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.
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.
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.
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 is due, but we’re involved in an ongoing appeal to the SEND Tribunal about the EHC plan. How does this affect the process?CharlotteThe 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.
A parent can’t appeal against anything they had agreed to in the draft EHCPCharlotteThis 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 need to have a solicitor in order to appeal to tribunalCharlotteYou 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.
It will go against parent if they do not go to mediation before appealingCharlotteThis 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.
You must go to the LA’s ‘way forward’ meeting before appealingCharlotteA '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.
You must go to a mediation meeting with the LA before appealingCharlotteThis 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.
Find out more:
- Download our free info sheet on Appealing to Tribunal
- See the Government’s free booklet on How to Appeal to SENDIST
- View SENDIST’s videos on Appealing
- Take a look at our pre-recorded webinars (£10) on Appealing a Refusal to Assess, a Refusal to Issue, or the Contents of an EHCP
- See our SOS!SEN booklet on Appeals (£6)
- Search the ‘Appeals’ category in our Help Centre