Appeal to SEND Tribunal
General information on Tribunal:
Information on SEND Tribunal
The Special Educational Needs and Disability (SEND) Tribunal are independent body that hears parents’ and young people’s appeals against Local Authority (LA) decisions about EHC assessments and EHC plans. There are no fees for parents and young people to pay.
It also hears about disability discrimination claims against schools and against the local authorities when the LA is the responsible body for a school.
The SEND Tribunal are governed by law, rules and regulations including judgments made by higher courts in SEN disputes and must have regard to the SEN Code of Practice. They have the power to order the LA to:
- Carry out an EHC assessment or re-assessment
- Give your child/YP an EHC plan after carrying out an EHC assessment or
- Amend the EHC plan following a re-assessment or Annual Review
- Amend the content of Sections B, F and I of the Final Plan issued by the LA
- Continue to maintain the EHC Plan after Local Authority decided to stop it. (Ceasing an EHC Plan)
The SEND Tribunal also has the power to make recommendations about health and social care issues in all appeals, except refusal to carry out an EHC needs assessment or reassessment.
Local Authority must comply with orders made by a tribunal.
Who can Appeal?
Parents/legal guardians (of children from aged 0 to the end of compulsory schooling) and young people (over compulsory school age until they reach age 25) can appeal to Tribunal about EHC needs assessments and EHC plans.
Young people can register the appeal in their name but can also have their parents help and support if needed or an independent advocate.
What you can appeal about
A decision by LA
- not to carry out an EHC needs assessment or re-assessment
- 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 education provision specified, the school or type of school or other institution (such as 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
- not to amend an EHC plan following a review (annual review) or re-assessment)
- to cease to maintain an EHC plan
The tribunal does not hear appeals about Personal Budgets but will hear appeals about special educational provision to which a PB may apply.
Conditions of appeal
- appeals must be registered with the tribunal within two months of the Local Authority decision letter notifying about one of the matters that can be appealed or within one month.
- the right to appeal a refusal to carry out an EHC needs assessment will be triggered if the Local Authority have not carried out an assessment in the previous six months.
- of the appeal is about a decision to cease to maintain the EHC plan, the LA must maintain the plan until the Tribunal decision is made.
Appeal deadlines
The deadline for submitting your appeal is –
- two months (60 days) from the date of the Local Authority decision letter, or
- one month (30 days) from the date of the Mediation Certificate, whichever is the later.
Late Appeals
If you are outside your legal time frame it may still be possible to appeal. The tribunal uses their discretion on a case-by-case when deciding to accept late appeals if there are valid reasons.
Guides and videos about appeal process from SEND Tribunal
The Tribunal have produced a detailed guide on how to appeal a SEN decision to help you through the process here.
The Tribunal have produced a set of six videos about the appeals process and how to prepare for the hearing. You can watch it here.
An easy read version for young people here.
For Deaf British sign language users, click here to view the video in BSL
Mediation
Mediation is a way of helping those in disagreement to resolve their disputes. Going to mediation is voluntary for parents and young people, but if you agree to go to a mediation meeting the Local Authority must attend.
You will be offered the chance to have a mediation meeting with the Local Authority before you appeal to the SEND Tribunal, unless you are only appealing against Section I of the Education Health Care Plan, in which case Mediation is not required. A mediation meeting must be arranged within 30 days of your request,
Trained mediators run the meeting and make sure that all views are heard, and that the needs of the child or young person are at the centre of the meeting. Any decisions made in the mediation session by the LA are legally binding, i.e., if the LA agrees in mediation to carry out an EHC Needs Assessment then they have a legal duty to do the assessments.
Whether or not you decide to accept a mediation meeting, if you do not receive your Mediation Certificate before the deadline (2 months from the date on the LA decision letter) you will lose your right to appeal.
If you agree to have a Mediation session, the Mediation Service will explain what your new appeal deadline is – make sure you are clear about the timeline so that you do not lose your right to appeal if you are not satisfied with the outcome of the mediation session. Depending on individual cases, some parents chose to appeal immediately after obtaining the certificate or some choose to contact the mediation service closer to the two-month appeal deadline therefore taking advantage of the extension of 30 days that is offered.
If you do not want to have a mediation session, you still need to contact the Mediation Service and request a Mediation Certificate to prove that you have considered Mediation and that you received information about the process. You need this certificate for your appeal and it must be sent to the SEND Tribunal with your appeal submission.
Contact details for the mediation service are in the letter that you receive from the local authority informing you of their decision.
Appeal forms
SEND Form 35a: For Refusal to Assess appeals only
SEND Form 35 : For all other appeals
SEND Form 37: How to appeal a SEN decision.
SEND Form 7: Request for Change form.
SEND Form 8: Withdrawal of appeal or claim.
SEND Form11: Attendance for – parents.
SEND Form 11YP: Attendance form – young person.
Types of appeal:
Refusal to carry out an EHC Assessment
Legal Test:
The legal test for deciding whether to secure an EHC needs assessment is contained in the Children and Families Act 2014 s. 36(8).
- Whether the child or young person has or may have SEN?
