Appeals can be submitted to the SEND Tribunal against certain decisions made by the local authority (LA) in relation to a child’s or young person’s EHC needs assessment and EHC plan. Appeals are made to the SEND Tribunal against decisions the local authority have made. In West Sussex, this will be due to decisions made by SENAT (Special Educational Assessment Team) who represent the LA in issues with EHC needs assessment and EHC plans.
PLEASE NOTE: Where possible we include the most up to date information available. However, we are particularly aware that the SEND Tribunal have received an unprecedented number of appeals in recent weeks, which is especially impacting their hearing timescales. Therefore any timescales mentioned in this or our other appeal pages, may not be up to date as the situation continues to be reviewed. For further information about this and what to consider, please check our blog: Delays to Appeal Hearings – what can I do?
The role and function of the SEND Tribunal
As well as hearing appeals against EHC needs assessments and plans, the Tribunal also hears disability discrimination claims against schools and against local authorities when the local authority is the responsible body for a school.
The Tribunal seeks to ensure that the process of appealing is as user friendly as possible, and to avoid hearings that are overly legalistic or technical. It is the Tribunal’s aim to ensure that a parent or young person should not need to engage legal representation when appealing a decision. Parents and young people may find it helpful to have support from a voluntary organisation or friend at a hearing.
Who can appeal to the SEND Tribunal about EHC needs assessments and plans
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 * .
Young people can register an appeal in their name but can also have their parents’ help and support if needed.
*unless only section I is being appealed (in which case you can submit your appeal without)
Even if it was the school who applied for an EHCNA, it must be the parent or young person who appeals (although school may want to help you).
What decisions can parents or young people appeal about?
There are very specific stages and decisions made in the EHC Needs Assessment / EHC Plan process that give you a right to formally disagree and these are set out in Section 51(2) of the Children and Families Act 2014 (the law).
(a) Refusal to assess
a decision of a local authority not to carry out an EHC needs assessment for the child or young person -‘refusal to assess’
(b) Refusal to issue an EHC Plan
a decision by a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan
(c) Refusal to amend the Needs, Provision or Setting
(i) the child’s or young person’s special educational needs as specified in the plan;
(ii) the special educational provision specified in the plan;
(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;
(iv) if no school or other institution is named in the plan
(d) Refusal to Re-assess
a decision of a local authority not to secure a re-assessment of the needs of the child or young person following a request to do so
(e) Refusal to amend or replace EHCP (following a review or reassessment)
a decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment.
(f) Decision to Cease to Maintain
a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.
Please Note: The Tribunal does not hear appeals about Personal Budgets, but will hear appeals about the special educational provision to which a Personal Budget may apply
Conditions related to appeals
The following conditions apply:
- A mediation certificate will be required to submit an appeal to Tribunal (except for placement only appeals). This evidences that mediation was considered or held.
- Appeals must be registered with the Tribunal within two months of the local authority sending a notice* to the parent or young person of the decision or within one month of a certificate being issued, whichever is the later.
- The right to appeal a refusal of an EHC needs assessment will be triggered only where the local authority has not carried out an assessment in the previous six months
- When the parent or young person is appealing about a decision to cease to maintain the EHC plan the local authority has to maintain the plan until the Tribunal’s decision is made
* SENAT have certain timeframes to adhere to within the EHC needs assessment and Annual Review processes, and occasionally this means you will receive formal notification allowing you to appeal, even though you know your Planning Coordinator is still trying to sort some things out with you or other professionals. In these circumstances keep an eye on the date of the latest formal notification as it will be this that you will need to use to call Global Mediation with, should you end up needing to appeal.
This formal notification (either by letter or by email) should include the reasons why they have made the decision(s), along with telling you about your right to mediation, appeal and the option to contact SENDIAS for further advice if wanted (see the next drop down box below).
Decisions the Tribunal can make
The Tribunal has prescribed powers under the Children and Families Act 2014 to make certain decisions in relation to appeals. The Tribunal can:
- dismiss the appeal
- order the local authority to carry out an assessment
- to make and maintain an EHC plan
- to maintain a plan with amendments
- The Tribunal can also order the local authority to reconsider or correct a weakness in the plan, for example, where necessary information is missing.
