First-tier Tribunal (Special Educational Needs and Disability)
IMPORTANT UPDATES 2022
SENDist Tribunal Backlog
As of May 2022, the SENDist Tribunal is facing an unprecedented backlog and will be prioritising cases which involve a phase transfer and/or where the child/young person is out of education.
Change of contact details:
The return email address stated in section 12 of the appeals forms has been changed. The forms are currently under review and will be updated in the near future.
The new email address is: [email protected]
If you have any questions, please contact the court service helpline: 01325 289 350
What is SENDist Tribunal
Families of children and young people with special educational needs and disabilities (SEND) may require legal support, advice and information on the legal process. This could be for a variety of reasons including ensuring their child or young person is receiving education and support most suited to their needs.
The Special Educational Needs and Disability Tribunal (SENDist) deals with disagreements between parents and local authorities.
If you decide to go ahead with an appeal, there are strict time limits to adhere to.
Bexley Information, Advice and Support Service (IASS) would like parents/carers and SEND young people to be aware of their rights.
On this page you will find information on the SENDist appeal process and organisations who will be able to offer additional advice and support.
It’s a good always a idea to continue talking to the local authority when you are in disagreement, as it may be possible to resolve the issue without having to lodge an appeal.
Let them know what it is you disagree with and what you would like changed. These discussions will help you decide whether to go to Mediation or SENDist Tribunal appeal.
If you do decide you want to pursue a Local Authority decision to the SENDist Tribunal, you must consider Mediation first. For more information on Mediation please see our page on Disagreement Resolution & Mediation.
Who can lodge an Appeal to the SENDist Tribunal
The child or Young Persons parent carer can lodge an appeal to the SENDist Tribunal.
However, the right of appeal moves to the young person when they reach the end of compulsory school age (the last Friday in June of the academic year in which they turn 16).
There are no costs to you with appealing, unless:
- you choose to have legal representation.
- a witness you call who may charge a fee.
SENDist Tribunal have produced a guide to support you in understanding how to appeal a SEN decision. Please CLICK HERE: How to appeal a SEN decision
SENDist Tribunal have also produced an Easy Read guide explaining how to appeal a SEND decision: Please CLICK HERE: EASY READ How to appeal a SEN decision
Which Local Authority decisions can I appeal against?
- A refusal to carry out an EHC needs assessment
- A refusal to issue an EHC plan
- The contents of a final EHC plan or amended plan
- The school or other named setting (Sec I)
- A decision to cease to maintain an EHC plan
Which education sections of the plan can I appeal?
You may only appeal these educational sections of an EHC plan:
Section B– Special Educational Needs
Section F– Special Educational Provision
Section I– The school or setting named, or that no school or setting is named
You may not appeal sections A (views of your child), E (the required outcomes) and J (direct payments)
Is there a deadline I need to be aware of?
The deadline for making appeals is two months from the date of the letter from the local authority giving their final written decision. 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. ( regarding against Sec I of the EHC Plan (the named school placement) you will not need to apply for mediation)
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
Types of Appeal
1. Refusal to carry out an EHC Needs Assessment
The decision letter from the local authority will explain your right to mediation and appeal.
It will also outline the time scales in which to appeal. These are strict deadlines and not to be ignored if you plan to go to Mediation or SENDist Tribunal.
Section 36 (8) of the Children and Families Act 2014 says:
‘The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—
(a) the child or young person has or may have special educational needs, and
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.’
Determining whether a child under compulsory school age has ‘SEN’
Section 20 (3) of the Children and Families Act 2014 says:
‘A child under compulsory school age has a learning difficulty or disability if he or she is likely to be within subsection (2) when of compulsory school age (or would be likely, if no special educational provision were made)’
Reminder that subsection (2) states:
(2)A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a)has a significantly greater difficulty in learning than the majority of others of the same age, or
(b)has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.
