In this guide we will look at how to appeal against Section I of an EHC plan. Section I appeals are generally needed when the local authority (LA) have named a placement that you or a young person disagree with or the LA have only named a type of school. Whilst it is possible to appeal this section on it’s own, we would advise that you also include sections B & F in any appeal so that the EHC plan can be considered by the Tribunal in it’s entirety. For further information on appealing these sections (B&F) please look at our other page Appealing the Contents of an EHCP.
There are certain criteria the LA need to consider before being able to name a placement in section I of the EHC plan such as the type of placement, the expense and whether it can meet the child or young person’s needs. Sometimes an appeal may be needed despite the LA considering all the criteria and further discussion will not change the final decision (for example when there are no suitable placements available and all considerations have been exhausted). At other times, you may have to appeal where the criteria has not been considered lawfully.
Finding suitable placements is particularly difficult at the moment and this is largely because many are already full, or feel that they cannot meet needs. Parents are struggling to even get a visit to schools and so cannot always find out if a school would be suitable. ‘Being full’ is not a reason accepted by Tribunal for the LA not to name a placement (but could be argued on the ‘efficient education of others’ criteria). Regardless, a lack of availability or reluctance to accept children or young people is making appeals more complex.
Due to the increasing unsuitability of available placements, many parents are looking for alternative provision, especially whilst waiting for the Tribunal hearing. This has its own complexities, so despite the information and advice contained in this guide, you may find you still need to contact us directly to chat your situation through with a SENDIAS Adviser.
Before deciding to appeal you may find it helpful to read our Choosing a New School (with an EHCP) guide which explains how a request for a setting should be considered by the LA.
When can I appeal section I?
There are generally 2 occasions when you might consider an appeal against Section I.
1) After an EHC needs assessment has taken place and a final EHC plan has been issued
a) You do not agree with the setting that has been named
b) You do not agree with the type of setting that has been named
2) After an Annual Review or Reassessment.
a) The LA have refused to make changes (to section I)
b) The LA have made amendments to the EHC plan and you disagree with what has been written.
Mediation
Unlike appealing other sections such as B&F, if you are only appealing Section I, you do not have to consider mediation and therefore do not need to obtain a mediation certificate. However, if you feel it could be helpful you are still entitled to request a mediation meeting. You 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.
If you do decide to go to Mediation, this can be done instead of or before going to appeal. It generally takes place quicker than a tribunal hearing (usually within 30 days of the request vs 20 + weeks for appeals) 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).
Whether Mediation is successful when solely about placement, is unclear. As the decision making process used by the LA often involves a panel due to the potential costs involved, the LA representative at the mediation meeting will often be reluctant to make these financial decisions on their own.
However, where mediation can be particularly beneficial is where a conversation is needed with the help of a trained and impartial person, to understand why the decisions have been made the way they have, the various options available and opportunity to address your concerns.
If going down the mediation route, be specific in what your concerns are 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. Be open to alternative suggestions (especially in light of the length of time appeals are taking)
It is still possible that the local authority will refuse to amend section I, but you will have a better understanding of the reasons why. You may decide that the alternative option is acceptable, or you may exercise your right to continue to appeal.
Going to Appeal
If you are appealing section I you can choose to go straight to appeal without the need to contact Global Mediation. Your appeal documentation will need to reach the SEND Tribunal within 2 months of the date of the LA’s letter that accompanied the Final / Amended Final EHC plan or the decision letter not to amend.
You will need to complete a SEND35 form and send this to the SEND Tribunal (either by email or by post) with the evidence and other documentation required.
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. This will almost certainly affect the Section I part of the appeal.
If you feel that the EHC plan as it stands, does not fully reflect the need for the placement or placement type you are seeking, then include B&F in your appeal. (See our other page about appealing the other sections of the EHC plan). PS: Don’t forget you must consider mediation if appealing any other section than just Section I.
Writing your Appeal
How to complete the majority of the form is explained in Appeals against the Contents. Here we will look specifically at the section which addresses placement – section 2 of the form.
The first part of this section is about the decision you are appealing about. You need to place one tick in the appropriate box before the ‘and‘ and one tick in the appropriate box after (see highlighted choices).
The second part of this section is also straight forward. This is where you tell the Tribunal which school you wanted the LA to name instead (including it’s address).