Local authorities have time limits within which to comply with any decisions made by the Tribunal.
In making decisions about whether the special educational provision specified in the EHC plan is appropriate, the Tribunal should take into account the education and training outcomes specified in Section E of the EHC plan and whether the special educational provision will enable the child or young person to make progress towards their education and training outcomes. The Tribunal can consider whether the education and training outcomes specified are sufficiently ambitious for the child or young person.
When the Tribunal orders the local authority to reconsider the special educational provision in an EHC plan, the local authority should also review whether the outcomes remain appropriate.
What about Health & Social Care elements of the EHCP ?
If you are happy with the educational elements of the EHCP but disagree with the health and /or social care elements then an appeal on these alone will not be accepted. You can however, consider mediation instead.
If you are appealing educational elements of the EHCP then you can also include health & social care elements in your appeal.
However, the SEND Tribunal are only able to make non-binding recommendations on the health and social care aspects of EHC plans. Non-binding means that local authorities and clinical commissioning groups are not under a duty to accept the recommendations, but it is expected that they will.
These recommendations are made by a specialist Tribunal and the LA and health commissioners should not ignore or reject them without careful consideration. Any reasons for not following them must be explained in sufficient detail and set out in writing in the response to recommendation letters. If the recommendations are not followed, parents and young people can complain to the Local Government and Social Care Ombudsman or the Parliamentary and Health Service Ombudsman or seek to have the decision judicially reviewed.
Where health and social care issues are also being appealed, more witnesses are allowed to attend a hearing, and it may take two days instead of one.
How parents and young people can appeal
An Appeal form needs to be completed (SEND35a for refusal to assess and SEND 35 for all other appeals). There is a checklist on the appeal form explaining what needs to be submitted to the Tribunal (you can find out more about the form on our other pages). Your appeal will be rejected unless all the required paperwork has been received (and within the timeframes). When appealing to the Tribunal parents and young people must supply:
- a copy of the decision that they are appealing against and the date when the local authority’s decision was made
- The date of the mediation certificate (if required)
- The appeal form which sets out the reasons that the parent or young person appealing (the appellant). The reasons do not have to be lengthy or written in legal language but should explain why you disagree with the decision.
- All relevant evidence such as copies of assessments, reports, letters etc which help to support your reasons.
It is helpful to the Tribunal if this can be emailed (send@justice.gov.uk), but they will accept postal submissions if email is difficult for you.
What happens after submitting an appeal
Once the appeal is registered, you will receive an appeal pack giving you all the information you need for the process, including all relevant dates and deadlines, including the date(s) of the hearing. This is generally within 10 working days or so of Tribunal receiving your appeal. The location may not be arranged at this stage, but they will try and hold the hearings as close to where the parent or young person lives as possible*.
The pack will also include information about the Case Review Form and the Trial Bundle (see the seperate sections below on more information about both). The Trial Bundle is the LA’s responsibility so you do NOT have to take any notice of this (except the date, so that you know when you will receive it).
Appeals are heard by a judge and a panel of Tribunal members who have been appointed because of their knowledge and experience of children and young people with SEN or disabilities.
* Refusal to assess appeals are usually done ‘on papers’ meaning that decisions will be made by the judge on the paperwork alone. You can request a face to face hearing (which may be held virtually) but it is usually for the judge to decide. See more on the appealing against a Refusal To Assess page.
At the same time, the SEND Tribunal will write to the LA, sending them a copy of your appeal documents and will also give them the dates and deadlines for them to follow.
The LA’s Response
The LA first has to send its response to the SEND Tribunal by the deadline in the registration letter you receive. This response should state whether they oppose your appeal and why (e.g. if they do not agree with you and why). This is usually within 30 working days of receiving your appeal documents from the SEND Tribunal.
You should be copied into this response to the Tribunal by the deadline for the LA’s response, not by the later evidence deadline which has often been the case.
This initial response should include:
- All the information it considered and a copy of the reasons when making its decision including copies of (i.e not to do an EHC needs assessment, not to name a particular school, etc)
- a copy of the child/ young person’s attendance record at their educational placement for the last complete year
- details of the provision, progress and outcomes at SEN support as recorded in the child/ young person’s ILP/IEP or equivalent (if applicable)
- a signed and dated witness statement from a member of the leadership team or SENCo at the educational placement they currently attend addressing the issues raised in the appeal
- a short chronology of events which lead to the appeal (one side of A4 maximum)
- If an EHCP is already in place, then a copy of the last Annual Review documents.
