You may have heard recently that appeals to the SEND Tribunal are being severely delayed due to the increased number being received. At the time of writing this (Nov 2022), Face to Face Hearings are taking up to 50 weeks to be held, with no sign of this changing for the foreseeable future.
It is worth noting that paper only hearings like ‘refusal to assess’ appeals seem to be taking approximately 3 months at this time.
Our helpline is receiving an increasing number of calls from parents who are really struggling to decide how to move forward due to this delay especially where change of placement is wanted or needed because of their age.
Whilst this blog will not be able to help everyone, due to the complexities of each individual situation, we hope that it will offer some options that you may not have considered.
When can I Appeal?
You can only appeal to the SEND Tribunal where the LA have completed certain parts of the statutory process that open up your ‘right of appeal’ and you disagree with their decision.
The SEND Tribunal is responsible for handling appeals against local authority decisions regarding special educational needs, including a refusal to:
- assess a child or young person’s educational, health and care (EHC) needs
- reassess their EHC needs
- issue an EHC plan
- change what’s in a child or young person’s EHC plan
- maintain the EHC plan
What if I am waiting on decisions still?
You may be in the situation where the LA are still trying to obtain a school place or deciding whether to make amendments etc but you are aware that time is moving on with perhaps no resolution in sight. Whilst we would still encourage you to keep communicating with your Planning Coordinator (PC), if you are waiting on a decision in writing so that you can obtain your right of Appeal to the SEND Tribunal, we would advise you to obtain this as soon as possible (from your PC). This is the only way you can start the appeal and avoid the process taking even longer than the current 50 weeks. Please note: even if you start the appeal, it will be possible for negotiations to continue informally with the LA (your PC) and you can withdraw your appeal should an agreement be reached before the cut off date.
Whilst there are no easy remedies with appeals being so delayed, the following may provide some options to speeding up the appeal date or possible options to consider.
The SEND Tribunal are trying to prioritise those cases where there are time sensitive conditions such as:
Age Phase Transfers
These are transfers from one stage of education to another where a new school will be required. For example, from:
- Early years to school
- Infant to junior
- Primary to secondary
- Secondary to post 16 provision
If your child or young person already has an EHCP, then there are deadlines that the LA must meet for issuing an amended EHCP naming the new school or institution. This is 31st March for secondary school to post-16 placements and 15th February for all the others.
For an amended Final EHC plan to be issued, there should be an Annual Review (sometimes known as a Phase Transfer Review). It will be important in light of the delay in appeals being heard, that this review is done as early in the Autumn as possible.
It would be hoped that by having the review in good time, the amended EHC plan could then be issued earlier than the statutory cut off date to allow an appeal hearing to be held in good time.
Out of Education
This applies for those who are without an educational placement whilst the appeal is ongoing.
If your child is unable to attend school due to exclusion, mental health difficulties or other reasons, the local authority have a duty to provide a suitable alternative education. If your child is to be out of education for some time whilst the appeal is ongoing and the local authority are not offering any support you can ask them to enforce this right by writing a letter if formal discussion have not worked. You can find more information about this in Section 19 of the Education Act 1996.
How to request Tribunal make your appeal a priority
Whilst the Tribunal will do their best to identify any of these conditions it is helpful to them for you to make this as clear as possible.
If you have already submitted an appeal
If you have already submitted your appeal and are worried that decisions wont be made in time, please ensure the Tribunal are aware that your child or young person meets one or more of these conditions. You can make this request by submitting a Request for Change to bring the hearing date forward, setting out the reason(s) why the case is urgent and a priority. More details about the Request for Change will be in the Hearing Pack you received from the Tribunal.
If you are about to submit an appeal
If you are about to submit your appeal then please make it clear in your SEND35 / SEND 35a appeal form. Please also make it clear in the subject line of the email when you submit your form.
Whether your child or young person does or doesn’t meet the conditions above you may also want to consider these other options:
Tribunal hearings that are being requested to be considered on the papers only are being considered sooner than those that a require a live hearing. With a paper hearing you will not attend the Tribunal and a decision will be made by the Tribunal only on the papers within the Hearing Bundle. This would mean that you would not get chance to explain, expand or have time before the Judge and SEN expert. Proceeding with only a paper hearing needs to be considered very carefully. However, it is an option to consider.
