Upper Tribunal SEND appeal success and note on pro bono work
DWL v Milton Keynes City Council [2026] UKUT 203 (AAC)
Emma recently had the privilege of appearing pro bono before the Upper Tribunal (Administrative Appeals Chamber) in a case concerning a child’s entitlement to an Education, Health and Care Plan (EHCP). The Tribunal allowed the appeal and, additionally, ordered the preparation of an EHCP, a result that matters a great deal to the child and her family given the child’s imminent secondary school transition.
Background
The case concerned a child, “E”, an 11-year-old with ADHD, Autism Spectrum Disorder (ASD) and a Pathological Demand Avoidance (PDA) profile, approaching secondary school transfer in September 2026. The Local Authority had refused to make an EHCP on the basis that E’s needs could be met from ordinarily available mainstream provision at a cost below £6,000. E’s mother appealed to the First-tier Tribunal (FtT), acting in person to prepare the papers.
The FtT dismissed the appeal on the papers in December 2025. The Upper Tribunal granted permission to appeal and expedited the case to ensure a decision before E’s secondary transfer.
The Upper Tribunal’s Decision
Upper Tribunal Judge Ward found that the FtT’s decision erred in law on three of the four grounds, not needing to consider the fourth.
First, the FtT had overlooked a material consideration: both the educational psychologist and the SENCO regarded significant elements of the recommended provision as outside ordinarily available provision, yet the FtT found those recommendations had been “fully implemented”, a finding the Local Authority itself did not seek to defend.
Second, the FtT failed to address E’s anticipated needs on transfer to secondary school, despite that transition being expressly raised and less than nine months away.
Third, a key updated letter from the SENCO, indicating she now considered an EHCP appropriate, was omitted from the FtT bundle. The tribunal pack had been issued by the Local Authority on the Friday before the Monday decision, leaving the appellant no realistic opportunity to flag the omission. The FtT’s unqualified reliance on the SENCO’s earlier, less supportive evidence rendered the hearing procedurally unfair.
Outcome
The Tribunal set aside the FtT’s decision.
Emma invited the Tribunal to remake the decision rather than to remit the case to the FtT. The Tribunal agreed that the question for it to answer was merely whether it was necessary that there should be an EHCP, citing Buckinghamshire v SJ at [28] (in particular the last two lines).
The Tribunal held that it was necessary that an EHCP be made in order to be reasonably confident that E would receive the special educational provision she requires and remade the decision so as to allow the appellant’s appeal against the LA’s decision refusing to make an EHCP for E.
A Note on Pro Bono
Emma was instructed through Advocate and this case is a reminder of how much pro bono representation can matter in SEND proceedings. Families navigating these appeals are often doing so alone, facing substantial bundles, complex legal arguments and significant time pressure.
Emma was also very glad to work again with the team at SEND Dynamic, who provide excellent support to families in this area and were instrumental in helping the parent in this appeal prepare the papers.
Emma Christie was ‘Highly Commended’ at this years Bar Pro Bono awards in the ‘Young Pro Bono Barrister of the year’ category.
Further information
For more information from the public-law team, contact clerks@36public.co.uk
Involving Emma Christie