- In addition, if the appeal is about placement (i.e. a request to amend section I) then: Confirmation of the name and type of educational placement that you have requested named in the EHC Plan and what law the LA applied in making its original decision. If exceptions apply to the law (i.e. the Children and Families Act 2014 s. 38) they also need to specify which of the exceptions under s. 39(4) they relied on in not naming your requested educational placement and the supporting evidence. for example – a. it is unsuitable, b. it would result in the inefficient education of other pupils or c. it would result in the inefficient use of resources.
For all educational placements proposed by you OR the LA, they will also need to include:
- The latest OFSTED report / Independent School Inspectorate report
- School/ College prospectus
- SEN Information Report
- The response received from the School/ College to the LA’s statutory consultation
The LA will also have other deadlines to adhere to which are all listed in the pack you received from the tribunal.
Tell the SEND Tribunal if any of the information the LA had to send you is missing or you do not receive it on time (i.e. by the deadline)
If the LA opposes the appeal
If the local authority opposes the appeal (disagrees), its response must say:
- Why it opposes the appeal
- The name and profession of its representative
- its address for sending documents to
- a summary of the facts about hte local authority’s decision
- Why the decision was made (if this is not in the decision itself)
- The child’s views (or the reason why the local authority has not got them)
If you want your child to be taught in a mianstream
If the LA requests to ‘Strike Out’ the appeal
If a local authority believes an appeal should not continue, it can ask the tribunal to ‘strike out’ the appeal. The local authority can apply at any time.
Most requests are on the grounds that:
- parents are asking for an order that the tribunal is not empowered to make
- the tribunal is being asked to reconsider an earlier decision where the circumstances are unchanged
The LA must make an application to strike out an appeal. The tribunal will send the parents a copy of the form so they can comment on it. The parents can ask to make their comments verbally. The tribunal will then allow both sides to explain their reasons for or against striking out the case at a hearing.
If the LA does not oppose the appeal
The tribunal will decide the appeal:
- based on the notice that the parents sent to the tribunal
- at a hearing where the local authority is not present
The tribunal will also decide the appeal this way if the local authority is barred from taking part in the proceedings. This can happen if the local authority does not send the response to the tribunal in time.
In some cases, the appeal may automatically be decided in favour of the parents. In those cases, the tribunal would not make an order.
If the appeal is about the contents of a child’s statement or EHC plan and the local authority does not oppose it, or decides later to withdraw its opposition, the local authority should write to the tribunal with any changes it has agreed to make to the statement or EHC plan.
Your child’s or young person’s views
For young people aged 16 and over, the appeal will be in their own name and therefore will generally be in their own words (even if that is done with the help and support of an adult).
However for those under 16 the appeal will be written and submitted by a parent carer or guardian. It is important that the local authority include the child’s views where possible. They must either:
- include a statement of the child’s own views or
- explain why this is not possible, for example if the child is too young
The local authority can include the statement in its response or in a separate document. Some local authorities use independent people to get the child’s views.
A local authority should also tell the tribunal at the hearing if it thinks the child’s presence at the hearing is likely to affect the presentation of any part of its case.
If the appeal is about a school
Where the appeal is about the school named in an EHC plan, there is specific information that the tribunal will want from both the parent carer(s) and the local authority. It will send the LA separate guidance about the information it needs but it is worth looking at yourself if you can.
You can find out more information about appealing schools in our Appeals against Placement page.
Witnesses and Attendees *
Tribunal now issue a Case Review Form instead of an Attendance form and must be completed and returned to the tribunal (with a copy sent to the LA, by the requested date.
It is likely that the local authority will offer more than one witness but should include:
- at least one person who knows the child well
- someone who knows the school that is being proposed
More information about witnesses can be found here.
Case Review Form*
Within your pack you will also receive a Case review form – SEND45 (which replaces the older attendance form) and a deadline to submit it to the Tribunal by. A copy must also be sent to the LA. This form is to enable the Tribunal to know what decisions are still left for them to consider (as often changes and decisions happen during the lifetime of the appeal – especially if you are having to wait several months). The form includes different sections and questions such as:
- what decisions are left for the Tribunal to make in your appeal? (leave out everything already agreed).
