SENDIASS guide to SEND tribunals

SENDIASS guide to SEND tribunals

Recently, Amaze SENDIASS has heard from many families who are worried about long waits to have an appeal heard by the First-Tier (SEND) Tribunal.  With waits of around 50 weeks for face-to-face hearing dates, it’s extremely worrying for parents and carers who are anxious to get decisions made as soon as possible, so we have produced some SENDIASS advice about the tribunal process.

What is the SEND Tribunal?

The First-Tier Tribunal (Special Educational Needs and Disability) is often known as the SEND Tribunal. It hears appeals against local authority decisions about the special educational needs of children and young people. This includes appeals where the local authority (LA) has refused to carry out an EHC Needs Assessment, refusal to issue an EHC plan, its content or provision of a plan and/or the education setting named in the plan. 

What are the options before lodging an appeal?

• Informal meeting with the LA and sometimes the school – this might be offered to discuss decisions and your concerns as well as 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. 
• Mediation – when the LA sends a decision letter, they’ll also inform you of your right to mediation. This must be considered before you lodge an appeal, except in cases where the appeal is only about the education placement named in Section I of the plan. Mediation gives you a chance to discuss things with the LA with a trained mediator facilitating the meeting. It’s important to note that decisions are not binding, although SEN managers in both East Sussex and Brighton & Hove say they are committed to participating honestly in mediation. Mediation should be arranged within 30 days of your request, so for some families with straightforward cases, this can be a swift way to try to get a resolution without a long wait for tribunal. More about mediation: Mediation | (IPSEA) Independent Provider of Special Education Advice 

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 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.  

Some appeals are being prioritised by the tribunal: 

• Age-phase transfers – those who are moving from one stage of education to the next, including early years to school, primary to secondary and secondary to post-16 provision. 
• Out of education – those who are waiting for a placement to be agreed and are unable to access education because of their physical or mental health, exclusions or other reasons.  

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 and also in the subject line of your email when you submit it so that the tribunal can consider it as a priority.  

If you have already appealed for an age-phase transfer or your child is out of education and your hearing date is many months away, you can submit a Request for change to ask for the date to be brought forward, but you must get agreement from the LA before this can be considered.  

You can read more on appeals here: Appealing to the SEND Tribunal | (IPSEA) Independent Provider of Special Education Advice 

Paper hearings

Paper hearings are another alternative to consider. Decisions are made only on the evidence in the paper evidence, or bundle, submitted, so there’s no chance for you to talk to the judge to clarify things or call on any experts to give evidence. This option needs careful consideration. For example, 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 families to seek further advice before choosing this option. See: Paper Hearings – SEND Advice Surrey 

Our tips

• Keep communicating with your school and local authority case worker/assessment and planning officer.  
• SEN Support – if your child doesn’t have an EHC Plan, keep talking to the school about their needs to ensure that their SEN Support plan is kept up to date and provision is being made. 
• Gather evidence – keep a diary with brief notes of anything that may be relevant, such as incidents at school, or school avoidance and submit it to the tribunal before the cut-off date.  
• If there is evidence that the current setting is not meeting need and you are awaiting a decision on an alternative placement, keep your child on roll at the school even if they are struggling to attend.  
• EOTAS – where children cannot attend because of health conditions/including mental health and there is medical evidence (usually from a consultant/specialist) to confirm this is the case, the LA still has a duty to ensure that the child receives an education. It may be necessary to consider Education Other than at School (EOTAS) in the interim. It’s important to note that EOTAS is not the same as ‘elective home education.’ Read more in our EOTAS fact sheet (pdf 750kb)
• What about elective home education? This is not the same as EOTAS and should only be considered if you want to be solely responsible for your child’s education, because taking your child off the school roll to home educate removes the LA’s duty to meet your child’s special educational needs. 
• Talk to Amaze SENDIASS. If you have specific queries or questions that are not answered in this article, contact us for further advice and support. Email: [email protected], or call: 01273 772289.