You and your family can appeal to the SEND Tribunal if you disagree with a decision made by the local authority in relation to them carrying out an EHC needs assessment or the issue of an EHC plan. The SEND Tribunal can order the local authority to carry out EHC needs assessments, issue EHC plans and change existing plans. The SEND Tribunal also hears disability discrimination claims.
What can I appeal against?
You and your family can appeal to the SEND Tribunal if the local authority decides:
- not to carry out an EHC needs assessment or re-assessment
- not to draw up an EHC plan, once they have done an assessment
- not to amend (change) an EHC plan after the annual review or re-assessment
- to cease to maintain (stop) an EHC plan
You and your family can also appeal if you disagree with what the local authority includes in an EHC plan. This can include:
- the description of special educational, health or social care needs in sections B, C and D of the EHC plan
- the description of the special educational, health or social care provision set out in sections F, G and H1/H2 of the EHC plan
- the school or other setting named in section I of the EHC Plan
- any changes to these sections that have been made without your agreement
You cannot appeal against sections A (views, wishes and aspirations), E (outcomes) and J (personal budgets and direct payments) of an EHC plan.
In April 2018, a national trial extended the powers of the SEND Tribunal to hear appeals about the health and social care sections of EHC plans. Previously, the tribunal would only look at the education sections of an EHC plan; disputes about health and social care had to be resolved through separate complaints processes.
The SEND Tribunal can now make “non-binding” recommendations about health and social care provision in EHC plans (unlike decisions in relation to special educational provision, which are binding). Although the recommendations are not compulsory, the local authority and healthcare commissioners are generally expected to follow them. You can only appeal against the health and social care aspects of an EHC plan if you also appeal against the educational aspects. IPSEA (Independent Panel for Special Education Advice) have published a useful FAQ document about the national trial.
The national trial has been extended to run until 31st August 2021.
Who can appeal?
If the decision concerns a child or young person under the age of 16, their parents (or those with parental responsibility) have the right of appeal.
If the decision concerns a young person aged 16-25 years, the young person has the right of appeal. If the young person does not have the mental capacity required, then the appeal can be brought by an alternative person – usually the parents or those with parental responsibility.
What are the timescales?
Before you and your family can appeal to the tribunal, you need a letter from the local authority informing you about their decision (e.g. telling you that they have decided not to assess your child, or informing you about the outcome of an annual review). If your appeal is about the content of the EHC plan, then you need the final EHC plan.
You and your family will also need to get a mediation certificate before you can submit an appeal. The only exception are appeals which are only about the school or other setting named in section I of the EHC plan. You can get a mediation certificate either by taking part in a mediation meeting, or by speaking to a mediation advisor and telling them that you do not wish to take part in a mediation meeting. The tribunal will not take into account whether you have taken part in mediation or the results of any discussions held during mediation. More information about mediation
You and your family must register your appeal within two months from the date of the decision letter, or within one month from the date of the mediation certificate, whichever is the later date. If you have missed the deadline, you can ask the SEND Tribunal to accept your appeal late.
How do I register an appeal?
You and your family will need to fill in an appeal form, which you can download from the SEND Tribunal’s website. When you submit the form, you also need to include a copy of the decision letter from the local authority, the final EHC plan (where applicable), your mediation certificate and any supporting evidence you have.
Detailed information about appealing to the SEND Tribunal can be found on the government website and on the IPSEA (Independent Parental Special Education Advice) website.
What happens next?
After you and your family submit your appeal form, the SEND Tribunal will reply to you within 10 working days. Their letter will tell you the timetable for your case, including the date when the hearing will be held. This is usually around 12 weeks after registering the appeal.
If your appeal concerns a refusal to carry out an EHC needs assessment, there will not be an oral hearing (this is where the people involved in the case will go to a court). The judge will decide your appeal based on the written evidence.
There may also be circumstances where a hearing will take place either on the telephone by a conference call or by a video link.
Where can I get help?
You and your family do not have to have a lawyer to go to the SEND Tribunal. If you do want to involve a lawyer, you should check if you qualify for legal aid. This would pay for support from a solicitor to prepare the case, but not for representation at the hearing.
You and your family can also get free support from Sheffield SENDIAS.
IPSEA have a Tribunal Helpline, and you can book an appointment via their website. They may also be able to provide free casework support.
Last updated: 20/03/2020
Information owner: SENDSARS / Legal Services