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This information is about appealing against a SEN decision in relation to an Education Health & Care Plan (EHCP). It covers the processes for appeal through mediation and the First-Tier Tribunal (SENDIST).
What can I appeal against?
The SEND Code of Practice says:
Parents (in relation to children from 0 to the end of compulsory schooling) and young people (over compulsory school age until they reach age 25) can appeal to the Tribunal about EHC needs assessments and EHC plans, following contact with a mediation adviser in most cases (see paragraph 11.18). Young people can register an appeal in their name but can also have their parents’ help and support if needed.SEND Code of Practice 2015, paragraph 11.44
Parents & Young People (16+) can appeal against:
- A decision by the Local Authority not to carry out an EHC Needs Assessment or re-assessment
- A decision by the Local Authority that it is not necessary to issue an EHC Plan following an EHC Needs Assessment
- The description of a child or young person’s Special Educational Needs (Section B) or Special Educational Provision (Section F) specified in the EHCP
- The school or other institution; type of school or other institution specified; or that no school or other institution is specified (section I) in the EHCP
- An amendment to these elements of the EHCP – B, F, I
- A decision by the Local Authority not to amend the EHC Plan following a review or re-assessment
- A decision by the Local Authority to cease to maintain an EHC Plan
If you are thinking of appealing against a: refusal to carry out an EHC needs assessment or re-assessment; refusal to issue an EHC Plan; the description of need/provision in the EHC Plan; the decision not to amend an EHC Plan; or the decision to cease to maintain an EHC Plan, you must firstly consider participating in mediation.
For appeals against school/setting placement (section I), you are not legally required to consider mediation and can lodge an appeal straight to the First-Tier Tribunal, should you wish to do so.
How do I appeal?
To lodge an appeal, you must first receive a copy of the final EHC Plan, along with a covering letter from the SEND Team that states your right of appeal. You have two months from the date of this letter sent from the Local Authority, or within one month of receiving the mediation certificate to lodge your appeal – whichever is later.
You can firstly consider whether there is value in arranging to meet with the Local Authority outside of the ‘formal’ mediation process to discuss your concerns and why you feel they may have made the wrong decision.
You can facilitate this meeting by contacting your assigned caseworker. Their contact details are included on any written communication you have received from the SEND team.
Appealing as a parent / young person
You can appeal as a parent if you have parental responsibility for the child, or if you are their foster parent/carer. The child must be under or of statutory school age (0-16). If your child is over statutory school age (16+), they may be able to lodge the appeal themselves.
If you are aged between 16-25 years old, you may be able to bring the appeal forward on your own behalf.
The Tribunal says:
A Young Person is aged 16 or over and under 25 years old.
It should always be presumed that a Young Person has the mental capacity to make an appeal to the Tribunal. An appeal made by a Young Person will often be with the support of an advocate. An advocate can be a parent, family member or other individual, including someone who is paid to do so. A Young Person can also appoint a representative to act on their behalf during the appeal process, including at the hearing.
If a Young Person cannot bring an appeal themselves – making an appeal as an Alternative Person?
If a Young Person does not have the mental capacity to bring an appeal and/or to make decisions about the appeal then it can be brought by an Alternative Person, acting in the best interest of the young person. This will be any Deputy appointed by the Court of Protection or if this has not happened, then usually, a young person’s parents. It could also be a family member or someone from the LA’s Social Care team. The Tribunal will still want to know what the Young Person’s views are on the issues in the appeal, but it is the views of the Alternative Person which they will consider in deciding the appeal. An Alternative Person can also appoint a representative during the appeal process including at the hearing if they wish to do so.SEND35 form
Considering / participating in mediation
Mediation is a voluntary process for parents and young people which can be used if agreements cannot be reached about matters related to EHC plans. It is provided by a trained and accredited mediator who is independent of the Local Authority. You have two months from the date of the decision letter sent from the Local Authority to request mediation or a mediation certificate.
As explained above, the appellant (parent/carer/young person) is legally required to consider mediation in the first instance when lodging an appeal about any matters other than issues regarding placement named/not named in section I of the EHC Plan.
You may feel that there is value in participating in mediation with the Local Authority about the matter which you are appealing against. Alternatively, you may feel that you have had many discussions (and possibly meetings) with the Local Authority about the issue you are
appealing against and feel that engaging in mediation would not give you the different outcome you wish for. It is your legal right to participate in mediation; equally, it is your legal right to decide not to participate in mediation.
If you are appealing against any valid reasons for appeal as above (apart from appealing against section I of the EHC Plan), you must contact Global Mediation on 0800 064 4488 to either arrange a mediation session with the Local Authority, or to obtain a mediation certificate to verify that you have considered mediation.
It is only once a mediation certificate has been obtained (either through participation or consideration) that an appeal can be lodged to the Tribunal, should the issue not be resolved through mediation. You have one month from the date of your mediation certificate to lodge an appeal to the SEND Tribunal.
Lodging an appeal to the Tribunal
The SEND Tribunal must receive the appeal within two months of the date on the letter from the local authority giving you their final decision. You must identify the decision appealed and give the date of the local authority letter giving you the decision.
If you are appealing against the Local Authority’s decision not to carry out an EHC Needs Assessment (refusal to assess), you need to download and fill in form SEND 35A. (NB: appeals relating to refusal to assess decisions will be decided through a paper hearing, meaning that the Tribunal’s decision will be given based on evidence provided, and an oral hearing will not be arranged unless specifically requested).
For all other appeals, you need to download and fill in form SEND35.
You must give the reasons for the appeal including the issues that you want the tribunal to decide. These are the ‘grounds of appeal’. The reasons don’t have to be lengthy or written in legal language, but need to say more than just, ‘I disagree ‘. Explain why you disagree with the decision and what you would like the SEND Tribunal to do. If you have information or evidence supporting the appeal, enclose it with the appeal.
The appeal can, however, be considered ‘on the papers’ if both parties agree. If you consider that your appeal is suitable for a paper hearing, where neither of the parties attend, then you can tick the box on the notice of appeal form. If both parties consent to a paper hearing, the
appeal will be placed for consideration by the first available panel after the final evidence date and your appeal may be decided sooner than if it goes to an oral hearing.
Here you will find the step-by-step processes for lodging an appeal to the Tribunal.
Please be aware that appeals are evidence-based, and there is a checklist on both forms for evidence that must be included with the forms.
For appeals relating to placement (Section I), you should also send in basic information about the schools you are appealing against & the school you are appealing for a place in; this should include their OFSTED reports and their prospectus’s, and what provision they can offer, if you have this information.
Something else to consider is checking your eligibility for legal aid. If you are eligible, you may be able to access legal support for your appeal.
What happens once I’ve sent the forms and evidence in?
After you send in your appeal, the SEND Tribunal will reply within 10 working days (working days do not include Saturdays, Sundays, bank holidays, any day between 25 December to 1 January, or any day in August) of registering your appeal.
In this registration letter, the SEND Tribunal will tell you about important dates. It will tell you when the LA are required to respond to your appeal, give you a deadline to send further evidence and tell you when the hearing date will be. (Please note: you will not be given the hearing time or venue until at least 10 working days before the hearing is due to take place. The Tribunal endeavours to always hold hearings within 2 hours of your postcode).
The hearing date will be approximately 12 weeks from the date your appeal was registered (remember, for refusal to assess appeals, there will be no physical hearing).
At the same time, the SEND Tribunal will write to the LA, sending them a copy of your appeal documents.
The LA will need to submit its response to the SEND Tribunal within 30 working days of receiving your appeal documents from the SEND Tribunal. The LA must state whether it opposes your appeal and why. The LA must send you a copy of its response at the same time: tell the SEND Tribunal if you are not sent this.
Ensure that any evidence you didn’t send in with your appeal form, or any new evidence, is sent to the SEND Tribunal by the deadline set. Always send a copy to the LA at the same time.
At least 10 working days before the hearing, the LA will send you and the SEND Tribunal the ‘bundle’, a page-numbered set of the documents the SEND Tribunal has been sent in the case. (Further reading at this link: What happens after I submit my appeal?)
You should also think about who you may like to be present at the hearing as your witness(es). These will generally be professionals who know your child and understand their needs well (e.g., Educational Psychologist, Speech & Language Therapist, Occupational Therapist, Physiotherapist, Psychiatrist, SENCo/teacher, Deputy Head/Headteacher etc). It’s best to let your witness(es) know the hearing date as soon as possible. You can have up to 3 witnesses but can request more if necessary – this decision will be at the discretion of the Tribunal.
What happens if the local authority doesn’t oppose my appeal?
This will depend on the issues in your appeal. If the local authority agrees to change the contents of the EHC Plan and you are satisfied with the outcome, you can withdraw the appeal or ask the tribunal to order the local authority to change the EHC Plan in the way you have agreed by making a consent order.
If the appeal is about a decision not to carry out an EHC Needs Assessment or reassessment, not to issue an EHC Plan, not to change the school named in an EHC Plan that is over one year old or to no longer maintain an EHC Plan, and the local authority does not oppose
it, the appeal will automatically come to an end. The local authority will have to do what they have agreed to do within a fixed time limit.
What is a telephone case management hearing?
Sometimes, if there is an issue that a party has raised that is not easily resolved ‘on the papers’, a registrar or tribunal judge will direct for a telephone case management hearing to be arranged. This is a hearing that takes place by means of a conference call where the tribunal judge, the local authority representative and you or your representative (or both of you) will be able to discuss the case over the phone. You will be provided with a telephone number and an explanation of what you should do to join the hearing. Telephone hearings usually last between 20 and 30 minutes, and the tribunal judge will either give you a decision immediately or reserve the decision. In all telephone hearings, the orders made will be confirmed in writing within a few days.