Judicial Review And EHCP Disputes: Why The FTT Remains The Right Route For Schools And Academies

A recent High Court decision inLW, R (On the Application Of) v London Borough of Islington [2025] has confirmed that judicial review is not a shortcut around the First-tier Tribunal (FTT) SEND appeal process, even where tribunal delays are significant. This matters for schools and academies receiving Letters Before Claim from families seeking to bypass the FTT. Here's what the case means for you and how to respond.

Background

This case concerned an application for judicial review brought on behalf of LW, a child, challenging the lawfulness of an Education, Health and Care Plan (EHCP) issued by the London Borough of Islington ('Islington'). 

The judgment is a clear reminder that judicial review will rarely be the correct starting point where the FTT SEND appeal process remains available. It also shows the high threshold a claimant must clear to persuade a court that their case falls within the exceptional category warranting judicial review, despite an alternative remedy being available.

For schools and academies, the case is a timely one. Families and their advisers are increasingly using the threat of judicial review not because it is the appropriate legal route, but because they want a faster answer than the tribunal system can currently provide.

The facts in LW, R v London Borough of Islington: Placement breakdown and a 40-page EHCP

LW was 14 years old with a complex profile of needs. Her special educational provision had for some years been delivered through an Education Otherwise Than In School ('EOTIS') package, underpinned by a substantial personal budget. Following a successful appeal to the FTT, New College Worcester ('NCW') was named at Section I of LW's EHCP from September 2022, with the full provision sought by her parents included within Section F. The placement broke down within weeks. NCW served notice to terminate, describing the plan as "very lengthy" and containing "provision in Section F which this College cannot provide”.

Islington then decided to conduct a statutory re-assessment of LW's needs. The final 40-page EHCP was issued on 6 August 2024, with no school placement named at Section I. LW's parents challenged the August 2024 EHCP by way of judicial review on three grounds: 

1. Unlawful re-assessment.
2. Failure to hold an annual review of the July 2022 plan.
3. Failure to consider expert reports and/or irrationality in preparing the plan.

Islington defended the claim on the basis that there was already an ongoing FTT appeal with a hearing listed for 10 December 2025, and that appeal provided an effective alternative remedy which precluded the need for judicial review.

What did the court decide?

The High Court refused permission and dismissed the claim on all three grounds. The central reason was that the claimant had an alternative remedy in the FTT, which the court considered the appropriate forum for examining and resolving complaints about the content of an EHCP.

What does this mean for schools and academies?

For schools and academies, this decision is a practical reminder of how the courts treat EHCP disputes. There are significant backlogs in the FTT, with some final hearings not listed until a year after registration, despite an intended 12-week timetable. The same applies to disability discrimination matters. It is therefore no surprise that parents look for swifter alternative routes, including judicial review.

However, the core message from this judgment is straightforward: where the FTT appeal route is open and has not been exhausted, the High Court will not step in. Judicial review is not a mechanism for bypassing a process that has become slow. 

The fact that the tribunal system is under pressure does not lower the threshold for obtaining permission to judicially review an EHCP decision. That threshold remains high, and this case is a clear example of the court holding the line.

What should you do if you receive a Letter Before Claim?

Schools and academies are increasingly receiving Letters Before Claim from families and their solicitors, often in place of, or ahead of, any engagement with the FTT appeal process. In practice, many of these letters raise issues that are not properly the subject of judicial review at all.

A common example is where a family alleges that a school is failing to implement the provision specified in a child's EHCP. In the vast majority of cases, this should be pursued as a disability discrimination claim before the FTT under the Equality Act 2010, rather than by way of judicial review. 

Similarly, disputes about whether the provision in a child's EHCP is appropriate, or whether the right school has been named, fall squarely within the FTT's appellate jurisdiction and should be resolved through that route.

The growing use of AI-generated pre-action correspondence

With AI-powered legal tools now more widely accessible, the cost and practical barriers to issuing pre-action correspondence have fallen considerably. Schools are therefore finding themselves on the receiving end of Letters Before Claim that raise issues falling within the FTT's jurisdiction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.