When a decision regarding an EHCP has been made by the LA to which a parent/carer/young person disagrees with, they can challenge that decision via the SEND tribunal service. There are a few things to note however, when exploring the option of appealing a decision.
A parent/carer/young person can only challenge an EHCP decision at certain points in the EHCP process:
- If the LA refuse to assess a child or young person for an EHC Plan
- If the LA assess the child or young person, but do not draft an EHC Plan
- If the plan is finalised
- If the LA refuse a reassessment of need and more than 6 months has passed since the original assessment of need was made
- If the LA refuse to amend an EHCP following a review
- If the LA take away an EHCP following a review
- If the LA make no changes to the EHCP following a review and a parent/carer/young person feels there should be
- If a parent/carer/young person is unhappy with the contents of the plan (sections B and/or F) or the school choice (section I)
- If the LA have not named a provision within section I of the EHCP
A parent/carer/young person only has two months from the date of their decision in which to log an appeal or one month following on from the date of their mediation certificate, whichever date is the latest.
Mediation is a less formal way of resolving an issue that a parent/carer or young person has in relation to an EHCP, this could be used for a parent/carer/young person who does not want to go to court to challenge the LA’s decision but feels the issue can be resolved at a lower level. Before an appeal can be registered with the SEND tribunal service, mediation MUST be considered.
The below image explains the mediation process:
Once a parent/carer/young person has their mediation certificate, they will need to fill in the SEND tribunal form which will be provided from Barnardos. SENDIASS can support a parent/carer/young person to fill in this paperwork and explain the next steps in the process.
Once a parent/carer/young person has registered their appeal to the SEND tribunal, they will receive electronic or hard copies of the tribunal paperwork. This paperwork can be overwhelming at first glance, we advise that you take the time to read each individual document carefully before moving onto the next one.
Contained within your paperwork will be a timeline of events/dates. This is the most important part of the paperwork, and we advise making a note of these dates for future reference. The timeline will explain on what date each next stage of the process will take place and who’s responsibility it is to respond at that time. The LA is always the first to respond to the tribunal as they always need to inform the court of their decision in response to what a parent/carer/young person is unhappy with.
For more information around SEND tribunals, please contact the team directly.
Appeals
The SEND Tribunal is part of the system of courts and tribunals which makes decisions in appeals and claims.
Click below to watch or download our useful SENDIASS tribunal support pack.
SEND Tribunal hears cases which involve:
- appeals against decisions of Local Authorities about children with special educational needs and;
- claims of disability discrimination by a school against a child
The deadline for making an appeal is two months from the date of the letter from the Local Authority giving their final written decision. You must SEND Tribunal the appeal so that it is received by SEND Tribunal within two months of the date of the letter.
If you want to appeal after the two months deadline, if the circumstances are exceptional you can apply to extend the time.
In most cases you will need to consider whether you want to go to mediation before you make your appeal. If you decide to go to mediation or decide that you don’t want to go to mediation you will need a mediation certificate issued by a mediation provider before you can make an appeal.
You have two months to request a mediation certificate from the date of the decision letter from the local authority. This deadline cannot be extended by the mediation provider. You will then have an additional 30 days from the date of the Mediation certificate to make an appeal to SEND Tribunal.
Even after an appeal has been made, parents/carers or a young person and the LA should continue to try to reach agreement by discussing the case.
What can I appeal?
You can appeal if the LA:
- refuses to carryout an EHC Needs Assessment of the child or young person’s special educational needs, following a request by a child’s parents, young person or education provider (Nursery/School/College);
- refuses to issue an EHC Plan for the child or young person after completing an EHC Needs Assessment;
- refuses to arrange a EHC reassessment of the child or young person if the LA has not carried out an EHC Needs Assessment in the last 6 months;
- ceases to maintain an EHC Plan
- decides not to amend the EHC Plan following an annual review
- decides not to change the EHC Plan after carrying out an EHC reassessment; or
- has finalised, or has changed a previous EHC Plan and you disagree with one or all of the following:
- Section B which specifies the child or young persons special educational needs in an EHC Plan
- Section F which specifies special educational provision within an EHC Plan
- Section I the school/college/institution or type of school/college/institution named in the EHC Plan
- The LA not naming a school/college/institution in Section I of the EHC Plan
The SEND Tribunal cannot deal with a case if the issue is:
- the way the LA carried out the EHC Needs Assessment, or the length of time that it took
- how the Local Authority or education provider is arranging to provide the support set out in the EHC Plan
- the way in which an education provider is meeting your child/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, K, of the EHC Plan