When EHCP provision and disability discrimination collide

In MT v Governing Body of a School (SEN) [2026] UKUT 42 (AAC), Upper Tribunal Judge Stout allowed the parent’s appeal, set aside the First-tier Tribunal’s decision in full, and sent all of the parent’s claims back to a fresh tribunal. The case arose from a school’s decision to move a child from one site to another because of concerns about behaviour.

The judgment is important for several reasons. First, the Upper Tribunal held that the First-tier Tribunal did not admit the parent’s late evidence, and that this refusal was not, by itself, a material error of law. The real error lay in the Tribunal’s handling of the parent’s confidential medical evidence. In dealing with that material, the First-tier Tribunal failed to consider the rule 14 framework, which in some cases allows sensitive information to be withheld or its disclosure limited where fairness and proportionality require it. That error materially affected the fairness of the hearing. Judge Stout said: “Proportionality and the interests of justice are the key principles” ([50]).

The Upper Tribunal also held that the First-tier Tribunal failed properly to deal with medical evidence about the likely effect of the proposed move on the child, including stress, seizures, sleep disruption, travel, and sudden change. This mattered because the tribunal had concluded that the move was not even a minor detriment, without properly addressing evidence pointing the other way ([61]-[64]).

The judgment also makes an important point about the relationship between Equality Act claims and EHCP disputes. The First-tier Tribunal had wrongly treated provision issues that were, or could be, dealt with through an EHCP as falling outside the disability discrimination claim. The Upper Tribunal rejected that approach in clear terms: “There is no such jurisdictional divide” ([69]).

Judge Stout also repeated an important point from KTS v Governing Body of a Community Primary School [2024] UKUT 139 (AAC): in some cases, it may be reasonable for a school to “bridge a gap” where provision ought to have been made by the local authority under an EHCP ([67]).

The parent did not succeed on every point. On occupational therapy, the Upper Tribunal held that the First-tier Tribunal had misstated the law, but that this made no difference on the facts. On additional support staff, however, it held that the claim had been analysed on the wrong basis and should also have been considered under section 20(5) as a possible auxiliary aid or service.

Sean Kennedy is a Director and Co-Founder at Talem Law.

Anonymised summary only. Not legal advice.