Appeals and Mediation
What is a Tribunal
The First Tier Tribunal (often referred to as the SEND Tribunal) is an independent panel. The SEND Tribunal is there to handle appeals against Local Authority decisions regarding special educational needs, including a refusal to:
- assess a child’s educational, health and care needs
- reassess their special educational needs
- create an EHC Plan
- change what is in a child’s EHC Plan (or Statement of Special Educational Needs)
- maintain the EHC Plan (or Statement)
They also handle appeals for discrimination by schools or local authorities due to a child’s disability.
From April 2018, for a two year pilot, the SEND Tribunal is also able to include appeals against health and social care provision within an EHC Plan (if the provision relates to the child or young person’s special educational needs). This does not apply to the LA’s refusal to secure an EHC Assessment or reassessment, only for those appealing the contents of an EHC Plan.
The Tribunal cannot make decisions on the following issues:
- the way the LA carried out the assessment or the length of time it took (the Local Government Ombudsman can investigate complaints about delays in assessing a child and issuing a EHC Plan)
- how the LA or school/college is arranging to provide the help set out in the EHC Plan
- the way the school is meeting your child’s or a young person’s needs under SEN Support
- the outcomes in Section E of the EHC Plan
- any disputes about the wording of Sections A, J and K of the EHC Plan
The SEND Tribunal looks purely at the law and if it has been interpreted correctly.
There is no cost for families to bring an appeal.
Time Scales for Appeals
When the LA makes a decision, such as refusal to reassess or refusal to create an EHC Plan, they must notify you in writing. The date of this notification is very important if you are considering an appeal, so mark it down on a calendar or in your diary.
From the date of this notification you have two months to appeal.
When you receive the notification from the LA, it should advise you of your rights to appeal, the time limits, information about mediation and the availability of disagreement resolution services, and the availability of information and advice about matters relating to the special educational needs of children and young people.
You must consider mediation before you appeal to the Tribunal.
Mediation is much less formal. You should receive details of how to contact a mediation service when you receive notification from the Local Authority about their decision to assess or not, their decision to secure a Plan or not, their decision to change or cease a plan.
Actually having mediation is not compulsory however, considering mediation is. Once you have talked to a mediation advisor, who will explain how it works, you get to choose if this is an option for you.
If you want to go ahead, they will organise bringing you and the Local Authority to discuss the problem. If you decide not to go ahead with mediation, the mediation advisor will issue a certificate so you can go forward with your appeal.
SEND Tribunal – SEND35 (not including refusal to assess)
When you apply for an appeal to the SEND Tribunal, they ask you to respond to the following questions (depending on what you are appealing):
- Why you are bringing the appeal (applicable to all appeals)
- Why you disagree with the description of SEN in Section B of the EHC Plan
- Why you disagree with the specification of special educational provision in Section F of the EHC Plan
- What the LA have not considered
- Why you disagree with the LA’s choice of school – Section I of the EHC Plan
- Why you prefer your choice of school
- If appealing Section I, if you have contacted the school of your choice and what their response was
- If you cannot name a specific school, describe the type of school you would prefer
- Why you disagree with the health care needs and health provision – Section C and G of the Plan
- What recommendations you would like the Tribunal to make with regards to Section C and G of the Plan
- Why you disagree with the social care needs and social care provision – Section D and H of the Plan
- What recommendations you would like the Tribunal to make with regards to Section D and H of the plan
Refusal to Assess – SEND35a (refusal to assess):
If a LA refuses to make an EHC Assessment, you can appeal to the SEND Tribunal. These hearings are not a face to face hearing.
They look at two things.
- Whether the child or young person has or may have SEND
- What special educational needs the child has
- What special educational needs you consider the child may have which have not yet been fully identified.
- Whether the child or young person may require an EHC Plan
- Why you think the child may require an EHC Plan
IPSEA provide detailed advice on appealing a refusal to assess.
At the Tribunal Hearing
Usually, at the Tribunal hearing there will be:
- 3 Tribunal members
- a clerk
- someone representing the Local Authority
- expert witnesses – if required
You may be asked questions by your representative (if you have someone representing you), the LA’s representative and the members of the Tribunal.
You can take along someone to support you in addition to any representative.
You can generally claim back the cost of travel (standard class rail fares, bus/tram fares or mileage if you travel by car) for yourself, your child and anyone you bring to look after your child.
Generally, you will receive the Tribunal’s decision within 10 working days of the hearing.
There are time scales in place for Local Authorities to act on the Tribunal’s decision. These can be found on the Government’s website
If the LA fails to act on the Tribunal’s decision, you can complain to the Local Government Ombudsman.
If you lose your appeal, there are processes in place to get the decision set aside (cancelled) if you think there has been a mistake in the process, ask the tribunal to review the decision (if your circumstances change since you got the decision), or you can ask for appeal to the Upper Tribunal if you think the Tribunal made a mistake.
Your decision letter will tell you what options are available to you
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