Appeals against Content of an EHCP

When you receive your final, it is hopefully accurate and fully reflective of your child or young person’s aspirations, needs and provision. However, despite having worked with your planning coordinator on the draft, this may not always be the case. Unfortunately, there are only certain sections that can be appealed. These are namely the educational sections – B, F (Needs and Provision) and I (placement). There is occasion to ‘appeal’ health & social care elements too but only if also appealing educational sections. you can find out more about appeals and mediation on our other pages under our main heading for ‘Appeals

On this page we will be explaining how to appeal about sections B & F, but if you are also appealing Section I (placement) then you may find it helpful to read this alongside the specific ‘Appeals against Placement (Section I)’ page. For more general information about appeals and mediation please see our other webpages.

Whilst SENAT are the team responsible for any decisions relating to EHCPs, appeals themselves are made against the local authority (LA).  It is important to fully understand how and why the local authority reached their decisions before you appeal. We advise sharing any questions or concerns you have with your Planning Co-Ordinator (PC) in SENAT, as you may find that once the reasons are understood, you may change your mind about appealing.

Occasionally however, you may just simply disagree, and no amount of conversation is going to change the outcome. It is in these cases that appeal to the SEND tribunal may be the only option left.

When can I appeal sections B&F?

There are generally 2 occasions when you might consider an appeal against the content of the EHC plan, namely Sections B & F (but also C&G, D&H and I).

1) After an EHC needs assessment has taken place and a final EHC plan has been issued

a)  You do not agree with what or the way it has been written, and/or

b)  There is information missing that you believe should be included

2) After an Annual Review or Reassessment.

a) The LA have refused to make changes
b) LA have made amendments to the EHC plan and you disagree with what or the way it has been written.

Do I need to appeal both sections?

As each need (section B) should have a provision (section F) and vice versa it is extremely unlikely you would appeal one section without the other. Please check our website for more detailed information about what EHC plans should contain.

Mediation

Before appealing Sections B&F you must have considered mediation. You will need to contact Global Mediation to discuss this within 2 months from the date on the letter from the LA refusing to amend the EHC plan or accompanying the Final or Amended Final.  

Mediation can be done instead of / or prior to going to appeal. It generally takes place quicker than a tribunal hearing (usually within 30 days of the request vs 12+ weeks) and will often be held nearer your home. It is facilitated by a trained mediator who is impartial and able to ensure that both voices are heard (yours and the LA’s). Mediation can be particularly effective and/or beneficial where:

1. Additional Information

You have some additional information or a new report you would like the LA to consider, that was not available before the Final / Amended Final was issued or the decision was made not to amend. (It is still possible that your PC will accept new evidence without having to go to mediation).

2. Information has been omitted

The local authority has omitted to include information provided during assessment or annual review

3. You do not agree with the information provided

the local authority has included information provided during assessment or annual review that you do not agree with

4. Further assessment is needed

You believe further assessment is required to determine accurate needs (section B) and therefore appropriate provision (section F)

In short, mediation is an opportunity to find out why the LA do not want to accept your proposed changes and is a safe place where you’ll have the opportunity to explain and discuss your reasons why you feel they are necessary for your child.

Be specific in what you are asking for and why, and back up these reasons by pointing to evidence where possible (see under ‘creating your appeal’ for ideas of supporting evidence). Provide copies of existing reports with highlighted sections to help you explain or clearly reference where you want the LA representative to look and why.

It is possible that following mediation, the local authority will agree to amend the plan or arrange further assessment, therefore avoiding the need to appeal. However, once mediation is complete you may still decide to go to appeal. 

Going to Appeal

If you decide not to do mediation or mediation did not solve the disagreement, then before submitting your appeal, you will need to have received the mediation certificate from Global Mediaiton.

If you didnt go to mediation, then you will need to have contacted Global Medaition within 2 months from the date of the LA’s decision letter not to amend or accompnaying the Final / Amended Final EHC plan. If you have already had mediation, then they will issue a certificate soon after.

You have 2 months from the date of the LA’s letter or one month from the date of the mediation certificate, whichever is the later.

Creating your Appeal

Whilst all the sections of an EHC Plan are important (please see our webpages for more information about what an EHC plan should contain), it is particularly important that sections B and F accurately reflect your child/young person’s Special Educational Needs and Provision, including any related health or care provision which educates or trains your child.

Your appeal needs to explain and evidence reasons why you believe it is necessary for the special educational needs and provision to be amended in the EHC plan.

You want to help make it is as easy as possible for the tribunal to understand your points and find the corresponding evidence to support these. Think carefully about the evidence you can use to support your points.

Evidence may be in the form of:

  • Medical reports or assessments by a paediatrician, therapist or psychologist etc
  • Documents provided by the nursery / school / college. For example, a learning support plan, notes from a meeting, emails about repeated incidents etc
  • Your child or young person’s views

If your child has recently had an EHC needs assessment or a re-assessment, then most of your evidence will be from the documentation gathered and used as part of this. You can start by looking at the professional reports and cross-reference these with the EHC plan to see if there are any gaps or inaccuracies. You can find out more about this in our webpage guides on how to check your draft EHC plan.

