Education Only Counts If a Child Can Access It: Why EHCP appeals do not pause a child’s right to suitable education
Accessibility is not achieved by removing a single visible barrier if the underlying exclusion remains - this is a well-understood principle in disability advocacy. Accessibility is not about appearances - if something is labelled “accessible” but still cannot be used by the person it is meant for, the barrier has not been removed - it has simply been reframed.
The same principle applies in SEND.
Too often, education is described as “available” because it exists on paper, or because a school place has been named - even where a child cannot physically or psychologically access it. If the barrier remains, access has not been achieved.
And this is where EHCP appeals come in.
Families are often told that if an EHCP is poor, unsuitable, or simply doesn’t reflect their child’s needs, they should appeal - and that advice is absolutely right. The problem is that it is rarely followed by an answer to the next, entirely reasonable question:
What are families supposed to do in the meantime?
Because the uncomfortable truth is that the vast majority of EHCPs are poor. They are vague, under-specified, and frequently name placements that are not suitable or realistically accessible to the child. Appeals are no longer a niche response - they are now built into the system.
But EHCP appeals routinely take 12 months or more to conclude - and during that year, children’s needs still exist - and they’re still entitled to a suitable education - even if they are unable to attend school.
Appealing does not mean forfeiting protection
The first key point to understand is this: appealing an EHCP does not mean forfeiting legal protection.
One of the most damaging myths I encounter is the idea that once a family appeals an EHCP, they are somehow opting out of the current plan - or that the local authority’s duties are “on hold” until the appeal is resolved - this is simply not true.
While an EHCP remains in force, the local authority continues to have legal duties under it. Those duties do not disappear because a family has appealed - even where the plan is weak, poorly written, or clearly unsuitable.
For many families, the existing EHCP - flawed as it may be - is the only thing standing between their child and having no protection at all.
In practice, many families find themselves in the same position:
The EHCP has been issued
The plan names a mainstream school
The child cannot attend that school - often has not been able to for many months, sometimes years
The contents of the plan (including the setting) are not appropriate, so they appeal
And yet, the local authority and school take the position that their duty has been met because the provision is technically available at the named setting.
This is where things begin to unravel…
Families are told:
“We are legally required to follow the EHCP as it stands.”
“The provision is available at the school.”
“Whether your child can access it or not is irrelevant.”
“If you don’t agree, you can deregister and home educate.”
In more extreme cases, this escalates into threats of attendance enforcement.
This approach fundamentally misunderstands the law.
Provision only counts if it is genuinely accessible to the child.
The second key point is this: Provision only counts if it is genuinely accessible to the child.
One of the most common - and damaging - misunderstandings in SEND law is the idea that an “offer on the table” is the same as a meaningful offer.
Education that a child cannot physically or psychologically access is not available to them in any real sense. Repeating that the provision exists, or that a school place has been named, does not change the reality that the child cannot step through the door to receive it.
In law, provision must be secured, not merely described.
It must be accessible, not just theoretically present.
Something that exists only on paper is not education - it is an administrative fiction.
Local authorities are not discharged of their duties simply because a setting is named in an EHCP. If a child is unable to attend school, that fact does not vanish because an appeal is ongoing, nor does it cancel out statutory responsibilities.
This position is grounded in law, not just advocacy
The third key point is that this is not just an advocacy position - it is firmly supported by the courts.
In LB v Surrey County Council [2022], the High Court made clear that the Section 19 duty under the Education Act 1996 is not a duty to attempt to provide education, but a duty to ensure that suitable education is available, possible, and accessible to the child. Provision that exists in theory, but which the child cannot access in reality, does not meet that standard.
In HXN v London Borough of Redbridge [2024], the Court reaffirmed that the duty under Section 42 of the Children and Families Act 2014 is absolute. There is no “best endeavours” defence. Staffing difficulties, practical barriers, or parental challenge do not excuse non-delivery. The Court was sharply critical of delay, drift, and attempts to shift responsibility away from the local authority.
More recently, in L v Hampshire County Council [2024], the High Court again confirmed that partial provision, delay, or repeated attempts that do not result in delivery are still breaches. The judgment is particularly clear about the harm caused by prolonged failure to secure suitable education - including the way this can entrench a child’s inability to return to school.
Across these cases, the message is consistent: education must be real, accessible, and delivered - not merely offered on paper.
So do not forget: Section 19 and Section 42 still matter - arguably even more so during an appeal.
This is why, in situations like these, I often advise families to submit a formal complaint to the local authority for:
breach of Section 19 of the Education Act 1996 (failure to arrange suitable education for a child unable to attend school), and
breach of Section 42 of the Children and Families Act 2014 (failure to secure the special educational provision in the EHCP).
These duties are not paused because an appeal is live.
They are not satisfied by repeatedly pointing to a school place a child cannot access - and they do not evaporate because a plan is poorly drafted.
Section 19 exists precisely to deal with situations where school attendance is not possible. Section 42 places a non-delegable, absolute duty on the local authority to secure provision in reality.
When the tone hardens
Unfortunately, it is often at this point - when families assert these duties during an appeal - that the tone hardens.
Complaints are met with defensiveness.
Meetings become adversarial.
Threats of enforcement appear.
This is not because families are acting unreasonably, it is because this is the moment when the gap between compliance on paper and real-world failure becomes impossible to ignore. Pressure is often used to push families into backing down - to accept harm, or to deregister and reframe the situation as parental choice.
The escalation itself is often the clearest sign that a family is asking the right question. So when this happens, please know this: the law is firmly and squarely on your side. The more pushback you receive, the stronger the local authority likely believes your position to be.
Appealing a poor plan does not mean accepting a year without suitable education
It does not mean forfeiting statutory protection
And it does not require you to accept provision your child cannot access
Holding firm on the reality that your child is unable to attend school is not obstruction - it is the fundamental reality of the situation at hand. The law has repeatedly made clear just how important that reality is.
And very often, it is this reality - clearly evidenced and properly asserted - that gives a case the power it needs to start shifting long before it is ever heard at tribunal.
In the new year, I will be continuing to create and share resources to help families navigate these situations - not just those I work with directly, but any family trying to understand their rights and protect their child.
My aim is simple: to help ensure that every child has access to the education, provision and support they are legally entitled to - in a way that actually works, and is genuinely accessible to them.
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Everything I share is grounded in law, lived reality, and the belief that children should not have to break down in order to receive support.
