How to Appeal to the SEND Tribunal

What is the SEND Tribunal?

The SEND Tribunal, also known as the First-tier Tribunal (Special Educational Needs and Disability), is an impartial Tribunal dealing with appeals from parents and young people regarding decisions made by Local Authorities (LAs) concerning the special educational needs of children and young people. Additionally, it handles claims of disability discrimination by schools in context of pupils.

If you are dissatisfied with a decision related to an Education, Health and Care (EHC) needs assessment or an EHC plan, you may have the right to appeal to the SEND Tribunal.   

The SEND Tribunal operates under the framework of the law. The main legislation in question is the Children and Families Act though there are related Regulations. They also refer to the SEN Code of Practice and relevant case law.

The Tribunal is an evidence based jurisdiction. This means that when reviewing cases, the SEND Tribunal examines the presented evidence and assesses whether the LA's decision aligns with the law and the Code. The Tribunal makes its determinations based on the evidence available.

The SEND Tribunal offers a complimentary guide titled "How to Appeal" along with additional informational documents, all of which are accessible through their official website. Furthermore, the SEND Tribunal has created a series of videos that provide insights into the process of appealing to the SEND Tribunal.

Types of Appeal

The types of appeals that can be made to the SEND Tribunal are:

• Where a Local Authority is refusing to assess a child or young person
• Where a Local Authority is refusing to issue an Education, Health and Care Plan (EHCP) following an EHCNA
• Where a Local Authority is ceasing to maintain a child or young person’s EHCP
• Against the contents of an EHCP

The SEND Tribunal Appeal Process

Local Authority Decision Letter

In the SEND Tribunal appeal process, your process begins with the receipt of a Local Authority decision letter. When a decision is made by the Local Authority regarding the special educational needs of your child, they should tell you the details of this decision within a formal letter. Importantly, this decision letter not only outlines the specifics of their decision but should also provide information about the appeals procedure and the availability of mediation services. Possessing this letter is of utmost importance, as it serves as the cornerstone of your right to appeal. If a decision is made and you do not receive a copy of an official decision letter, then it is worth seeking legal advice on what options are available to you.  

Who Can Appeal?

Where the appeal relates to a child under 16, it is the parents’ right to appeal. If the parent does not have parental responsibility then the right will belong to the person who retains this responsibility in law.

However, the dynamics change when a young person reaches the age of 16. In this scenario, the appeal is instituted in the name of the young person themselves if they are considered to have capacity to take the appeal. Yet, it's important to acknowledge that some young people may not possess the capacity to independently bring an appeal. In such instances, a parent or guardian can assume the role of an alternative representative.

Right of Appeal and Mediation

Before starting the appeal journey, there's an essential preliminary step: that is to consider mediation. The offer of mediation can be a pivotal feature of the SEND Tribunal process and is designed to foster dialogue and potentially resolve disputes without the need for formal appeals. To initiate mediation, refer to the contact details provided in the Local Authority's decision letter.

Mediation is not for everyone or for every case. Our Education Lawyers are happy to advise families on the pros and cons of mediation and have experience attending mediation sessions with families.

Whether you choose to participate in mediation or decide to proceed directly to the formal appeal process, you are required to obtain a mediation certificate. This certificate is provided by the mediation service detailed within your decision letter. If you do go to mediation, the certificate will be issued after your mediation meeting. If you decide not to proceed with mediation then it should be issued to you at that point in time.

Armed with both your decision letter and mediation certificate, you are ready to commence the appeals process. The crucial timeframe to bear in mind is that your appeal must be lodged within two months from the date of the original LA decision letter or within one month of the date on  the mediation certificate, depending on which of these two dates is the latest. Importantly, this timeline is measured from the date on these documents, not from when you physically receive them.

For example:

• Date of Local Authority’s decision letter 1 March
• Last day to obtain a mediation certificate 30 April 2024
• You obtained the mediation certificate on the 30 April 2024
• Last day for your appeal to be lodged with the Tribunal 29 May 2024

SEND Appeal Documents

Once you've successfully acquired both your mediation certificate and the decision letter from the Local Authority, the next phase entails the completion of the appropriate SEND Tribunal form. These forms are  available, and you can access them online through the Special Educational Needs and Disability Tribunal forms. Within these forms, you have the option to articulate your grounds for appealing the Local Authority's decision. You can choose to provide these reasons directly within the form itself or attach them as a separate document, as per your preference and the complexity of your case.

Subsequently, you are required to send your completed SEND Tribunal form, alongside the mediation certificate, Local Authority decision letter, and any other relevant documents to the Tribunal. These additional materials may include school reports, diagnostic letters, or recent assessments from specialists such as Educational Psychologists, Occupational Therapists, and Speech and Language Therapists. All of these should be sent to the Tribunal via email where possible. The precise email contact details for submission can be located on the Tribunal form, ensuring a streamlined and efficient process.

Following the submission of your appeal bundle, the SEND Tribunal will commence its review of your case. Within approximately 20 working days, you can anticipate correspondence from the Tribunal, providing you with further details and guidance on the progression of your appeal. This should include a set of deadlines for both you and the Local Authority. It should also include a hearing date.

The Decision?

The Tribunal’s decision is legally binding and should be complied with (though there are some exceptions where health and social care are ). This decision is effectively final and cannot be challenged simply because a party to the appeal disagrees with it. However, if there is evidence that the Tribunal have applied the law incorrectly and if there are circumstances where the facts have changed significantly since the hearing then an appeal to the Upper Trubunal might be necessary and appropriate.

Can you suggest which one would work here, as I have checked and not sure which will work best?

Our SEND Education Lawyers Can Help You

At Simpson Millar, our team of dedicated SEND education lawyers are committed to providing you with comprehensive guidance and support throughout your journey in navigating the Special Educational Needs and Disability (SEND) system. We understand the unique challenges and complexities that families and individuals face when dealing with SEND-related matters.

Expertise: Our legal professionals have in-depth knowledge of SEND law, including the Children and Families Act 2014 and associated regulations. This expertise allows us to offer tailored advice and representation, ensuring that your rights and the rights of your child are maintained.

Appeals Support: If you're contemplating an appeal to the SEND Tribunal, our lawyers have a proven track record of successfully representing clients in these proceedings. We can guide you through the appeal process, from formulating your case to representing you during the hearing.

Mediation Assistance: We can help you explore mediation as an alternative to formal appeals. Our lawyers can advise you on the mediation process, attend mediation sessions with you, and work towards amicable resolutions.

Dispute Resolution: When disputes arise with Local Authorities or educational institutions, our legal team is well-equipped to negotiate on your behalf, striving for solutions that meet your child's educational needs.

Education, Health and Care (EHC) Plans: We assist in securing EHC needs assessments and plans, ensuring that these documents accurately reflect your child's needs, and that appropriate support is provided in a suitable setting.

When you choose Simpson Millar, you're enlisting the services of a legal team with a reputation for professionalism, dedication, and success in the field of SEND education law. We're here to stand by your side, champion your cause, and secure the best possible outcomes for you and your child. Our team are ranked as Tier 1 by both Chambers and Partners and Legal .

Upper Tier appeals: When the Tribunal have made a legal error and there is a need to challenge further.