- In cases considering the contents of an EHC plan, is there a working document which sets out the changes proposed to the EHC plan and any agreement reached
- What the main outstanding issues are between the parties which are to be decided by the tribunal. For example – description of speech and language needs & specification of speech and language provision; specification of hours of 1:1 support required.
- In cases where the tribunal must decide the Educational Placement to be named in Section I.
- Is the child/young person currently attending school or college and if not, the date they left and what provision they are receiving now.
- The name and address of the school or post 16 institution requested by parents or young person and the one proposed by the LA (i.e. the one named in the EHCP).
- Evidence of an offer of a place if parent/ young person is requesting an independent school or college not approved under s.41 of the Children and Families Act 2014.
- Whether the appeal is ready to be decided by the tribunal at a final hearing?
- Whether there will be a representative, advocate or supporter attending
- Whether there will be any witnesses (and their details).
- Whether you consent to the the appeal being decided by a tribunal on the documents without taking part in an oral hearing?
- Any further information you think the tribunal needs to be aware of before the hearing
The Tribunal Bundle
Local authorities (not parents or the young person) in every EHC appeal must prepare a ‘tribunal bundle’. The bundle includes all the documents that are evidence in the appeal. All the evidence in the bundle must have already been sent to the other party and the tribunal.
The local authority cannot choose which evidence from the other party to include in the bundle or leave out.
The tribunal will tell the local authority what the deadline is for sending its bundle to the tribunal. If the local authority thinks it will need to send in evidence after this, it should contact the tribunal for advice. The local authority must bring 5 paper copies of any late evidence to the hearing that was not in the bundle.
The tribunal must get the bundle no later than midday on the date given in the case directions. This date will also appear under ‘key dates’ in the initial registration letter. If the local authority misses the deadline for delivering the bundle, it may be barred and will not be able to take any further part in the proceedings.
The bundle must contain:
- photocopies not originals
- one copy only of each document
- annotated or amended documents as well as the unchanged versions
- documents that are complete and legible, unless the state of the original prevents this
Every page in the bundle should be numbered at the top, including any blank pages. The bundle should have an index page at the front. For each document in the bundle, the index should list the:
- page number
- title of the document
- author of the document
- date it was written
If the pages of the bundle are not numbered or indexed properly, the tribunal will return the bundle to the local authority. The local authority will not be able to take any further part in the proceedings.
The bundle should have a neutral design, with no logos. The documents should be grouped into the sections listed below. Each section should include documents in date order.
If the hearing is adjourned
The local authority should supply an ‘adjournment bundle’. It should do this at least 15 working days before the re-convened hearing (or as directed in the adjournment order).
The adjournment bundle contains:
- any late evidence admitted at the first hearing
- any additional evidence that the tribunal has said it will consider
If I want legal representation is there funding available?
The Tribunal’s aim is to ensure that a parent or young person should not need to engage legal representation when appealing a decision. However, there may be times where you feel that this is necessary but cannot afford it. In some cases, Legal Aid may be available.
- If a parent or young person has decided to appeal, legal aid may be available to assist with that appeal. Legal aid can fund legal advice and assistance in preparing an appeal to the Tribunal, but not representation at the Tribunal.
- Before someone can be granted legal aid they must pass a financial means assessment. The case must also satisfy a merits test of whether it has a reasonable chance of succeeding.
- If the parent or young person’s appeal to the Tribunal is unsuccessful, and they wish to mount a further appeal to the Upper Tribunal (or beyond to the Court of Appeal or Supreme Court), then legal aid can provide advice, assistance and representation, subject to the means and merits tests being met.
If you think you might qualify for legal aid and want to apply, you can do this either via the Civil Legal Aid Agency (CLAA) or by contacting a legal aid provider directly.
To apply via the CLAA you must fill in this online form with details of your income. If you do qualify, you will then be put in touch with a legal aid advisor/solicitor. If you are unable to fill in the form online, you can call Civil Legal Advice on 0345 345 4 345, or book a call-back here. If you have difficulty speaking English, they will provide a telephone interpreter or allow a friend or family member to assist you on the call.
