End of term checklist for local authority SEND teams

With the end of term approaching, and with the Christmas holiday period just around the corner, many local authority SEND services will be looking forward to a break and time to enjoy the festivities. 

Local authority decision makers and Tribunal teams might consider the pre-Christmas wind-down as an opportunity to make ‘an end of term’ checklist. Not least as the first quarter of 2026 might see further, significant, changes in the SEND landscape – following recent policy changes including from the Autumn Budget, and the further delay to the Schools White Paper.

1. Has the authority reviewed its budget for the rest of 2025-26? 

The announcement of proposed changes to who will be responsible for SEND spending in future years was one of the key issues highlighted within the November Budget. The government has announced that from 2028-2029, central government will meet the full cost of SEND provision from departmental spending budgets moving the risk of spending from local councils. 

This may be a relief for local authorities in the medium/longer-term however it remains over two fiscal years away and the question does remain about how the historic deficits will be dealt with. Will the ‘slate’ be wiped clean as it were for historic over-spend or will local authorities be expected to pay down these debts over time?

It also presents the question of where this leaves the Delivering Better Value initiative which have had massive impact on certain localities and imposed stringent conditions on how they deliver SEND services. 

From a central government perspective, the proposal appears to move the deficit rather than directly address it, and the many root causes of these overspends including:

• Limited availability of maintained special school places which means the independent sector is often the only option; and
• The unavailability of state funded (i.e. NHS) therapy services in some areas which drives parents/Young People – and local authority alike to turn to the private sector.

Until these questions are answered, local authorities should remain alert to ensuring their local offer is adequately funded.

2. Has the authority secured representation for any First-tier Tribunal appeals that are listed for 2026?

Local authorities and their in-house legal teams will likely be aware of the landmark decision of the High Court in Julia Mazur & Others v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB), and which was handed down on 16 September 2025
 
This is a ruling that clarified the position on who is authorised to conduct litigation, with the High Court ruling that non-authorised individuals (like paralegals or trainee solicitors) cannot conduct litigation even when under the supervision of an authorised solicitor, but are limited to assisting an authorised person who is conducting the litigation.   

The judgment has already had a significant impact on many areas of the legal sector, and we anticipate it will continue to do so pending the outcome of the appeal due to be heard by the Court of Appeal in the first half of 2026.

The Legal Services Act 2007 defines litigation as including proceedings before the First-Tier Tribunal. The Mazur judgment therefore impacts on the conduct of SEND appeals before the First-tier Tribunal as only authorised individuals will be able to act as legal representatives. 

However, there is a significant distinction to be drawn between legal representatives and local authority Tribunal Officers who may act as a (non-legal) representative of their employer local authority. In SEND appeals, the ability for a local authority to be represented by a non-legal representative is permitted by Rule 11(1) of the 2008 HESC Rules which states that “A party may appoint a representative (whether a legal representative or not) to represent that party in the proceedings.”

In summary, following Mazur, whilst only authorised individuals (mainly solicitors, and barristers or CILEx lawyers who have the requisite extension to their registration to allow for the conduct of litigation) can conduct litigation, the Tribunal Procedure Rules continue to permit local authorities to be represented by other representatives namely local authority officers (Tribunal Officers, case managers etc). Similarly, a parent/young person can be represented by a non-legally qualified representative and we frequently see ‘SEND Advocates’ in Tribunal appeals. 

Local authority in-house legal teams may be advised to ensure that their lawyers have the sufficient authorisation to conduct litigation when handling SEND appeals, especially as the annual influx of ‘Phase Transfer’ appeals ramp up in the first half of 2026.Alternatively, they should ensure that their case is being presented in such appeals by a suitable (non-legal) representative such as a Tribunal Case Officer who is based within the local authority’s SEN/education department.

3. Has the authority considered the ‘Phase Transfer Deadlines’ and ensured that affected EHC Plans are being reviewed?

Finally, local authorities will recall that they are under a duty to review and reissue an EHC Plan for a pupil who is due to move from one phase of education to another at the end of the current academic year. Such ‘Phase Transfer’ reviews must be completed by no later than a specified deadline – irrespective of whether the usual 12 month annual review deadline would otherwise fall later. These deadlines are:

• 31 March (2026) the child or young person is moving from secondary school to a post-16 institution; or
• 15 February (2026) in any other case e.g. early years education to school; primary school to secondary school etc.

These phase transfer reviews must take place even if the child or young person is not actually moving setting i.e. because they are attending a school which covers primary and secondary or secondary and post-16 etc. 

At Bevan Brittan we will be following the progress of these developments closely as we move into the New Year.

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