If you are appealing after an Annual Review, you may need to find some of the supporting evidence above, yourself, although the majority of it should have been submitted as part of the Review.

If you have not been able to attain these from the school or you think the school has other evidence that you have not seen, then you can request a copy of any data the school holds about your child (their school record as well as other data). This is through what is generally known as a SAR (Subject Access Request). You may be charged for photocopying so you could request to see the records first and then choose which ones to have photocopied.

How to use the evidence

It is good practice to refer to specific parts of your evidence for the different points you are making. Rather than directing tribunal to the EP report, point them specifically to ‘page ** paragraph * of EP report dated **/**/**’.

It is helpful to underline the specific paragraph or section you refer to and it is better to underline than highlight. (Highlighting doesn’t always photocopy well). If you are underlining more than one section for different points, then make sure it is clear which refers to which.

Completing the Appeal Form

Please click on our Completing the appeal form SEND 35 guide for step by step guidance.

Image of the Guide: Completing Appeal from SEND 35.
Dos and Donts

Do:

  • Keep your reasons short and to the point
  • Separate your points into paragraphs or use bullet points
  • If using paragraphs, number them or organize them under headings
  • Refer to any evidence that back up your points
  • Always look at and refer to the reasons the LA give in their letter or further emails.
  • Make a copy of the form before sending
  • Email to this address – send@Justice.gov.uk (not the address on the form).
  • If posting (rather than emailing) only send photocopies and send Recorded Delivery.

Don’t:

Get bogged down in history (If there is a lot of history between yourself and the LA, let the evidence speak for itself)

What happens next?

Once the SEND Tribunal has received the appeal, they should notify you within approx. 10-14 working days telling you that it has been received and that everything is in order (or they will tell you what is missing/incorrect). You will receive a tribunal pack which will include your individual reference for any further correspondence as well as any advice on how to make changes, submit extra evidence etc. It will also include all the important dates including:

  • The date of SEND Tribunal hearing.
  • When the LA is required to respond to your appeal (usually within 30 days),
  • The deadline for letting them know who will be attending with you
  • The deadline for sending any further information

At the same time, the SEND Tribunal also sends a copy of your appeal to the LA. The LA should respond to the tribunal, stating whether they oppose your appeal (disagree) and why, or that they agree with the evidence and will therefore make the changes. They must also send you a copy of its response at the same time, so do notify the SEND Tribunal if you do not get this response by the date stated in the tribunal pack.

Submitting the Appeal

Once you have completed the form, you need to send (either by email or through the post) the form along with the mediation certificate, the Refusal to Assess notification letter from the LA and any evidence you have to support your case. Please only send copies of reports etc and keep the originals.

After you have submitted the appeal

Once you have submitted the form, certificate and evidence you will then have to wait a couple of weeks or so before you hear anything. Once Tribunal have looked at your submission, they will contact you (generally by email) and let you know if they are able to accept it.

Occasionally you may find that a crucial document is missing or something hasnt been completed on the form. This should be easily remedied and the appeal can then proceed.

If and once the appeal is accepted you will receive a Tribunal pack which gives you information about the appeal date, along with your unique reference number.

Attendees and witnesses

You will also receive a form from the tribunal asking you to notify them of anyone attending with you, as well as any witnesses you may be requesting. You can ask professionals to be your witness, (they may be able to provide a letter, report or witness statement rather than attend), which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment. If you ask them to attend the hearing and they decline your request, you can request a summons for them to attend – but before you do this be sure they intend to support your case!

Late Submissions

You will also receive a form from the tribunal asking you to notify them of anyone attending with you, as well as any witnesses you may be requesting. You can ask professionals to be your witness, (they may be able to provide a letter, report or witness statement rather than attend), which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment. If you ask them to attend the hearing and they decline your request, you can request a summons for them to attend – but before you do this be sure they intend to support your case!

Working Document

Where the contents are being considered between LA and parent / young person, the Tribunal will ask for a working document to be produced. This helps the Judge know what is left to consider by the time of the hearing. The working Document is basically the EHCP but amendments (requested and agreed are marked by use of formal ‘keys’). These can more easily show:

  • The changes to the wording of an education, health and care plan, that each side wants or can agree
  • any issues that the tribunal must decide at the hearing
Normal typeOriginal Final EHC Plan
Underlined type/strikethroughAmendments/deletions agreed by both parties
Bold typeParents’ proposed amendments
Bold strikethroughParents’ proposed deletions
Italic typeLA’s proposed amendments
Italic strikethroughLA’s proposed deletion
Image of ‘keys’ table for working document.

For more information about working documents please check our Working Documents Webpage.

Trial Bundle

At least 10 working days before your appeal is ‘heard’, the LA will send you the ‘trial bundle’. This will also be sent to the Tribunal. This is a page-numbered, set of the documents containing yours and the LA’s evidence as well as the required appeal form, certificate etc. This bundle is the same for all parties (Tribunal, LA and yourself). Take time to look through the bundle and acquaint yourself with where the different sections and documents are.

Further Resources:

  • Send37 is guidance from the SEND Tribunal about how to complete the form as well as other useful information about the appeal. –
  • Ipsea’s Get Support Pages for Appeals
  • SENDIAS leaflet – Lodging an appeal with Tribunal