The second to last box is asking for confirmation that you have contacted the school you prefer. You need to put the date that you contacted them specifically asking for a space for your child or young person so attend. You also need to include any response that you received (for example ‘we are not able to meet needs’, ‘we are full’, etc). Also state here if the school didn’t respond to your request.
The last box only needs to be completed if you are not able to name a particular school (for example if you cannot find one that can meet all the needs set out in the EHC plan). Here you can describe the type of school you would prefer.
What information and evidence to use
Find out what information to give to the Tribunal in your appeal and what evidence to use to support it:
What do I need to tell the Tribunal?
In a section I appeal, there are generally 1 of 2 arguments you will use and the information and evidence you give will differ slightly depending on which one is being argued.
- You do not agree that the placement named in the EHC plan is able to meet all the needs set out in the EHC plan (but your preference can)
- Both the named placement and your preference are able to meet all the needs set out in the EHC plan but you have another reason for wanting a different placement.
Most appeals are brought to Tribunal based on the first argument. The Tribunal will not generally consider which placement is the best or more suitable but will consider whether the needs can be met whilst taking into account the pressure on the public purse – the ‘efficient use of resources’.
The Tribunal will not know any of the settings that are being discussed, only what you or the LA tell them in the evidence or at the hearing. It is therefore important to be clear about the school and the reasons for or against the placement.
The cost of provision can also be important (especially in the second argument). Tribunal have to consider the effect of their decision on the LA’s resources. It can help to provide as much information as you can about what costs the LA will face if they name the school you have asked for.
Argument number 1 will be about proving that the named school cannot meet all the needs in the EHC plan (even with reasonable adjustments) and your preference can (and so you are requesting that the LA should name your preference). You will therefore need to show the Tribunal that the named school would not be suitable and that specific needs or provision within the EHC plan would be missed if your child or young person were to be placed there.
- Use Ofsted reports, school prospectus, emails from head teacher / Senco and existing knowledge if your child or young person is already attending (as in the case of Annual Reviews).
- Costs shouldn’t really be part of this argument as it is more about evidencing that the named placement is not suitable as it cannot meet needs. However, sometimes it can be a useful piece of evidence to include, especially if the Tribunal do not consider your other evidence enough.
Argument number 2 really comes down to the ‘efficient education’ and ‘efficient use of resources’ criteria. You will need to show that your preference can meet all the stated needs AND with no substantial increase to cost (the public purse) AND that attendance wouldn’t be detrimental to their- or other’s education . Therefore you will need to show:
- Any difference in the provision costs between the 2 placements that the LA will be expected to pay. You will need to include transport costs and any provision included within the school fees and those that would require extra (for example if a therapy was required but one of the placements do not have a therapist on site).
- You should also include any costs relating to health & social care provision written in the EHC plan (especially if one placement provides it within their day to day provision).
- The specific reasons you want another placement named.
Sources of evidence
You need to make it is as clear and as factual as possible so that the tribunal can clearly see why you are asking for a specific placement or placement type (and also why you do not agree that the named placement / type is suitable to meet your child or young person’s needs). It is likely that you will need to find additional evidence to support you with this.
If an EHC needs assessment or reassessment has been done recently then a lot of the information may already be contained in all the documentation used during this. Likewise, the documentation submitted after the Annual Review Meeting may also contain a lot of the relevant information you will need.
If you have not been able to obtain information from the placement itself or you think the school/ college / local authority etc still has other evidence that you have not seen, then you can request a copy of any data held about your child. This is through what is generally known as a SAR (Subject Access Request). Depending on the age of the child, they may need to give their permission in writing for you to pursue this. You may be charged for photocopying so you could request to see the records first and then choose which ones to have photocopied.
The following may help when looking at what evidence you have or will need.
The final EHC plan itself (most important if section I only appeal)
Much of the evidence will come directly from the EHC plan itself, especially section F – provision. In looking at whether a school is suitable, the LA must place in a setting (and therefore name the placement) that can meet all the needs written in the EHC plan. You may therefore need to go through all the provision in section F to show why the named school is not suitable / your preference is.
If you feel that the EHCP is not fully reflective of your child or young person’s needs, then consider appealing sections B & F as well as I.
Medical reports by a paediatrician, therapist or psychologist etc
Whilst it is unlikely that health professionals will know the type of education a child requires, they should be able to advise within their expertise, on the different needs and therefore the provision required. It would then be down to the LA (and yourself) to determine which placement would be most suitable for those needs to be met.
