Background
DOL is a young person with autism, global developmental delay, learning difficulties and other complex special educational needs. After Southampton City Council decided to cease maintaining his Education, Health and Care plan, his mother appealed successfully to the First-tier Tribunal. On 21 July 2025, the Tribunal ordered the Council to maintain and amend the plan, including provision requiring DOL to attend an institution five days per week with two-to-one support as part of an education-other-than-in-college package.
The Council challenged that attendance provision and initially obtained a temporary suspension from the First-tier Tribunal. On 29 October 2025, however, the Tribunal refused permission to appeal and ended the suspension. The Council nevertheless declined to implement the provision while its applications for permission to appeal and suspension remained pending before the Upper Tribunal. After the Upper Tribunal granted permission to appeal but refused suspension, the Council incorporated and implemented the provision on 28 April 2026, one day before the judicial-review hearing.
The Court’s Holding
The High Court held that the Council acted unlawfully between 29 October 2025 and 28 April 2026. Regulation 44(1) of the Special Educational Needs and Disability Regulations 2014 required it to take the action ordered by the First-tier Tribunal. Neither an appeal nor an unresolved application to the Upper Tribunal for suspension displaced that obligation. The statutory scheme provided a discretionary mechanism for obtaining suspension, but merely applying for that relief did not confer it.
The Council’s conduct also violated the general rule that a court or tribunal order must be obeyed unless and until it is varied, set aside or suspended. Because the attendance provision had been implemented before the hearing, the claim had become academic and no mandatory order was necessary. The court nevertheless decided the issue in the public interest and declared the six-month period of noncompliance unlawful.
Key Takeaways
- A First-tier Tribunal order concerning an EHC plan remains binding during an appeal unless a tribunal actually suspends it.
- An application for suspension is only a request for discretionary relief and does not create an interim or automatic suspension.
- A court may grant declaratory relief concerning past noncompliance even after implementation has made mandatory relief unnecessary.
Why It Matters
The judgment prevents local authorities from effectively granting themselves a suspension by appealing or renewing an unsuccessful suspension application before the Upper Tribunal. When an EHC-plan order remains unsuspended, the authority must comply within the prescribed timetable and seek expedition if appellate proceedings are delayed.
The decision also confirms that the constitutional duty to obey judicial orders applies fully to specialist tribunals. Administrative delay or concern that interim implementation may later prove disruptive does not permit a public authority to disregard an operative order.