It is always very disappointing to receive a letter from your local authority refusing your application for an education, health and care needs assessment, an EHC plan, or to be offered an inadequate final EHCP. While you may want to take a day or two to decide what you do, there is a limited time to register a SEND appeal.
If you do not feel you can go through the appeal process yourself, we can help. We’ve also prepared some frequently asked questions to help you understand the SEND appeals process. Browse through them below or click one of the links below to go straight to the answer you need.
- What can be appealed?
- What is the appeal process?
- Can I appeal if I haven’t had a final EHC plan and the deadline has passed?
- Do I need to understand SEND law?
- How does the First-Tier SEND Tribunal work?
- Do I need to go to the hearing myself?
- Should my child go to the hearing?
- Remote hearings
- How do I get experts to give evidence?
- What are the chances that I will win my case?
What can be appealed?
If you disagree with a decision made by the local authority relating to your child’s special educational needs, you can appeal to the SEND Tribunal. This is an independent body called the First Tier Tribunal for Special Educational Needs and Disability (SEND).
You can appeal if your local authority:
- refuses to make an EHC assessment or reassessment;
- refuses to create an EHC plan after making an assessment or reassessment;
- refuses to change the sections of an existing EHC plan which are about education (sections B, F and I);
- decides your child does not need an EHC plan any more.
You can also appeal the finalised contents of the EHC plan your local authority has produced, or the placement it has named if you disagree with them.
From April 2018, parents and young people have also had the right to appeal against the health and social care sections of the plan (Sections C, D, G and H of the Plan) at the First Tier Tribunal as part of an ongoing national trial.
What is the appeal process?
The local authority must send you a covering letter with their decision. It must set out details of how the child’s parents or the young person themselves can appeal to the SEND Tribunal. This letter must also include details of mediation and disagreement resolution services available and, importantly, must clearly set out the steps and timescales to lodge an appeal with the SEND Tribunal.
The law says that before bringing an appeal to the SEND Tribunal, you must consider engaging in mediation with the local authority. This does not mean that mediation is compulsory, but it must be considered. You will need a certificate to prove you have done this. Details of the mediation service should be included in the covering letter sent by the local authority.
The only exception to this is if you are only appealing the placement named in the EHC plan.
Can I appeal if I haven’t had a final EHC plan and the deadline has passed?
The final EHC plan must be issued within a maximum of 20 weeks from the request for an EHC needs assessment. If the LA has not sent a draft EHC plan for you to consider within 14 weeks from the request for assessment, or you have not received your final plan within 20 weeks of the request, then you should make a complaint, in writing, to the LA’s Director of Children’s Services.
This is a service that we often take on for parents so their local authority is aware that they need to take their duties seriously. If you would like us to do this for you, it’s easy to get in touch. Just give us a call on 01452 555 116 or use our contact form.
Do I need to understand SEND law?
When you (or your child if they are over 16 years of age with mental capacity) appeal a local authority’s decision, you do so by taking it to a Special Educational Needs and Disability Tribunal. Tribunals are presided over by a judge and panel members with a specialist knowledge of SEND. They are designed to be parent-friendly.
You do not need to have a lawyer to go to the SEND Tribunal, and a lot of parents choose not to and manage to prepare their own documents and represent themselves on the day if needed. However, in order to be successful, you will need to understand the law that will be applied by the panel when making their decision. They can only apply their legal knowledge to the information that has been put forward.
This is why many parents turn to solicitors who are experts in this area of law to ensure that the necessary paperwork is prepared in a way that clearly identifies the key facts the Tribunal needs to understand in order to make their decision and to make sure that their child’s interests are represented at the Tribunal hearing.
How does the First-Tier SEND Tribunal work?
The Tribunal has the power to order a local authority to take certain action for example, making changes to the description of a child’s needs, amending the provision to be made available to the child and changing the school named in the child’s EHC Plan. The Tribunal can also order the LA to undertake an assessment, issue an EHC Plan or to continue to maintain a child’s EHC Plan.
If you wish to lodge an appeal with the Tribunal then you must submit the following:
- An appeal form which is available from the Government’s website;
- The decision letter that was sent to you from the local authority that you are appealing about. This letter should state that you have two months in which to appeal from the date of the letter;
- A mediation certificate. This is mandatory unless the dispute is simply about the naming of a school. You must appeal within one month of this certificate being issued, regardless of whether this falls outside the two months the local authority has given you, which means it can be used as a way of extending your application deadline if needed;
- The EHC plan and appendices if your appeal is in relation to the contents of the plan;
- Your Grounds of Appeal (which detail your reasons for appealing the Local Authority’s decision) including any evidence which supports your appeal.
The Tribunal service will send you a letter of registration once they have received your documents, usually within 10 days. This will also set out the date of the hearing and relevant deadlines for both yourself and the local authority, including:
- The deadline for the local authority’s response to the appeal;
- The deadline for the submission of the attendance form for both parties;
- The deadline for any further evidence from both parties.
The hearing will be heard by a judge and panel of specialist members, with experience of special educational needs. There are normally two to three people that make up the panel.
The LA has its own tribunal officers although it is often represented by a solicitor or a barrister. It will also be able to bring witnesses (as specified in their attendance forms). The parents and/or young person can also bring a legal representative or someone for support. They can also bring witnesses.
Throughout the hearing itself, the parents or young person can expect to be asked questions by the SEND Tribunal Panel, the local authority’s representative and your legal representative, if you’ve chosen to have one.
You should expect to receive a written decision regarding your case within 10 working days following the Tribunal hearing.
Do I need to attend the hearing myself?
You are not required to attend the SEND Tribunal hearing. However, you should give serious consideration to attending, as the panel will want to ask you relevant questions. Many parents feel daunted by the prospect of taking on everything that a Tribunal hearing involves. Most will not have gone through the SEND Tribunal process before and don’t always know what evidence they need to gather, or the legal arguments to raise at the hearing. In cases like this, we would advise contacting our Education Lawyers specialist solicitors to find out what support we can offer that may help you win your case.
Should my child attend the hearing?
Your child can attend the hearing if they want to express their views, but they aren’t expected to attend.
As a result of the coronavirus pandemic, the First Tier (SEND) Tribunal has introduced remote hearings. These are conducted over the internet on a secure line. These have generally been very successful. We can still represent you at a remote hearing. We will discuss more about this method with you when you instruct us, including what to do if you do not have a reliable internet connection or device.
How do I get experts to give evidence?
A witness is someone that you feel can help support your case at the tribunal by giving spoken evidence about your child’s special educational needs and the provision they require. This would normally be a professional involved with your child. You are allowed three witnesses, although a fourth witness is sometimes allowed.
If a witness is attending on behalf of the local authority, it doesn’t mean that they might not still be helpful to your case. Our lawyers are experts at asking the right questions from these witnesses to ensure a balanced view of the situation is given.
If you feel someone who is not already attending on behalf of the local authority would strengthen your case, you can ask them to be your witness. Some potential witnesses may have reservations, especially if they are employed by the school or local authority. If this is the case, or if they refuse, you can complete a request for change form stating why you would like them to attend. They may then be issued a summons to attend.
We recommend that any independent experts that you instruct to write reports about your child, also attend the Tribunal as a witness. It can be very helpful to have them available to answer questions.
What are the chances that I will win my case?
We have particular expertise in assisting parents through the SEND Tribunal appeal process and have a very high success rate in the SEND Tribunal. A significant number of our cases settle, in favour of the parents, before a hearing takes place and we enter into negotiations on our clients behalf at an early stage if we feel agreement may be possible.