Again it will be important that all relevant information is included within the EHCP. If it isn’t then you can request this to be included as part of your appeal (under sections B&F)
Documents provided by the current (or former) placement.
These will be relevant especially where the current placement states they can no longer meet need, even with reasonable adjustments. Evidence that will be helpful for your appeal would be the learning support plan; notes from meetings; your child, young person’s or staff views; notifications of exclusions, detentions or issues.
Annual Review Paperwork
If you are appealing after an Annual Review, you may find some of the supporting evidence used for the Annual Review helps your case, especially if the current school agrees that they cannot meet your child or young person’s needs and have made all the reasonable adjustments they can.
Ofsted Inspections
It is often worth looking at the report from the latest Ofsted inspection as it will have highlighted any particular issues with SEN provision (good or bad). It should also give an explanation of any particular SEN they support, the number of children in the school / classes and so on.
You may be able to use this to show that the school is or isn’t suitable.
How to use your evidence
Use as much of the EHC plan you can if it supports your argument. As it is a legal document, the LA have already agreed to what is in there (even if has been taken from a report).
If you are needing to reference information from a report that is not in the EHCP, consider making the inclusion of this report part of your appeal (for it to be included in sections B & F).
For such evidence as ILPs, Ofsted reports or emails it is good practice to refer to specific parts. Point them specifically to ‘page ** paragraph * of ** Report / Email / ILP 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 (use a reference number / letter for example).
Information the LA should tell the Tribunal
This section explains the kind of information the Tribunal will need from the LA. It may be helpful as you may be able to include some of this in your appeal (if you are able to get access). Taken from HM Courts & Tribunal’s SEND14
The local authority should tell the tribunal:
- which school it proposes for the child
- the type of school
- how many pupils the school has now
- how many pupils it can take
- how many children at the school have SEND
- how many children get support at the school for SEND
- class sizes
- teachers’ relevant qualifications and experience of SEND
- whether the school teaches the full National Curriculum
The local authority should also tell the tribunal about how the school would meet the needs of the child, for example:
- what support it proposes
- the size of class and teaching groups that the child would join
- how many adults will look after the child
- what curriculum and educational programmes the school will deliver
- what arrangements are in place for the parent and school to cooperate
The local authority should also tell the tribunal about how much the provision would cost.
A parent may want their child to be taught at:
- an academy
- a city technology college
- a school maintained by another authority
In these cases, the local authority should represent the views of the academy, school or college and other authority in its response.
Submitting the Appeal
Once you have completed the form, you need to send (either by email or through the post) the appeal form, along with the mediation certificate, the notification letter from the LA that accompanied your final /amended final EHCP and any evidence you have to support your case. Please only send copies of reports etc and keep the originals.
What do Tribunal do?
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.
Waiting for the hearing
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
Any documents you want included for the judge to consider at the hearing, should be produced before the ‘final evidence’ date so that it is in the Trial Bundle. You should not normally bring new evidence to the hearing, however in exceptional circumstances, SEND Tribunal will consider late evidence on the day of the hearing if you have already provided a copy to the local authority and can provide a good reason for the delay (for example you may have just received a professional report from an assessment).
Evidence provided to SEND Tribunal after the final evidence date will be returned to you. If you want to bring additional evidence on the day, you should bring 5 copies for the tribunal panel and other party and you will need to ask the clerk to ask the judge (or you will be asked to ask the judge yourself) for permission to have it included.
The same rule applies to the local authority.
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 type | Original Final EHC Plan |
| Underlined type/ | Amendments/deletions agreed by both parties |
| Bold type | Parents’ proposed amendments |
| Parents’ proposed deletions | |
| Italic type | LA’s proposed amendments |
| LA’s proposed deletion |
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.
After the appeal hearing
You should receive the decision and reasons by post within 10 working days of the appeal hearing. The decision is sent to the nominated contact as well as the local authority.
Once SEND Tribunal’s decision is issued, the local authority must carry out the order within a fixed period, beginning with that date. The school/college/institution should be amended in the EHC plan within 2 weeks. However, if you are also appealing the contents of an EHC Plan then this part should be amended within 5 weeks.
If after your appeal has been ‘heard,’ you feel there has been an error or have some other serious reason for thinking the decision by the SEND tribunal is wrong, you have 28 days to apply for a Tribunal review.
Further Information
IPSEA have produced a detailed Factsheet
SEND Code of Practice 2015 chapter 11