To apply via a legal aid provider directly you can search for the contact details of those local to you here.
The following groups do not have to apply via CLA – they can seek advice directly from a face- to-face provider:
• young people under 18, and
• those assessed by the CLA in the previous 12 months as requiring faceto-face advice, who have a further linked problem, and are seeking further help from the same face-to-face provider
What about having a paid advocate at the Tribunal Hearing?
As above, the Tribunal seeks to make the process as user friendly as possible. However it is appreciated that you may wish to pay an advocate to represent you. This would not be the same as a legal representative (or lawyer). Advocates are unregulated so if you are thinking about finding one, the Council for Disabled Children guidelines may help. You would not be entitled to have legal aid for an advocate such as these.
Is there any free support to help me with an appeal?
Even though the SEND Tribunal tries to make the process as user friendly as possible, you may require some extra support. There are several services that may be able to help.
SENDIASS
This is the local Information, Advice and Support Service for West Sussex and will be able to provide advice and possibly someone to support you in bringing an appeal. Please contact us to find out how we can help.
Please note: If you are being supported already by a legal representative or other advocate, it is unlikely that we would also be able to help you as priority will be given to those who do not have support.
IPSEA
You can get advice about your appeal from IPSEA’s Tribunal Helpline. You can book an appointment with one of their trained volunteers.
Please note that this service isn’t available if you are being supported already by a solicitor or other advocate.
Other charities
If you are unable to get through to IPSEA, there are also other charities who give advice on SEN law, such as SOS SEN and Contact.
You may be able to get advice from disability-specific charities, depending on your child’s needs; for example the National Autistic Society and the National Deaf Children’s Society both have helplines for parents.
If you need specific advice on social care, health care or welfare benefits, Contact and the Disability Law Service are able to advise in these areas.
Going to the Hearing
Before the Hearing
Make sure you have the following to take with you:
- your hearing letter with your case number – the case number helps you find where you need to go in the building
- any papers that you need for your hearing
- a face covering, if you choose to wear one
- hand sanitiser, if you have some
- food and drink, including water (not all buildings have refreshments available). You cannot take in weapons, glass or liquids other than non-alcoholic drinks or hand sanitiser.
Make any arrangements you need to for the day, for example childcare or taking time off work. There are no childcare facilities and staff cannot look after your children while you are in the hearing room.
If you have a disability
You can get support in the court or tribunal building and during your case. This is sometimes called a ‘reasonable adjustment’.
Before your hearing date, contact the court or tribunal on your letter to let them know what you need.
For example, this could be:
- ramps or accessible toilets
- a hearing loop
- forms in large print
- guidance in audio or easy read formats
On the day of the Hearing
Arrive 30 minutes before the time stated in your hearing letter. Do not arrive earlier as you may be turned away, particularly during busy times. The time given in your letter is when the day’s cases start. Your case might not be first so be prepared to wait.
When you enter the building
When you enter a court or tribunal building, your bags and pockets may be checked like they would be at an airport. This may include:
- handing over your bag for it to be checked
- emptying your pockets into a tray
- taking off your shoes, coat, gloves, hat or belt
- walking through an archway detector
- being checked with a handheld scanner
You may be asked to leave certain items with security staff – you’ll get them back when you leave.
A member of staff will call you into the hearing room and show you where to sit.
During the Hearing
- You must silence all calls and notifications on mobile devices when you are in the hearing room
- You can take notes but you must not take photos or videos
- You can ask a member of staff if you need to take a break at any point during your hearing
- As part of the hearing, someone will explain who will speak and when, including what to do if you have any questions.
- You’ll be given time to give your views and make reference to any evidence you think may help. If you have a solicitor or barrister, they’ll ask questions for you.
- You are likely to be nervous and the judge will be used to this but try and speak clearly and politely to the judge, even if you are feeling emotional.
After the Hearing
The judge may summarise the main points and explain that you will receive their decision by post in a few days time.
Leave the building straight away after your hearing, this helps limit the number of people inside at any one time.
Other Resources.
HM Courts & Tribunal Service Guide to making an appeal – SEND 37
HMTCSgov.uk have a range of YouTube videos on the Tribunal and Hearings: