In a judgment handed down on 28 August 2026, the High Court declared that Southampton City Council (‘the Defendant’) acted unlawfully in refusing for six months to amend an Education, Health and Care Plan (‘EHCP’) to include provision ordered by the Special Educational Needs and Disability (SEND) Tribunal.
The Defendant had refused to comply with the SEND Tribunal’s order because it had applied to appeal the order to the Upper Tribunal and had applied for a suspension of the SEND Tribunal’s order. The High Court found that the Defendant’s approach was unlawful and had denied the Claimant special educational provision he was entitled to.
The case concerned DOL, a young person with autism, global developmental delay and learning difficulties, whose EHCP was maintained by the Defendant. The SEND Tribunal ordered the Defendant to amend DOL’s EHCP to include an “Attendance Provision” as part of an education otherwise than in college package. The Attendance Provision required DOL to attend five days each week at an institution that supported learning across six areas of skills development, with provision to be delivered on a 2:1 support basis.
The Defendant appealed to the Upper Tribunal and sought suspension of the order as it related to the Attendance Provision. The SEND Tribunal initially suspended the provision while considering the Defendant’s application but later refused permission to appeal and ended the suspension on 29 October 2025.
From that point, the High Court held the Defendant was required to implement the provision. Instead, it continued to refuse to amend and implement the EHCP pending its renewed application to the Upper Tribunal (see judgment at paragraphs 21 to 28). The Upper Tribunal refused the Defendant’s suspension application shortly before the final hearing in the Claimant’s claim for judicial review and the Defendant issued an amended EHCP the day before the hearing.
The High Court held that the claim should still be determined even though it had very recently become academic by the time of the hearing. The High Court identified a substantial public interest in resolving the point because similar disputes may otherwise be “self-extinguishing”: once the Upper Tribunal rules on suspension, the immediate issue disappears. The judgment also noted that the Defendant maintained that its conduct had been lawful and that the issue could affect local authorities and young people more widely: judgment at paragraphs 43 to 48.
The central question was whether a pending appeal and undetermined application to suspend a SEND Tribunal order relieved a local authority of its obligation to comply with that order within the statutory timescale. The High Court held that it did not. The SEND Tribunal’s order was binding from the moment it was made, subject only to the statutory implementation period and any actual suspension or variation: judgment at paragraphs 49 to 53.
The High Court gave two principal reasons. First, as a matter of statutory construction, regulation 44 of the Special Educational Needs and Disability Regulations 2014 sets out when a local authority must comply with a SEND Tribunal order and does not provide that an appeal or application to suspend has automatic suspensory effect. The rules of both the SEND Tribunal and Upper Tribunal provide mechanisms for suspension, but those mechanisms require an actual decision granting suspension: judgment at paragraphs 54 to 60.
Secondly, the common law requires orders of courts and tribunals to be obeyed unless and until they are set aside, varied or suspended, applying the principles in R (Majera) v Secretary of State for the Home Department and R (H) v Ashworth Special Hospital Authority: judgment at paragraphs 61 to 76.
The High Court rejected the Defendant’s submission that implementing the Attendance Provision would undermine its appeal or render its suspension application pointless. The High Court 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.
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.
Link to judgment: DOL, R (on the application of) v Southampton City Council [2026] EWHC 2255 (Admin)
