Appeals and disputes
Sometimes families and the local authority disagree. If it proves impossible to resolve your dispute informally, in some cases, you can then choose to appeal to the SEND tribunal to change the local authority’s decision, particularly in relation to education, health and care (EHC) plans. The decision of the tribunal is legally binding on matters relating to education.
Informal resolution
An informal meeting with the local authority (LA) and sometimes the school might be enough to give you the space to explore their decisions and your concerns and consider options to moves things forward. You can suggest having a meeting if there is scope for negotiation at any stage. It is also possible for informal negotiations to continue when an appeal is lodged.
When the LA sends a decision letter about your child’s EHCP, they will also inform you of your right to free mediation.
Mediation
Mediation is a chance for you to have a meeting with the LA where an independent mediator will try to help you both to come to an agreement. Locally, mediation is provided by the Global Mediation Service.
It is not compulsory to attend mediation but, if you later wish to go to appeal, you will have to provide evidence that you have considered it. In this case, ask for an exemption certificate from the mediation service.
If you are just appealing the school or ‘placement’ on your child’s EHCP, you will not need to consider mediation. However, we would advise you to strengthen your case by also appealing the SEN needs and provision sections of the EHC plan when lodging a placement appeal. By doing that you would be required to attend mediation or obtain a mediation certificate.
At the mediation meeting, the LA should send someone with the authority to make a decision, but it may be a staff member with access to a manager who can make the decision during the session.
It’s important to note that decisions made at mediation are not legally binding, although SEN managers in both East Sussex and Brighton & Hove have committed to participating honestly in the process.
Mediation should be arranged within 30 days of your request so, for families with straightforward cases, this can be a swift way to move matters forward without the long wait for tribunal, particularly when the waiting list for a tribunal is so long.
If you and the LA can’t reach an agreement through mediation, you may decide to appeal.
Read more in our SENDIASS Guide to Mediation
Or: Mediation | (IPSEA) Independent Provider of Special Education Advice
Appealing to the SEND Tribunal
What is the SEND Tribunal?
The First Tier Tribunal (Special Educational Needs and Disability) is an independent national tribunal that specialises in appeals against local authority decisions about EHC needs assessments or EHC plans. It also deals with some claims of unlawful disability discrimination in education. There is no charge for parent carers or young people to launch an appeal.
You can appeal to the SEND tribunal if:
- The LA refuses to assess your child after you or the school have requested an assessment
- The LA decides an EHC plan is not needed after they have assessed your child
- You disagree with the EHC plan sections that describe your child’s SEN, the special educational provision specified, or the school (or type of school) named
- You disagree with an amendment to any of these sections
- The LA refuse to re-assess your child
- The LA decide not to amend the EHC plan after an annual review or re-assessment
- The LA decides to stop maintaining the EHC plan
In these cases, the tribunal can change the LA’s decision.
You can also appeal the health and social care parts of the EHCP, but only if you are also launching an education appeal. The decisions of the tribunal relating to health and social care are not legally binding, but an LA or Health service would need to provide an extremely strong case for refusing to follow the recommendations of a tribunal.
Who lodges the appeal?
If you are the parent of a child aged 0-15 then you can lodge an appeal with the tribunal. If the appeal is concerning a young person aged between 16-25, and they have mental capacity, they can lodge an appeal themselves. They may choose to ask an advocate or representative to act on their behalf. If they do not have the capacity to lodge an appeal themselves then a representative can lodge the appeal on their behalf. This is usually their parent.
While the tribunal encourages parents to represent themselves at appeals and will take care to treat you fairly, many have found it quite a challenging experience. If you cannot find someone able to help you prepare your appeal, you may decide to look into instructing a solicitor but be aware, this can be costly. If you take this route, make sure they are a specialist in education law. You may qualify for free legal aid, based on income, savings, or the type of benefits you may claim, so be sure to ask about this, and the fees, before going ahead.
How to lodge an appeal
If you wish to go to tribunal, you must obtain a mediation certificate from Global Mediation to show that you have attended mediation or considered this option. Make sure you get your appeal to the SEND Tribunal within two months of the date of the LA’s decision letter or one month from the date of the mediation certificate, whichever is later. If that date falls in August, then you have until the first working day in September.
When you lodge your appeal, you must fill in a SEND35/35a form. If your child is out of education, or they are moving on to the next stage of their education, it is important to make this clear on your appeal form so that the tribunal can consider it as a priority.
You should also record it in the subject line of your email when you submit it. The Tribunal will register your appeal and will send you an appeal number and a set of deadlines which you will be expected to follow, including the date of the actual tribunal hearing.
The tribunal hearing
Some cases never get as far as a hearing as the parent carer and the LA reach an agreement beforehand, or the LA concedes and agrees to the parent carer’s request.
If you do have a hearing, it is important to remember that tribunal hearings are designed to be accessible to parent carers and young people who may not have legal training or legal representation. It is not held in a courtroom and may feel like a formal meeting.
Since the pandemic many tribunals have been conducted online, by video, but you can request an in-person hearing, giving reasons why this is your preference. A judge leads the tribunal sitting with one or two members who are experts in SEN, health or social care. They will make sure that you understand what is happening and that you are able to participate. See some useful information about Video hearings at the Special Educational Needs and Disability Tribunal – YouTube
Some tribunals may be conducted as a ‘paper hearing’ where the judge and members will only review the written evidence and you and the LA are not required to attend. They are routinely used for appeals over refusal to assess but may not be suitable for more complex cases. Although the waiting time for a paper hearing is shorter, you’ll have less input in the process and so we would advise you to to seek further advice before choosing this option.
Preparing for the tribunal
You will need to gather your evidence and decide whether you will need to call any witnesses. Aim to have evidence which supports all your views.
Any evidence that you or the LA gather needs to be sent to the tribunal and shared so that all parties know what is being submitted. Everything is gathered in a ‘bundle’ which can change as you get nearer to the tribunal hearing. The LA will send you an electronic bundle ten days before the hearing.
During the lead up the tribunal, you and the LA will have been negotiating the ‘working document’ with you in order to identify, and try to reduce, the number of outstanding issues, so the Tribunal is clear about what needs to be decided on at the final hearing.
Amaze SENDIASS has produced a series of in-depth guides covering each type of appeal. Visit our In-depth guides page.
The tribunal decision
The judge will announce their ruling around 10 days after the hearing. If you are successful, the LA will have five weeks to issue you with an amended EHC plan and to make any arrangements that are required to get the associated support package in place.
If you are unsuccessful at tribunal, you cannot appeal simply because you disagree with the decision. The only ground for appeal is if you believe there was an error of law, so you may need to consult a specialist lawyer.
Disability Discrimination cases
If you feel your child has been discriminated against on the grounds of their disability, you should start by complaining to the head teacher and governing body of the school. If this does not resolve the matter, you can make a claim of unlawful discrimination against a school on behalf of your child to the SEND tribunal. Some claims of unlawful discrimination will go to admissions appeal panels or, for exclusions, to independent appeal panels.
Read more about disability discrimination.
Get advice from Amaze
Our SENDIASS advice team can give you one to one advice on anything to do with education and your child or young person’s special educational needs and/or disabilities (SEND).
