What is the SEND Tribunal and the Appeals system?
What is First-Tier Tribunal?
The First-tier Tribunal (also known as the Special Educational Needs and Disability Tribunal) is the court which decides appeals made against decisions made by Local Authorities about children or young persons with special educational needs.
You can appeal to the SEND Tribunal if you’re unhappy with a decision made in relation to an EHC needs assessment or an EHC plan. There are no fees for parents or young people to pay. The SEND Tribunal has the power to order LAs to carry out EHC needs assessments, issue EHC plans, and amend existing EHC plans. LAs must comply with orders made by the SEND Tribunal.
Just a reminder that for most appeals mediation must be considered first. Mediation is a way of resolving problems with the help of an independent person who is trained to help each side express their views and reach an agreement. In some cases, mediation can avoid the need for a tribunal appeal. Mediation is free and voluntary.
When can I appeal?
The Local Authority’s final written decision letter triggers your right to appeal. You have 2 months from the date of the decision letter from the local authority.
You must register your appeal with the SEND Tribunal 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, you can apply to extend the time if the circumstances are exceptional.
In most cases you will need to consider whether you want to go to mediation before you make your appeal. If you 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 will have two months to request a mediation certificate from the date of the letter from the local authority giving their final decision. The letter must give contact details for a mediation provider.
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 or a young person and the LA should continue to try to reach agreement by discussing the case, you can do this at the same time as appealing.
In Sutton parents and young people are offered a “Next Steps Meeting”, if the Local Authority decides not to carry out an EHC Assessment or to issue an EHC Plan. The Next Steps Meeting is an opportunity for parents/ young people to meet with professionals and the education setting to consider the next steps the education setting and professionals involved should take to help the child/young person (C/YP) fulfil their desired outcomes. Next Step Meetings are optional for parents/ young people. However, if you wish to appeal you should ensure you comply to the Tribunal/ Mediation deadlines, regardless of any local meetings.
What decisions can I appeal?
You can appeal a decision if your Local Authority refuses to:
- Assess your child’s EHC (Educational Health and Care) needs
- Issue an EHCP
- Reassess your child’s SEN after you have made a request
- Change what’s in a child’s EHC plan
- Maintain your child’s EHC plan
- Or if you are unhappy with the educational setting named by the LA
What decisions can’t I appeal?
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 tribunal ordered them to do.
Who can bring 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.
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 parent, 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 do so 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 can be any Deputy appointed by the Court of Protection or the young person’s parents.
Are there limits for making the appeal?
Yes, as above. SEND Tribunal must receive the appeal within two months of the date on the letter from the Local Authority giving you their final decision. 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.
Preparing for your appeal
You need to gather all the relevant evidence you to support your appeal. Make sure that you send all the relevant evidence to the Tribunal either at the time of registering the appeal, or by the date for late evidence which will be set at the appeal registration.
Think carefully and plan the information and documents that you want included in the tribunal evidence, as everything you send will be given to the tribunal panel. You should try to send in all the relevant documents with your appeal before the set date. If you don’t have all the evidence to hand continue to register your appeal and send evidence later, rather than waiting.
A working document is a copy of the final EHC Plan, on which both parties have worked to show the changes to the wording that they want or can agree, as well as those issues which the Tribunal must decide on the day of the final hearing.
The working document is provided to SEND Tribunal in advance of the hearing so that the tribunal panel is aware of the detailed wording in dispute.
The LA will send a working document to the you during the appeal process.The process
- Prepare your evidence – prepare the documents you would like to produce to support your case in advance.
- Appealing: completing the appeal form – you are required to send copies of all your supporting documents with the appeal form.
- After you send your appeal form – After you send your appeal form you should receive case directions, dates and an attendance form This should arrive within 10 days of sending in the request.
- The hearing – For ‘Refusal to Assess’ cases, a paper hearing takes place and does not involve the appellant (person appealing). For other cases, normally an oral hearing will take place with the appellant, a representative from the LA and relevant witnesses, meeting before a judge and panel member.
- After the hearing – You should receive the decision of the SEND Tribunal within 10 working days after the hearing.
Support throughout the appeal
You do not need a lawyer to appeal in a SEND Tribunal.
You do not need a lawyer to appeal in a SEND Tribunal. Most 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, you can check if you are eligible Here
You can bring witnesses to the Tribunal however you must inform SEND Tribunal on the attendance form who you will be bringing with you, otherwise they can be prevented from being a witness for your appeal.
For information about the appeal process, we advise you to download ‘How to appeal a Special Educational and Disability (SEND) Decision’ available Here.
In addition, the Tribunal has produced a set of six YouTube Videos about the appeal process, including how to prepare for the hearing. You can watch them Here.