- Whether the child or young person may require an EHC plan?
Appeals to SEND Tribunal for a refusal to assess are usually paper hearings and you will not be expected to attend the hearing in person or online. You just need to send all your evidence and explain your arguments in writing.
If you would like to attend a hearing, there is an option to request this giving your reasons why you would like an oral hearing.
Law and Guidance reference:
Section 36, Children and Families Act 2014, Regulations 3, 4 and 5 of the SEND Regulations 2014.
SEND Code of Practice 2015 Chapter 9, 9.14
IAS Information Booklet:
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Refusal to carry out an EHC needs assessment’.
Appeal form:
The form you need to appeal a refusal to assess is Appeal 35a form.
IAS Video Guidance
IAS have produced a video guidance on completing Form 35a for ‘Refusal to Assess’. See video link here.
Useful information
IPSEA have produced a refusal to assess pack to help parents and young people take an appeal to Tribunal against LA’s decision not to carry out an EHC needs assessment.
The Tribunal have produced a detailed guide on how to appeal a SEN decision to help you through the process here.
If you have limited evidence available, SOS SEN produced a template example on how you may write your grounds of appeal for your appeal form.
Refusal to issue an EHC plan
Legal Test:
- whether the special educational provision required to meet the child or young person’s needs can reasonably be provided from within the resources normally available to mainstream early years providers, schools and post-16 institutions, or
- whether it may be necessary for the local authority to make special educational provision in accordance with an EHC plan’ (9.55)
SEND Law and Code of Practice 2015 reference
Sections 36 and 37 of the Children and Families Act 2014, Regulations 6, 7 and 8 of the SEND Regulations 2014.
SEND Code of Practice (2015): Chapter 9, paragraphs 9.53 – 9.60
IAS Information Booklet:
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Refusal to issue an EHC Plant’.
Appeal form:
The form you need to appeal a refusal to assess is SEND Form 35
IAS Video Guidance
IAS have produced a video guidance on completing Form 35 for ‘Refusal to Issue EHC Plan’. See video link here.
Contents of Final Plan or Amended EHC Plan
Legal test:
an EHC plan is a plan specifying—
- the child’s or young person’s special educational needs.
- the special educational provision required by him or her; (37 (2))
- the school ins
And: - Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision). (21 (5))
SEND Law and Code of Practice 2015 reference:
Section 37 of the Children and Families Act 2014 and Regulations 11 and 12 of the SEND Regulations 2014.
SEND Code of Practice (2015). Chapter 9, Section 9:61 – 9:76 which covers the content of the EHC plan.
IAS Information Booklet:
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Appealing the contents of an EHC Plan’
Appeal form:
The form you need to appeal a refusal to assess is SEND Form 35
IAS Video Guidance
IAS have produced a video guidance on completing Form 35 for appealing ‘Contents of an EHC Plan
Refusal to amend the plan following an Annual Review or a re-assessment
Legal Test
All EHC plans by law must to reviewed within 12 months of the last annual review meeting
SEND Law and Code of Practice 2015 reference:
Children and Families Act 2014
SEND Regulations 2, 18, 19 and 21
Code of Practice – chapter 9: paragraphs 9.166 -9.185
IAS Information Booklet:
- Refusal Assess
- Contents of the Plan
If you are appealing the Local Authority’s decision not to amend the plan following an AR or reassessment the procedures in the above booklets are the same for this type appeal.
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Appealing following an Annual Review’ or a re-assessment here.
Appeal form:
The form you need to appeal a refusal to assess is SEND Form 35
IAS Video Guidance
IAS have produced a video guidance on completing Form 35 for ‘Refusal to amend an EHC Plan following a re-assessment or an Annual Review’’. See video link here.
Appeal a school (or type of school) in an EHC Plan
Legal test:
Is the requested placement:
- Incompatible with efficient education of others
- Incompatible with efficient use of resources
- Inefficient use of resources
SEND Law and Code of Practice 2015 reference:
IAS Information Booklet:
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Appealing the contents of an EHC Plan’.
Appeal form:
The form you need to appeal a refusal to assess is SEND Form 35
IAS Video Guidance
IAS have produced a video guidance on completing Form 35 for appealing ‘Contents of an EHC Plan
Appealing for:
- No named school or a type of school
- a mainstream school or mainstream school with resource base/unit
- a special school
- an independent school or independent special school/non-maintained special school.
- an education otherwise at home EOTAS
- a residential school/Waking day curriculum
Appealing a cease to maintain (stop a plan)
Legal test:
- whether the child or young person has achieved their Outcomes (see Section E of the EHC plan) or
- if the child or young person still requires the provision specified in Section F of the EHC plan to be made for them
SEND Law and Code of Practice 2015 reference:
SEND Code of Practice 2015, Chapter 9, paragraphs 9.199 – 9.210
Section 45 of the Children and Families Act 2014 and SEND Regulations 2014, Regulations 29, 30 and 31
IAS Information Booklet:
For more information on supporting evidence that may be needed to appeal, please have a look at the IAS brochure on ‘Ceasing to maintain the Plan
Appeal form:
The form you need to appeal a refusal to assess is SEND Form 35
IAS Video Guidance
IAS have produced a video guidance on completing Form 35 for appealing ‘Cease to maintain the EHC Plan
Disability Discrimination:
The Government website has a lot of useful information about rights in education. Click here
The Equality Act 2010
It’s against the law for a school or other education provider to treat disabled students unfavourably. This includes:
- direct discrimination, for example refusing admission to a student or excluding them because of disability.
