What can I appeal about?
The SEND Code of Practice says that parents and young people can appeal to the Tribunal about:
- A decision by a local authority not to carry out an EHC needs assessment or re-assessment.
- A decision by a local authority that it is not necessary to issue an EHC plan following an assessment.
- The description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified.
- An amendment to these elements of the EHC plan.
- A decision by a local authority not to amend an EHC plan following a review or re-assessment.
- A decision by a local authority to cease to maintain an EHC plan.
Health & Social Care Elements of an EHC plan
If you lodge an appeal with the SEND Tribunal about any of the education sections (B -needs, F -provision or I -school named) in a plan, you may now ask the to consider the sections relating to health and social care needs and provision. This is part of a national trial running now until 31st August 2021. It is worth remembering that any health and social care provision which educates or trains a child or young person should be specified under 'Special Education Provision' (section F) in an EHC Plan. This might include speech and language or occupational therapies for example. You can include in your appeal where you disagree with the health and care needs or provision, or perhaps where you believe health or care needs have not been fully identified as part of the EHC needs assessment.
You CANNOT appeal a decision about:
- How the school or college is supporting your child if you don’t have an EHC plan (Education Health and Care Plan).
- The way the school or Local Authority are giving the help in your child’s EHC plan, including decisions about personal budgets.
- Failure to meet the timescale or deadlines for the EHC process or annual review of an EHC plan.
- Transport to school or college (except where there is also an issue about the school named).
The local authority’s failure to do what the SEND Tribunal ordered them to do.
You can find out more about appeals to the SEND Tribunal in the SEND Code of Practice sections 11.39 to 11.55.
Who can bring (lodge) an appeal?
Appeals concerning children aged 0-16 years old can be brought by a parent/s, someone with parental responsibility or someone who cares for the child. That person can appoint a representative to act on their behalf during the appeal process. They may also have an additional supporter to attend the hearing to give them more support.
Appeals concerning a young person aged 16-25 year old can be brought by the young person if the young person has the mental capacity to make an appeal. Appeals made by a young person will usually be supported by an advocate, which can be a parents, family members or other individuals including someone who has been paid to do so. A representative can also act on behalf of the young person for the appeal process and hearing, if appointed to by the young person.
However if the young person does not have the mental capacity to make decisions, then it can brought by an Alternative Person acting in the best interests of that young person. This will be any Deputy appointed by the Court of Protection or the young person’s parents.
If you have any special needs or need any special arrangements to be made ensure that you give details on the form.
Is there a cost to lodging an appeal?
There are no costs to you in lodging an appeal, unless:
- You choose to have legal representation.
- A witness you call charges a fee.
If you decide to have legal representation, it is likely the local authority will also instruct a lawyer.
You do not need a lawyer to appeal in a SEND Tribunal. The majority of parents do not have a representative at their appeals. However, if you want legal support you may be entitled to public funding (Legal Aid) in preparing for your appeal.
SENDIASS can offer advice and guidance for your appeal.
I have missed the deadline to appeal, what can I do?
There are strict deadlines involved if you are going to make or 'lodge' an appeal.
The appeal will need to be received by the SEND Tribunal service within two months of the original decision letter being sent by the local authority, or within one month of the date on the mediation certificate whichever is the later.
If you miss the deadline, a Tribunal Judge may extend the time for making the appeal but you must ask for the extension by:
- Sending SEND Tribunal your completed appeal form as soon as possible
- Explaining why the appeal is late giving full reasons for the delay
- Explaining why you consider the appeal will be successful and should go ahead even if late
- Explaining why the local authority will not be prejudiced by the late appeal
- Explaining why you should not have to wait for an annual review or ask for another assessment.
- Drawing attention to any other matters that you think are relevant. The Tribunal Judge may allow an extension if there are special circumstances which prevented the appeal being made in time and it is fair and just to do so.
If the Tribunal Judge allows the extension, the appeal will go ahead. If the Judge refuses an extension, the appeal will go no further.
