DOL, R (on the application of) v Southampton City Council

A First-tier Tribunal order remains binding from the moment it is made, subject to the statutory period for implementation, unless it is actually varied, set aside or suspended. Under regulation 44 of the Special Educational Needs and Disability Regulations 2014, a local authority cannot treat a pending appeal or an undetermined application for suspension as extending or disapplying its duty to implement the order. The statutory right of appeal is not itself suspensive. A party cannot confer a de facto suspension by withholding compliance. The appropriate response to practical prejudice is to seek suspension and expedition. A claim may be determined after becoming academic where there is a substantial public-interest reason. Here, the authority’s six-month failure to implement an ordered EHC-plan provision was unlawful; a declaration was granted after later compliance.

The claimant, a young person with complex special educational needs, challenged Southampton City Council’s refusal to amend and implement his Education, Health and Care plan in accordance with an order of the First-tier Tribunal. The First-tier Tribunal had ordered the plan to be maintained and amended, and later ended an interim suspension of the relevant attendance provision. The Council nevertheless withheld implementation while seeking permission to appeal and a suspension from the Upper Tribunal. The Upper Tribunal later granted permission to appeal but refused suspension. The Council implemented the provision shortly before the judicial review hearing and argued that the claim was academic. The central issues were whether the pending appeal and suspension application excused non-compliance under the Special Educational Needs and Disability Regulations 2014, and what relief remained appropriate.

Decision

1. Academicity. Applying the test in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450, the claim was academic because no mandatory relief would now directly affect the parties’ rights and obligations. The court nevertheless exercised its discretion to decide the claim. The issue was self-extinguishing, the Council maintained that its conduct had been lawful, the question had general application, and the claim had been fully prepared and argued. The approach in R (L, M, P) v Devon County Council [2021] EWCA Civ 358 was relevant to that discretion.
2. Statutory scheme. Regulation 44 of the Special Educational Needs and Disability Regulations 2014 required the Council to take the action ordered by the First-tier Tribunal within the prescribed period. The exceptions were specific. Section 11 of the Tribunals, Courts and Enforcement Act 2007 conferred a right of appeal but did not suspend the decision. Suspension had to be granted under the applicable tribunal rules. A pending appeal or undetermined application did not extend or disapply the duty.
3. Rule of law. The principle in R (Majera) v Secretary of State for the Home Department [2022] AC 461 and R (H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 applied to tribunal orders. An order, even if thought defective or wrong, had to be obeyed unless and until varied, set aside or suspended.
4. Pending suspension application. A right to apply for discretionary suspension was not a right to obtain it. Compliance did not prevent the appeal continuing or make suspension nugatory. Essex County Council v FA [2019] UKUT 38 (AAC) confirmed that implementation did not remove the tribunal’s power to suspend. The Council had effectively granted itself a suspension by withholding compliance, which it could not lawfully do.
5. Outcome and relief. The Council acted unlawfully between 29 October 2025 and 28 April 2026 by failing to implement the Attendance Provision, contrary to regulation 44(1). As the provision had since been incorporated into the operative plan, no mandatory order was required. A declaration was granted that the Council had acted unlawfully during that six-month period.

This was a first-instance judicial review. The First-tier Tribunal ordered the EHC plan to be maintained and amended, and later ended a suspension of the relevant provision. The Upper Tribunal granted permission to appeal but refused suspension. The High Court determined the lawfulness of the Council’s subsequent non-compliance and granted a declaration.