For young people, there is an additional consideration:
Section 36 (10) of the Children and Families Act 2014 says:
‘In making a determination or forming an opinion for the purposes of this section in relation to a young person aged over 18, a local authority must consider whether he or she requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete his or her education or training.’
Information and advice to be obtained in the EHC Needs Assessment
In addition to seeking information and advice from families, the educational setting, psychological, health, and social care: SEND Regulation 6 says the local authority must seek:
‘advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from.’
This might include a speech and language therapist, occupational therapist or someone from CAMHS (Child and Adolescent Mental Health Services), for example. The local authority would have to deem the request as ‘reasonable.’
Duty to cooperate in EHC needs assessments
SEND Regulation 8 says:
‘Where a local authority requests the co-operation of a body in securing an EHC needs assessment in accordance with section 31 of the Act, that body must comply with such a request within 6 weeks of the date on which they receive it.’
2. Refusal to issue an EHC Plan.
The decision letter from the local authority will explain your right to mediation and appeal.
It will also outline the time scales in which to appeal. These are strict deadlines and not to be ignored if you plan to go to Mediation or SENDist Tribunal.
The SEND Code of Practice 2015 says…
‘Where, despite appropriate assessment and provision, the child or young person is not progressing, or not progressing sufficiently well, the local authority should consider what further provision may be needed. The local authority should take into account:
- 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)
So what does this mean?
In reaching their decision the local authority should consider:
- the information gathered during the EHC needs assessment
- the child or young person’s SEN
- the Special Educational Provision being made
Where the child ot young person is not making expected progress, despite appropriate provision they should consider:
- any further Special Educational Provision needed
- whether the required provision could reasonably be provided from within the resources normally available to the education setting or whether it is necessary for the local authority to make special educational provision in accordance with an EHC plan
3. Challenging the contents of the final EHC plan.
The decision letter from the local authority will explain your right to mediation and appeal.
It will also outline the time scales in which to appeal. These are strict deadlines and not to be ignored if you plan to go to Mediation or SENDist Tribunal.
This relates to appealing (section B) and/or provision (section F) of an EHC plan.
This may also be helpful if you are appealing the school/setting or type of school/setting named – as the contents of the plan are relevant to the appeal.
The Children and Families Act 2014 says:
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))
- 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))
The SEND Regulations (section 12) says that each section of an EHC plan must be separately identified.
So what does this mean?
It is really important that sections B and F accurately reflect your child/young person’s Special Educational Needs and Provision, including any related health or care provision which educates or trains your child.
This helpful checklist sets out what legally must be included as a minimum in any education, health and care plan (EHCP) issued by a local authority
under Part 3 of the Children and Families Act 2014. CLICK HERE: EHCP Checklist
4.The school or other named setting (Sec I)
The decision letter from the local authority will explain your right to mediation and appeal.
It will also outline the time scales in which to appeal. These are strict deadlines and not to be ignored if you plan to go to Mediation or SENDist Tribunal.
Parent carers and young people have the right to request that a particular school, college or other setting is named in an EHC plan.If the LA does not agree to the parent carer or young person’s request and names a different setting, this can also be appealed to the SEND Tribunal.
A parent or young person has a right to request any of the following types of school or college. These are listed in section 38(3) of the Children and Families Act (“CAFA”) 2014.
- A maintained school or nursery (mainstream or special)
- An Academy (mainstream or special)
- An institution in the Further Education sector
- A non-maintained special school
- A section 41 school (these are independent schools which have ‘opted in’ to be able to be requested by parents – you can find a list of section 41 schools here) These are listed in section 38(3) of the Children and Families Act (“CAFA”) 2014.
If you are not sure what type of school you’re asking for, check on the government website ‘Get Information About Schools
Bexley IASS have developed a screencast on Independent schools and SEND Law. CLICK HERE view: Independent schools and SEND Law
The only reason the local authority can refuse the request is if:
- The setting is unsuitable for the age, ability, aptitude or special educational needs of the child or young person; or
- The attendance of the child or young person would be incompatible with the provision of efficient education for others; or
- The attendance of the child or young person would be incompatible with the efficient use of resources.