Do I have to consider Mediation?
For most types of appeal, you need to consider mediation. Mediation is an informal way of settling disagreement with the local authority. The mediation service is free and confidential.
You do not have to consider mediation first if the appeal is only about the name of the school, or college, or the type of school or college named on the plan, or the fact that no school or other institution is named.
When you first contact the mediation service, they will give ‘mediation advice’. After mediation advice you can decide whether you want to go to a mediation meeting with the local authority.
An independent mediator from Global Mediation will arrange and run the mediation meeting. When the meeting has finished the mediator will issue you with a mediation certificate within 3 working days. You will need this certificate to register an appeal to the SEND Tribunal.
How long can a tribunal appeal take?
From start to finish, the process of making an appeal can take up to five months depending on the type of case.
If the appeal is concerning a “phase transfer” e.g between primary and secondary school, the tribunal service will try to complete the process in the shorter timeframe of around 12 weeks.
Appeals against a refusal to complete an EHC needs assessment are normally paper based and can be completed quicker than 20 weeks.
All other types of appeal will usually result in an oral hearing heard by a tribunal panel which the young person or parent/carer would normally attend.
You have the right to appeal against your local authority’s decision as soon as they have sent their decision in writing. They must notify you of your right to appeal the decision and the time frames you have to appeal the local authority’s decision.
What do I need to include with my appeal?
When you complete your appeal form, you will need to include-
- Your decision letter from the local authority.
- Your signed mediation certificate.
- Reasons for Appeal - additional pages if your reasons for appeal do not fit in the boxes on the form.
- A copy of the EHC plan with its appendices if your appeal is about an existing plan.
When completing your form:-
- Be sure to include the views of your child or young person.
- Organise your appeal so that it will be easy for the panel to read and understand your key points.
- Use paragraphs with headers and number your points, include a page which lists all your supporting documents (contents or appendices).
- Send copies of any documents (single sided), not the originals.
- Within your appeal refer to evidence that backs up your points.
- Link your points to relevant law where you are able.
- It can be helpful to write an opening summary or bullet point your key issues.
- Remember the panel do not know your child, so make sure you include all their needs but...
- Be as concise as you can, particularly with background history. Stick to needs that are still relevant.
I have submitted my appeal, what happens next?
The appeal will usually be registered by SEND Tribunal within 10 working days. This may be longer when they are busy.
They will issue:
- Case directions – these set dates by which you must take action. Please keep a note of these important deadlines as you can be barred from the hearing for failing to comply.
- An attendance form – you will be given a date by which you must inform the SEND Tribunal and the local authority about the witnesses (if any) along with any others that you want to bring to the hearing. If a witness refuses to attend the hearing you can ask the SEND Tribunal to issue a witness summons which requires them to attend.
- A case management questionnaire.
And they will:
- Write to you with a hearing date, and your deadlines for submitting further documents or evidence.
- Provide you with an appeal reference number which you must use in any further correspondence with SEND Tribunal.
- Send the local authority a copy of what you have sent. The local authority will be given 30 working days (6 weeks) to respond.
Use this time to gather any further evidence.
What will the local authority do about my appeal?
The local authority must respond within 30 working days of a copy of the appeal notice being sent. They will send a copy of their response and any accompanying documents to you and to SEND Tribunal. If you do not receive the response within eight weeks of your appeal being registered, you should notify SEND Tribunal in writing.
The local authority has the option to;
Oppose your appeal: The response must say whether or not they oppose the appeal and, if they do, they need to explain why. Sometimes the local authority’s response can make extremely negative and disheartening reading for parents. It may even include information you consider inaccurate or misleading. You can send a counter-response addressing these issues
The local authority may also apply to strike out (bring to an end) your appeal if they believe it is a case that the SEND Tribunal cannot consider. If that happens, the Tribunal will send you a copy of the local authority’s application and ask for your written comments, giving you the opportunity to explain why you think your appeal should continue
Not oppose your appeal - This will depend on the issues in your appeal. If the local authority agrees to change the contents of the EHC Plan and you are satisfied with the outcome, you can withdraw the appeal or ask the Tribunal to order the local authority to change the EHC Plan in the way you have agreed by making a consent order.
