Use concession data as a management tool. Concession rates are diagnostic. If the team concedes most of its refusals, the team is making the wrong decisions. The fix is upstream.
- Track statutory deadlines as hard duties. The 6, 16, and 20-week deadlines are not aspirational. BZP v Warwickshire confirms that breach is independently actionable.
Conclusion
The framework for EHC needs assessment decisions has not changed. What the recent case law makes visible is how thin much of the reasoning behind refusal decisions has become. Tribunals and the Administrative Court are increasingly willing to look behind the bureaucratic surface of a refusal letter and ask whether the statutory test has actually been applied.
The operational message is simple. The refusal letter is the decision. If it cannot show, on its own terms, that section 36(8) has been engaged, the decision is vulnerable. The fix is also operational. It lives in how decisions are written, reviewed, and signed off, not in any change to the law.
Cases Referenced
- R (W) v Hertfordshire County Council [2023] EWHC 3138 (Admin), David Lock KC, 8 December 2023.
- Mrs & Mr D v Cheshire East Council [2025] UKUT 187 (AAC), Upper Tribunal Judge S Davies.
- MB v Hertfordshire County Council [2026] UKUT 86 (AAC), Upper Tribunal Judge Citron, 16 March 2026.
- East Riding of Yorkshire Council v Bowers [2026] UKUT 31 (AAC), Upper Tribunal Judge Citron, 26 January 2026.
- BZP and BZQ v Warwickshire County Council [2026] UKUT 113 (AAC), Upper Tribunal Judge Jacobs, 9 March 2026.
This article is a consultancy insight note for educational and operational use. It is not legal advice on any specific case. For tailored advice on EHCP refusal practice, public law risk, or judicial review exposure, contact Elizabeth Okinda Consult.
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