The LA has to prove that at least one of these conditions applies in order to dislodge the parent or young person’s preference.
For further information on Appealing the school named in the EHCP (Sec I ) appeals please CLICK HERE: SEC I Appeals
5. A decision to cease to maintain an EHC plan.
When a local authority decides to end an education, health and care (EHCP) , this is called ‘ceasing to maintain’ the EHC plan. This means that the EHC plan will come to an end and the LA will no longer have the legal duty to ensure that the educational provision specified in the EHC plan is received by the child or young person.
When can the LA cease to maintain an EHC plan?
An LA may decide to cease to maintain an EHC plan at any time, but they can only do so on certain grounds:
- If the LA is no longer responsible for the child or young person; or
- If it is no longer necessary to maintain it.
These are the only legal reasons for ceasing to maintain an EHC plan (they are set out in section 45 of the Children and Families Act 2014).
An LA would no longer be responsible if:
- The young person has taken up paid employment (excluding apprenticeships);
- The young person has started higher education (university);
- A young person aged 18 or over has left education and no longer wishes to engage in further learning;
- The young person has turned 25; or
- The child or young person has moved to a different LA.
The SEN and Disability Code of Practice says that LAs must not cease to maintain the EHCP simply because the young person is aged 19 or over (paragraph 9.200).
LAs should also not cease to maintain just because the young person has finished their current course at school or college;
“Young people with EHC plans may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood” (paragraph 9.151).
For whatever reason the LA decides to cease to maintain the EHC plan, the LA must first:
- consult with the child’s parent or young person as well as the head teacher or principal of the school or college being attended;
- issue what is called a ‘cease to maintain notice’ – this means a notice in writing to the parent or young person telling them that the LA wants to cease to maintain the EHC plan and setting out the reasons why.
If the LA does not follow these steps, or simply states that they are going to stop funding the EHC plan rather than issuing a cease to maintain notice, this is not lawful.
If a cease to maintain notice is issued, the LA is not allowed to simply stop funding the provision straight away.
The parent or young person has a right of appeal to the SEND Tribunal.
Lodging the Appeal
You will need to fill out various forms and send supporting evidence to the SEND Tribunal. Remember to keep copies of all of your paperwork (letters, reports etc.), so you have a clear record of everything you’ve sent.
You can submit your appeal either by email or by post. If you send it by post, we recommend that you send it by recorded delivery.
The appeal form
You will need to fill in an appeal form, which you can obtain from the SEND Tribunal’s website. Make sure you are using the right form depending on whether the appeal or claim concerns a child or a young person.
If you are also bringing a claim about disability discrimination, there will be a separate form for each claim. The two claims can later be consolidated so that they are both dealt with at the same hearing.
In the boxes on the appeal form, fill in:
- Your child’s name and date of birth, or yours if you are a young person;
- Your name and address;
- Details of anyone else who has parental responsibility.
- Any special requirements to make the process accessible to you: say here if, for instance, you need documents translated, wheelchair access or a BSL interpreter.
- The name of your LA and the date of the decision you’re appealing against or the date of the final EHC plan
In the appropriate section of the form, you will also need to explain which decision you’re appealing against or which parts of the EHC plan you disagree with. This is called your reasons for appeal.
For more information on what to send with your appeal form please download a copy of this helpful document from the SENDist Tribunal service: SEND 37
The 2 most common forms filled in to lodge an appeal at SENDist Tribunal are:
The SEND 35A: This form should be used to appeal against the refusal to complete an EHC Needs Assessment.
The SEND 35: This form should be used for the following reasons:
- The LA have refused to Issue an EHCP after a needs assessment has taken place.