If the appeal is about a decision not to carry out an EHC Needs Assessment or re-assessment, not to issue an EHC Plan, not to change the school named in an EHC Plan that is over one year old or to no longer maintain an EHC Plan, and the local authority does not oppose it, the appeal will automatically come to an end. The local authority will have to do what they have agreed to do within a fixed time limit.
Can I bring witnesses to the hearing?
You can ask professionals, including school staff, to be a witness. Think carefully about how they would support your case. It may be just as helpful if they were to provide a letter, a report or a statement which you can include as evidence.
If they attend the hearing, your witness (you can have no more than three) may clarify or expand on information they have provided.
To let SEND Tribunal and the local authority know who will be attending the hearing, you will need to complete an Attendance form and include details of any supporters, representatives or witnesses that have agreed to attend with you.
If you do not complete the form within the dates set your witness can be struck off from attending the hearing.
The local authority can ask professionals to attend as witnesses too – you will be able to see who they have called when you receive the appeal bundle.
For information on SEND Tribunal - If you are asked to be a witness
How can I request information from the local authority or school or make changes?
You can request information or a document from the local authority or school.
If you have asked for information or a document important to your case and have been refused, you can ask the SEND Tribunal to make an order requesting the information. You will need to complete a Request for change form.
If you submit copies of further documents or evidence, you must also send a copy to the local authority. Make sure you do this by the deadline given, as late evidence may not be accepted.
You should complete the Request for change form explaining the changes you want to make and explain the reasons for asking for the amendments and send a copy of the form to the local authority seeking their views. You should then send the local authority’s views along with the request form and any supporting documents to the SEND Tribunal, and a copy to the local authority.
The request will be considered by a Registrar or Tribunal Judge and an order will be issued and sent to you and the local authority.
What is a Working Document?
When the local authority responds to an appeal about the contents of an EHC plan, they will usually include a ‘working document’. This is simply a copy of the final EHC plan.
You will be able to edit this document, showing the proposed changes you would like to see made. You can then return it to the local authority for review.
This should be an ongoing process which enables agreement to be reached ahead of the hearing, for example the local authority might agree with some of your proposals but not all.
What is telephone case management?
This is where a conference call is arranged between the Tribunal judge, the local authority and you (and/or your representative). You will be given a number to call and call joining instructions beforehand.
It might be that one party has requested this or perhaps the judge would like something clarified ahead of the hearing. Sometimes it can be just to set a new hearing date.
You can also request Telephone case management, perhaps where you would like some information from the local authority or clarification of something that cannot wait until the hearing.
Use the Request for change form (and send a copy to the local authority) to explain why you would like the SEND Tribunal service to arrange this for you.
What is the appeal bundle?
At least 10 working days before the hearing you will receive a copy of the full appeal bundle.
The bundle is the full collection of evidence submitted by both parties.
It is the local authority’s responsibility to put the evidence in order, number the pages and send it out as ‘the bundle’ to the parents and to SEND Tribunal
- It must be sent to you two weeks ahead of the hearing.
- It is very important that you go through the whole bundle.
- Make sure, as best you can, that all the evidence you submitted has been included (especially any additional evidence and emails pertaining to it).
- Familiarise yourself with the whole of the bundle, including the local authority’s evidence and argument.
- Highlight evidence which you think you will be likely to draw on at the hearing.
Can I submit late evidence?
You will have a deadline for submitting final evidence. You can find the deadline date in the parent registration letter which you received from the SEND Tribunal Service after lodging your appeal
It is important that you keep to the deadline for final evidence because any late evidence might not be accepted. If evidence is late coming in, do not request a delay in the evidence deadline because that would delay the hearing date.
