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Appealing to the SEND tribunal

You can formally appeal a local authority’s decision if:

  • Your child is refused an assessment or re-assessment
  • The local authority decides not to produce a EHC plan after assessment or reassessment
  • You are not happy with the EHC plan  
  • You are not happy with a decision to cease to maintain an EHC plan (end it)

The local authority’s paperwork will tell you what you need to do if you do not agree with their decision.

This usually starts with mediation. If mediation does not work, you can appeal to a special educational needs and disability (SEND) tribunal. The appeal is a legal process. You or a solicitor would need to build your case for a hearing. The local authority would do the same.

 

SEND mediation

To start the formal appeals process, you will need to speak to a mediation adviser. If you do not have details about a mediation service with the EHC plan or decision letter, contact your local authority.

Taking part in mediation

Mediation is a way to help you and the local authority SEN team resolve problems with the EHC plan outside of court. It gives you the opportunity to, amongst other things, find out why the local authority made the decision that they did, for you to explain why you disagree and to agree on a compromise to avoid going through the tribunal process. 

Mediation is a free service and will not affect your right to appeal. The service is impartial and separate from the local authority. You do not have to take part in mediation if you feel it will not work. But you will still need to talk to a mediation adviser to get a certificate.

To continue with your appeal, you’ll need to get a certificate that will either say:

  • You’ve taken part in mediation with your local authority but cannot find a compromise 
  • You know your right to mediation but do not wish to take part in this

After you start a formal appeal, you can still reach an agreement with the local authority through additional mediation before your hearing.

SEND tribunal

If you disagree with the local authority’s decision about:

  • Your child’s needs - Section B
  • The provision - Section F
  • The chosen placement - Section I

You will need to appeal to the SEND tribunal. 

Information on how to do this should be in the paperwork with the decision letter.

Who needs to be involved

The special educational needs coordinator (SENCO) may be involved to support you or the local authority. 

You will need to get evidence to support your appeal. This could be:

  • Information from people working with your child, like the SENCO, teachers, occupational therapist or GP 
  • Reports from the final EHC plan or any EHCP annual reviews 
  • A second opinion, or if you can afford it, private assessments and reports
  • If you’re challenging a placement, like the chosen school, you might involve the SENCO from:
    • The school you want your child to attend 
    • The named school if they agree that they cannot meet your child’s needs 

The tribunal is a legal process. You can involve solicitors or represent yourself.

How to appeal

Download and fill in the SEND35 form (GOV.UK). You must send this within either:

  • 2 months of the date on your local authority’s decision letter 
  • 1 month from the mediation certificate’s date

Whichever date is later will be the deadline.

Points of appeal

Educational needs and provision

You can appeal against the contents of Section B (special educational needs), Section F (special educational provision), or Section I (the school or other setting to be attended) of an EHC plan.

The contents of an appeal can be about any of:

  • The child’s special educational needs set out in Section B;
  • The special educational provision to meet those needs set out in Section F;
  • The school or other setting in Section I; and/or
  • If no school or other setting is named in Section I, that fact.

The SEND tribunal hearing

If you are being represented at the tribunal hearing or intend on having any witnesses,  you’ll need to fill in an attendance form to confirm who’ll with you.

The local authority will also complete an attendance form, naming their representative and witnesses who they want to attend the hearing.

Throughout the hearing itself, you can expect to be asked questions by the SEND tribunal, the local authority’s representative and your education lawyer. The tribunal will consist of 2 or 3 on the panel, including 1 Judge and an expert in SEND related matters.

You do not find out the decision at the hearing. Instead a written decision on your case should be sent to you within 10 working days of the hearing taking place.

Do I need to be represented?

The SEND tribunal is an opportunity for parents to express their views, concerns and reasons for bringing an appeal. Parents are not expected to know the legalities of such arguments and they tribunal judge will apply the relevant law throughout the hearing. 

Many parents do however choose to have legal representation to boost their chances of achieving their desired outcome.

Our team can assist you with initial liaison with the school to identify needs and obtain an individual education plan, requesting a statutory assessment, reviewing the statement of special educational needs through to representation at the tribunal appealing the refusal to provide a statement of special educational needs.

Delays in annual reviews

Annual review of the plan

The plan must be reviewed at least once a year. At the end of the review the local authority may make changes to the plan, end it or leave it unchanged.

How long does the plan last?

The plan will remain in place until your child leaves education or the local authority decides that your child no longer needs the plan to help them in their education. If you move to another local authority the plan will be transferred.

If the local authority determine the plan is no longer required and should be discharged, then you may be able to challenge this decision at the tribunal.

Transition matters

Children with SEN may have to make a number of transitions in a mainstream environment from early years to key stages 1 & 2 then onto secondary school and perhaps even beyond to college.

An EHCP can now exist until a child is an adult aged 25 in full time education.

Any transition should be planned, with account given to the specific needs of the child or young person. This may involve a change in circumstances review of an EHC plan or consideration as to whether one is required to determine which educational establishment should provide provision.

From the parent or carers perspective, there should be involvement with their child in the process and this may involve visits to proposed schools or colleges, in order to provide confidence that the changes that are being considered will work out.

Disability discrimination

The tribunal can also hear cases concerning discrimination in schools, but is unable to make any awards of financial compensation. Claims concerning this must be brought within 6 months.

Alternatively, an action for damages can be pursued via the County Court.

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