Appealing a Decision

You may well have heard the terms ‘appealing’ or ‘going to Tribunal’, when talking about EHCPs. What does it mean?

Parents and young people have a right of appeal to the Special Educational Needs and Disability Tribunal (SENDIST) when the LA makes one of the following decisions relating to a child or young person’s special educational needs.

Once you have received the notification of that decision in writing, you have two months to register an appeal, or one month from the date of the mediation certificate, whichever is the longer.

A boy in a suspension harness is taking part in a physiotherapy session. A physiotherapist wearing a blue uniform is working with him. There are coloured balls in a basket and wooden rails on a blue wall.

You can register an appeal to the Tribunal about the following:

  • decision not to carry out an assessment or re-assessment
  • decision not to issue an EHCP
  • description of needs, provision and school/institution or that no school/institution is named
  • an amendment to these elements of the EHCP
  • a decision not to amend a plan following a review or reassessment
  • decision to cease to maintain an EHCP

There is no charge made by this service.

Who is SENDIST?

The First-tier Tribunal (Special Educational Needs and Disability) (SENDIST)  is an independent national tribunal which hears

  • parents’ and young people’s appeals against LA decisions about the special educational needs of children and young people
  • appeals against disability discrimination by schools and LAs.

It 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.

The SEND Tribunal also has the extended power to make recommendations about health and social care issues in EHCP appeals (except refusal to secure an EHC Needs Assessment).

The SEND Tribunal looks at the evidence put before it and decides whether the LA decision followed the law and the Code of Practice. It will make a decision based on what is right for the child or young person at the date of the hearing, based on the evidence it has to consider.

Parents can appeal these decisions themselves, or engage an advocate, representative or solicitor to support them.

How do I make an appeal?

Appeals are lodged via the Government website. You are directed to one of two forms which is the formal way to lodge the appeal, together with a number of other documents. Further details are on the forms.

Refusal to Secure a Needs Assessment – Form SEND35a
All other appeals – Form SEND35

Take a look at the tools and guidance below. This includes a comprehensive fact sheet about what to consider when appealing, and the process of an appeal.

We also have a range of tools that provide guidance on how to set out your Grounds for Appeal, which is basically, how to set out your case and evidence. The SEND 35 forms do ask questions about your appeal, but we recommend a separate document to accompany your submission.

Mediation

Before submitting your appeal, you have an opportunity to mediate with the LA. You will need to contact the mediation service to either arrange a meeting, or to request a mediation certificate. You are not obliged to attend a mediation meeting and can simply request the certificate. You will not however be able to submit your appeal without that certificate.

Common Myths and Questions

The annual review must take place within 12 months of the last review, or of the date the EHC plan was first issued.  The appeal doesn't impact this happening. It could be an opportunity for some matters to be resolved that you are appealing - and the annual review can and should include elements of the Plan which aren't being appealed and/or can't be appealed, e.g. section E. If the LA issues a new draft amended EHC plan after the annual review, this can be wrapped into the appeal, and you can request to treat the draft amended EHCP as the working document in the current appeal, rather than having to register a new appeal.
This is not the case. Once the final EHCP is issued, parents can appeal content in Sections B (needs) and F (provision) as well as health and social care content.
You don't need to have any legal representation in order to appeal to tribunal. The Tribunal itself is set up to be an accessible way for parents and young people to appeal. Judges and panel are used to parents representing themselves. You can be represented by a representative/advocate or solicitor, if you require.
This is not the case. The option is there to attend mediation, should you wish. But parents are not obligated to attend ahead of appealing. They do need to contact the mediation service in the timescales set out in the decision letter to request a mediation certificate.
A 'way forward' meeting is not part of the statutory process and you are under no obligation to attend this meeting ahead of appealing. This may be the LA policy or process, but there is no requirement under the Code of Practice 2015 for you to attend.
This is not the case. You are not required to attend a mediation meeting before appealing. However, you are required to contact the mediation service and obtain a mediation certificate, before you are able to submit your appeal.  It is your choice whether or not to attend mediation. You will be issued with a certificate whether you attend or not.

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