- indirect discrimination, for example only providing application forms in one format that may not be accessible.
- discrimination arising from a disability, for example a disabled pupil is prevented from going outside at break time because it takes too long to get there
- harassment, for example a teacher shouts at a disabled student for not paying attention when the student’s disability stops them from easily concentrating.
- victimisation, for example suspending a disabled student because they’ve complained about harassment.
Disability Discrimination and Exclusions
If a school unfairly excludes a pupil with a disability, this could be disability discrimination.
A pupil is disabled if they have a long-term physical or mental impairment which has a substantial adverse effect on their ability to carry out day-to-day activities (this is the definition in the Equality Act 2010). For more information, please click here
What should I do if I think my child is being discriminated against?
- Request to meet with the head teacher of the education provider to discuss the incident.
- Speak to the responsible body. This will be the governing body for Local Authority maintained schools and the Academy Trust if the school is an Academy.
- Follow the education provider’s written complaints procedure.
- Also/alternatively, make a claim for unlawful discrimination through the First Tier Tribunal (SEND) in England.
- The complaint has to be made with 6 months.
Useful information and reads.
Equality Advisory Support Service (EASS) – GOV.UK (www.gov.uk)
Requesting IASS support for Mediation, Appeal forms & Tribunal
IASS Tribunal Support
We are an impartial service, IASS are unable to contact Mediation on behalf of parents/YP and we do not arrange Mediation meetings. Parents/YP need to contact the Mediation Service themselves.
IASS can help parents prepare for mediation sessions. We do not usually attend Mediation meetings but this can be discussed on a case-by-case basis, depending on individual circumstances and on our case load and availability.
IASS can give you advice on how to complete your appeal form and how to draft your grounds for appeal as well as signpost you to helpful resources. Parents/YP are responsible for
- submitting their appeal paperwork directly to the Tribunal.
- meeting their appeal deadlines and for submitting the forms in time.
Representation at Tribunal Hearings
IASS caseworkers and volunteers can ‘represent’ a young person or parent at a hearing and assist in the presentation of their case in accordance with rule 11(5) of The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, as amended. Available at https://www.gov.uk/government/publications/health-educationand-social-care-chamber-tribunal-rules.
IASS are not legally qualified so we cannot act as your legal representative in hearings. We can however assist you to prepare for your hearing and support you to put forward your views and wishes during the hearing.
When you are notified of your hearing date, please inform IASS as soon as you can so that we can check availability. Please note that we prioritise cases where ongoing support has been provided by the IASS team.
If IASS agree to represent you at the hearing, we will give you consent to name us on the Attendance Forms which will be sent to you by Tribunal when they register your appeal. At that time, we will provide you with the correct wording to be added to the form to explain our role at the hearing. Our attendance needs to be approved by the Tribunal.
Private Legal/SEN Advocacy Support
In situations where parents/young people choose to pay or receive advice from private SEN legal/SEN advocacy support, it is IASS policy that we will withdraw from your case, to avoid conflicting advice being given and so that we can prioritise parents and young people who most need our support. Please notify us if you take up other tribunal support services.
Legal aid eligibility clients:
Parents and Young people who do not qualify for legal aid will get priority for tribunal support from IASS. This is due to limited availability of caseworkers and service capacity issues.
If you qualify for Legal Aid, IASS advise you to seek help from a solicitor at your earliest opportunity as we may not be able to support you, but we may be able to assist with registering the appeal until a solicitor is found. We need at least 5 working days of your appeal deadline date to support you.
Legal aid does not cover representation/attendance on the day of the hearing, if you need support, you may contact us to check availability of our caseworkers or volunteers to support you on the day of the hearing. We will require a minimum of 4 weeks or more notice for this.
Legal aid calculator
Use this link to check if you are eligible for Legal Aid and to find a legal aid solicitor in your area:
Legal Aid calculator – https://www.gov.uk/check-legal-aid
Other support:
You may be able to get help preparing your appeal from the following charities who give advice on SEN law:
- IPSEA’s Tribunal Helpline. You can book an appointment with one of their trained volunteers here.
- SOS SEN: National Autistic Society and the National Deaf Children’s Society both have helplines for parents.
IASS impartiality and confidentiality
Please refer to our Impartiality and Confidentiality policies for information on how we work with parents and young people and how we keep your data.
By requesting IASS support with your appeal, you are confirming that you have read and understood these policies and that you are aware of and agree to the following:
- Westminster IASS caseworkers are local authority employees.
- the IASS Service works at arms-length from the local authority.
- the IASS caseworker allocated as your ‘representative’ for your appeal is acting solely on your behalf.