Practical Steps to making an appeal after a Refusal To Assess (RTA) Decision

You can appeal a decision as a:

• Parent, someone with parental responsibility, or someone who cares for a child
• Young person aged 16 to 24 (or an advocate or ‘alternative person’ acting on their behalf)

If you missed the deadline to appeal (2 months from the LA’s Decision Letter or 1 month from the mediation certificate, whichever is the later), the SEND Tribunal may still allow you to submit it late. You will need to explain what special circumstances apply and why it would be fair and just to allow an extension of the deadline. For example, the Decision Letter from the LA was not received; did not contain all the required information; any other special circumstances that apply.

You will need to submit your appeal form as quickly as possbile and explain in Section 3 of the form (SEND35a) that the appeal is being made late and why.

A SEND Tribunal judge will then consider the appeal form and may allow an extension if there are special circumstances, and it is fair and just to do so.

No, you do not have to go to mediation, you only have to consider it. For Section I (Placement ) only appeals, you do not even have to consider mediation, but can go straight to appeal (however, you do still have the right to request it).

Under SEND Regulations 36, where a parent or young person has requested mediaiton (and the mediation issues do not relate to health care provision), the LA must arrange mediation within 30 days from the date of on which it was informed by the child’s parent or young person that he or she wished to pursue mediation. The LA in West Sussex are informed by Global Mediation.

If the LA fail to arrange mediation within this time period (you will be issued a certificate from Global to purse appeal instead), you can make a formal complaint to the LA for non-compliance with this duty. This can be submitted to the Director of Children’s Services – directorchildrenservices@westsussex.gov.uk

No, there is no cost to the parents or young person. If there is an in-person hearing, then you may be required to travel. However, you can request reimbursement of your travel expenses. You can request these through the SEND15 form

Advocate – An advocate is someone who knows you, who understands what you think about the issues in the appeal and so can speak on your behalf. For a young person, they can be a parent, family member, friend or a paid advocate. If a parent is disabled, they may also be able to have an advocate. They are not someone who can give advice on the issues in the appeal.

Representative – A representative is someone who will give you advice on the issues in the appeal, prepare the paperwork on your behalf and may represent you at the Tribunal hearing. They can also be an advocate. They could be a volunteer from a charity, a paid representative, a solicitor or barrister. Most appeals are made to the Tribunal without a representative. The Tribunal will support both parties through the process of making an appeal, to ensure that it is decided fairly and justly.

Young Person specific – It should always presumed that a Young Person has the mental capacity to make an appeal to the Tribunal. An appeal made by a Young Person will be 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 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 no appointment has been made, then usually a young person’s parents. It
could also be a family member or someone form 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 reaching their decision in the appeal. An Alternative Person can also appoint a representative during the appeal, including attending at the hearing if they wish to do so.

If you share parental responsibility for your child with ayone else, then you should ideally have spoken with them about the appeal and should include their details on the appeal form. If you have any reason why they should not be contacted or be part of the appeal, you can let the SEND Tribunal know on the form.

In the case of placement appeals, if those with equal parental responsibility disagree, the tribunal would consider the type of school based on the evidence. Therefore if one wanted mainstream, the other a specialist setting, and tribunal considered there was evidence for specialist / mainstream, it would order that one to be named (as it is in the best interests of the child).

If both parties want the same type of school but disagree on which one, the tribunal may decide to name type-only. It then would fall to the parents to decide on which school their child should go to. If they cannot agree, the family court would need to be involved and decide. The family court would have to take guidance from the Tribunals’ decision.

The Tribunal is not compelled to resolve the dispute between two parents, unless it wishes to.

Yes there are. Written views and further submissions should be as concise and focused as possible. Do not overload the Tribunal with excessive detail or irrelevant points. .

Any final submissions should be no longer than 2 pages of A4 and can be presented as a series of bullet points.

If you have any evidence that you wish to use for the appeal, but you have already submitted your appeal, you will need to gather it all and submit it in one go, before the Final Evidence deadline. This can also include your response to the LA’s formal response to the appeal. Do not send it bit by bit. You must send your Final Evidence to the LA (and they will include in the Tribunal Bundle). Do not send it to the SEND Tribunal.

It is the responsibility of the LA to create the Tribunal Bundle, and send it to you and the Tribunal by the Deadline found in the ‘Directions’ (the list of orders in the ‘New Registration’ letter you received when your appeal was registered.

Yes there are. The SEND Tribunal has issued strict orders about how the LA should prepare theTribunal Bundle including limits which can be found in their ‘Practice Directions‘. The LA must include all your evidence where it is relevant to the appeal. When you receive the Tribunal Bundle, do check that the relevant evidence has been included.

Part One: The Core Tribunal Bundle (100 page limit applies) must include:

• The parents/young person’s notice of appeal form and any reasons for appeal or amended grounds of appeal
• The LA decision letter
• The LA response to the appeal and any supplementary or amended response
• Any requests for change made with other side’s views
• All Tribunal orders
• Any further written submissions made by the parties by order of the Tribunal
• Case Review Form

Part Two: The EHCP (150 page limit applies), if relevant to the appeal: A copy of the EHC plan under appeal and all appendices listed in Section K which are relevant to the issues in the appeal

Parts Three to Seven: Any other evidence submitted by either party relevant to the particular appeal. As limits are different for each type of appeal, please see the SEND Tribunal’s Practice Directions for the relevant limit.