Refusal to Assess hearings are usually done on paper only anyway, and therefore likely to take place earlier than other appeals because of this.
Mediation instead (if appeal not already submitted).
For all appeals (other than Section I – Placement only appeals) mediation must be considered . This does not mean you have to have a mediation meeting, but you do need to have considered it. A mediation certificate will be required (in West Sussex this would be obtained from ‘Global Mediation’) to evidence this before you can submit your appeal.
An advantage of mediation is that you can influence the final outcome in that you don’t have to accept any agreement that you are not happy with. The mediator does not make any rulings or decisions like at a tribunal but should try and help both parties reach an agreement. It can be helpful to sit down and discuss your concerns with the LA where a trained mediator facilitates this.
Mediation should be arranged within 30 days of you requesting it and therefore it may be possible to avoid appeal altogether if an agreement is reached during mediation. Usually if an agreement is made, the LA will adhere to this.
If you do have mediation but you are not happy with the outcome, then of course you can continue to appeal to the SEND Tribunal.
An informal meeting with the local authority
Even if you have requested mediation, or already submitted your appeal, you may be offered a meeting with the LA and the school to discuss your concerns around the decision (especially if it is a refusal to assess decision). Because school is also involved, this can often be a very helpful meeting where all views and concerns can be shared, understanding reached and a plan decided on.
Whilst we would encourage any discussions that help facilitate the sharing of concerns and ideas to move forward, these are NOT formal mediation meetings. This means there will be no trained mediator facilitating the meeting, and no mediation certificate sent to you afterwards so that you can appeal should you still wish to.
We have had several calls from parents thinking that they had attended a mediation meeting only to find that they had missed the deadline for submitting their appeal. (Thankfully the court was very understanding).
Remember mediation must be discussed with Global Mediation (in West Sussex) within 2 months of the formal decision by the LA (unless this is a placement only appeal). An appeal must then be submitted within 2 months of the letter or 1 month of the mediation certificate, whichever is the latter.
What do I do while waiting for an appeal
If despite the above, you are still having to wait for the appeal hearing, there are some things that you can do in the meantime. These can get a little complicated depending on your individual situation and these are only a selection of options mentioned here. Please contact SENDIAS if you feel you need to talk over your particular situation.
Keep talking to your Planning Coordinator
Whilst your PC may still not be able or willing to name another school, add a therapy to the EHCP etc without the appeal, it is important that they are made aware of any significant changes such as a new diagnosis, exclusions, part time timetables being suggested by the school and so on. They may be able to arrange someone from their team to look at what other support etc could be implemented whilst you wait.
Keep talking to the school or setting
If your child or young person is currently in a setting (and will not need to change due to an impending age phase transfer) then keep talking with the Senco and teacher(s) about support and notify them of any significant changes as well.
It is likely that your child or young person is on SEN support (or has an EHCP) and therefore there should already be regular reviews in place to discuss these changes.
You can continue to collect evidence that supports your appeal and submit this to tribunal before the cut off date.
Even if you feel that another school is required to meet needs, until the Tribunal rules differently, your child or young person will either need to attend the school named on the EHCP (or current school if awaiting an EHC needs assessment) or you will need to consider home educating.
You may want to talk this through with a SENDIAS adviser so do make contact with us.
Let the Tribunal (and SENAT’s Legal Team) know of any new evidence
As time goes on, you may find that you have additional evidence that may help your appeal. You will have received guidance on how to submit additional evidence in the hearing pack you received. Just be aware of any cut off dates as you will need to approach the judge directly if it is after this.
If as a result of the delay in the appeal hearing, your child or young person meets any of the conditions above for a priority hearing, then do get in touch with the Tribunal and ‘Request a Change’ for consideration of an earlier hearing date. You must let the SENAT legal team know as well that you are requesting this.
If you are not sure what your options are especially where a change of placement is involved then please do give us a call or email and we will help you navigate the various options for your situation.