- You disagree with what the LA have stated regarding your child’s needs in Sec B.
- You disagree with what the LA have stated regarding how your child’s needs will be met in Sec F.
- You disagree with the school, college or other education provision named in Sec I of the EHCP.
Below you will find 2 helpful videos explaining step by step how to complete the SEND 35 and SEND 35A forms courtesy of Suffolk SEND IASS.
What should I send with the Appeal Form?
With the completed and signed form send the following:
- A copy of the letter the LA sent you that told you of its decision
- Your mediation certificate
- The evidence supporting your arguments
- A list of all the documents enclosed with the application (it will be helpful to the SEND Tribunal if you put your evidence in chronological order, and then write out a list explaining what each document is).
Don’t send original documents, send photocopies or scans. Keep a copy of everything you send, including the form.
You must send in enough information for the LA to be able to respond.
- Keep it short and to the point.
- Separate your points into paragraphs.
- Number your paragraphs or organise them under headings.
- Refer to any evidence that backs up your points. (You can send more evidence later and you should say if you know there is evidence you don’t yet have but intend to send later.)
- Refer to the legal issues.
- Don’t get bogged down on history. If there is a long history of difficulties between you and the LA let the evidence (e.g. letters between you and the LA) speak for itself.
What Happens next?
After you have sent in the appeal form and all attached documents, the SEND Tribunal aim to reply within 10 working days. You will receive a registration letter.
(Tribunal is not open on weekends, between 25 December to 1 January and are closed for the whole of August)
In this registration letter, the SEND Tribunal will tell you about important dates. It will tell you when the LA are required to respond to your appeal, give you a deadline to send further evidence and tell you when the hearing date will be.
The SEND Tribunal formerly aimed to set a hearing date approximately 12 weeks from the date your appeal was registered, but the Tribunal is now prioritising urgent cases and many will be adjourned until September/October 2022.
At the same time, the SEND Tribunal will write to the LA, sending them a copy of your appeal documents. The LA will need to submit its response to the SEND Tribunal by the deadline in the registration letter you receive which is usually within 30 working days of receiving your appeal documents from the SEND Tribunal. The LA must state whether it opposes your appeal and why. The LA must send you a copy of its response at the same time: tell the SEND Tribunal if you are not sent this.
Ensure that any evidence you didn’t send in with your appeal form is sent to the SEND Tribunal by the deadline set. Always send a copy to the LA at the same time.
At least 10 working days before the hearing, the LA will send you and the SEND Tribunal the ‘bundle’, a page-numbered set of the documents the SEND Tribunal has been sent in the case.
The Registration letter
When you are sent the SEND Tribunal’s registration letter it will contain details of the timetable for your appeal.
The registration letter should inform you of:
- the hearing date (or in the case of a refusal to assess appeal, the date the appeal will be considered);
- directions for when you and the LA need to submit your evidence and other important steps, such as the deadline for sending out the appeal bundle
- the fact you have a right to request the appeal be actively case managed by a member of the judicial team.
You should read these very carefully and note the important dates.
The SEND Tribunal should also send the parent or young person copies of:
- An Attendance Form or, from April 2022, the new Case Review Form to return to Tribunal;
- A Request for Changes Form.
IPSEA have provided more information about both of these forms in their SEND Tribunal section preparing the case before the hearing.
The Working Document
A working document is the final version of the EHCP written by the local authority and the parent carers or young person before they go to the SENDist Tribunal hearing. It shows:
- changes to the wording the education, health and care plan that each side wants or can agree
- any issues that the tribunal must decide at the hearing
The Tribunal recommends a standard key (shown to the right ) to the document which will show each party’s position.
SENDist Tribunal have produced a helpful document to support you in preparing and checking the working document. Please CLICK HERE:SEND 23, Working Document Guidance
The Hearing.
Approximately 10 working days before the hearing you will be informed of the venue and exact time of the hearing.