If you have late evidence, you may seek permission for it to be included. You must first ask the local authority if they are happy with this, and then ask the SEND Tribunal. All this must be done via a Request for Change form
- If you know that you will have late evidence (perhaps a report that is yet to be finished) you will need to alert the SEND Tribunal and the local authority to this before the deadline for final evidence. You should identify what this late evidence will be, why it will be late and roughly when you expect it to be available. You do this using the Request for Change form.
- If, after the final deadline, you receive new evidence that you were not anticipating, you simply need to explain this using the Request for Change form.
Note: The local authority is required to go through the same process should they wish to add late evidence.
How can I calculate costings to supply at a tribunal appeal?
Please read information from SEN Help on how to obtain costings for evidence at a appeal
What happens during the hearing?
The SEND Tribunal has been conducting all on paper or by telephone (and, where the technology permits, by video) since Monday 23 March 2020.
The SEND Tribunal administration team will send out log in details in advance of the hearing. These will be issued when the Notice of Hearing is issued. Instead of a physical venue you will see dial in or video dial in details with full instructions on how to join.
- The Tribunal Judge will provide an introduction, explain the procedures and list the issues to be considered;
- The panel will consider the appeal on an issue by issue basis;
- You and the local authority will be invited to give your views and present your evidence on each issue;
- You will have the opportunity to ask questions of the local authority, witnesses and also have the chance to add anything additional you feel is important and has not been previously mentioned. The local authority will be given the same opportunity;
- You may be invited to make a brief closing comment to summarise your position.
Can I withdraw my appeal?
If you decide to withdraw your appeal, you will need to notify SEND Tribunal and the local authority. There is a Withdrawal of Appeal form.
Depending upon how close to the hearing date your request is received, sometimes the judge will insist both parties attend the hearing to discuss late settlement especially if your request is less than 5 days before the hearing date.
Where you have come to an agreement after the local authority have sent in their response to the appeal, a document detailing what has been agreed should be signed by both parties and sent to SEND Tribunal. This is known as a ‘consent order’. As there are no deadlines which apply automatically we would advise you agree this with the local authority and include it in the consent order.
What happens after the hearing?
The SEND Tribunal decision will be communicated to you and the local authority, within 10 working days of the hearing.
Following the decision, the local authority must comply with these timescales:
- To start the assessment or re-assessment process - 4 weeks
- To make an EHC plan - 5 weeks
- To amend the EHC plan - 5 weeks
- To amend the school/college/institution - 2 weeks
- To continue an EHC plan - immediately
- To cease an EHC plan – immediately
Some of these timescales also apply when the local authority tells SEND Tribunal they do not oppose the appeal. If the local authority does not keep to the order within that time, you may have to apply to the Secretary of State for Education or the High Court to enforce it. You can also make a complaint to the Local Government Ombudsman by contacting the LGO Advice Team on 0845 602 1938 or by writing to:
Local Government Ombudsman
PO Box 4771
Coventry CV4 0EH
Can I claim expenses?
You and your witnesses are entitled to claim travel expenses to attend the hearing, as well as your friend or relative who is looking after your child.
However, before you travel make sure you have told the SEND Tribunal if you have particular needs that will require you to take a taxi. Otherwise use public transport unless it is not available.
Witnesses can also claim back a fixed amount for loss of earnings.
What Can I do if I disagree with the decision?
You or your representative can make an application for permission to appeal the decision made in the First-Tier Tribunal by making the following applications:
- Apply for permission to appeal if you think the decision made was wrong in law.
- Ask SEND Tribunal to review the decision because there has been a change of relevant circumstances since the decision was made.
- Ask for the decision to be set aside in certain circumstances.
The three applications are explained in detail in the guidance sent with your decision by the SEND Tribunal.
What happens if the LA does not comply with Tribunal deadlines?
If the local authority does not comply with tribunal deadlines please read the guidance from Ipsea (Independent Provider of Special Education Advice) After the Hearing. Ipsea provide a template letter to complain to the local authority.
Also in this section:
What happens at a video hearing at the Special Educational Needs & Disability Tribunal - British Sign Language (BSL)