Before the Covid-19 pandemic, the Tribunal would be held at a venue within 2 hours of your home. But since the outbreak of Covid-19, most SENDist Tribunal hearings have moved online, which has received positive feedback from families who find this more accessible.
SENDist appeals are heard by a panel of three decision-makers which includes a legally qualified chairperson and two lay-members who will have relevant practical experience.
The child or young person is entitled to attend and give evidence to the tribunal. The parent must inform the SEND Tribunal in advance that they intend to bring their child. If the child cannot give evidence face to face. it is a good idea to find a way to ensure their voice is heard:
A short video of them speaking or,
A letter written by them.
Parents can either self-represent or engage the help of a lawyer to present their case.
SENDist Tribunal is designed to be as parent-friendly as possible, but they can still be really daunting and the process isn’t always straightforward depending on your child’s needs.
For more information on what to expect at the Tribunal we have 2 helpful videos below:
Welcome to the SENDist Tribunal
What happens at a SENDist Tribunal video hearing
After the Hearing
The SEND Tribunal must provide both yourself and the Local Authority with:
- a decision notice stating the SEND Tribunal’s decision;
- written reasons for the decision; and
- notification of any rights of review or appeal against the decision; and
- the time within which an application must be lodged,
as soon as is practicable after the hearing.
Generally you will receive the decision and reasons in writing within ten working days from the hearing date.
If the SEND Tribunal orders the LA to carry out an action (such as start an EHC needs assessment or issue an amended EHC plan), the LA must do so within the deadlines set out in Regulation 44 of the SEN and Disability Regulations 2014.
SENDist Tribunal have produced a helpful document to explain what the Local Authority should do to comply if an order has been given. Please CLICK on the SEND 18 image to the right.
If you are unhappy with the outcome, in certain limited circumstances you can appeal the decision of the SEND Tribunal.
Organisations providing further advice & support
Child Law advice
This charity provides ‘legal advice and information on family, child and education law.
Here you will find information on Legal Aid, qualifying criteria and an online calculator to calculate whether you qualify on financial grounds for legal advice. legal aid for educational law.
LawWorks
This charity provides FREE legal advice to individuals or not-for-profit organisations that are NOT ELIGIBLE for LEGAL AID and are on a low income.
LawWorks provide ‘pro bono’ legal advice to all those that qualify.
Please visit the legal advice for individuals section on the LawWorks website to learn about various services available.
Alternatively, to search for legal advice clinics near you please click here.
SOS!SEN
SOS!SEN provide FREE information, advice and support with legal issues and procedures.
Information sheets include; Appeal against refusal to assess for an EHCP (Where limited evidence is available), and many more.
IPSEA
This charity provides FREE ‘independent legally based advice and support for the families of children with SEN and/or disability.’ IPSEA website.
IPSEA provide information on going to SEND Tribunal including SEND Tribunal Resources
CEREBRA Legal Directory
This charity provides information organisations that offer legal advice and support.
For more information please click here.
Coram Children’s Legal Centre
Coram Children’s Legal centre specialises in children’s law and legal rights. It provides FREE legal advice and information.
For further information please click here.
Coram Voice
This charity supports care experienced children and young people to have a voice whilst in children’s services by ensuring that the care system provides them with a positive experience.
The charity upholds the children and young people’s rights through an advocacy service which caters to their needs and ensures that their voice is heard. For further information please click here.
Equality Advisory Support Service (EASS)
Equality Advisory Support Service (EASS) is a national helpline providing information, advice and support relating to issues on equality and human rights.
For advice and information on discrimination and human rights contact: EASS
Equality and Human Rights Commission (EHRC)
You can find useful information about discrimination on the EHRC website at www.equalityhumanrights.com.
Equality Act 2010
The Disability Discrimination Act 1995 (DDA) has been replaced by the Equality Act 2010 which protects disabled people from being discriminated against within society.
Disabled persons rights in education