The SEND Tribunal – What You Need to Know

Yolanda Shamash
Author:
Yolanda Shamash
Education and Community Care Paralegal
Date:
22/04/2022

If you are a parent of a child with special educational needs and/or disabilities, you may well have heard of the Special Education Needs and Disability (SEND) Tribunal.  

But what is the SEND Tribunal, what are its powers and why would a parent need to go to the SEND Tribunal?

The SEND Tribunal is similar to a court where families can challenge decisions made by Local Authorities. It is intended to be parent friendly, without court fees and the risk of paying the other side’s costs. The SEND Tribunal also gives parents the opportunity to represent themselves if they choose to.

If you need further advice about any stage of the SEND Tribunal process, get in touch with our expert Education Lawyers.

Call us on 0808 239 9764 or request a callback

When Can You go to the SEND Tribunal?

There are four kinds of appeal relating to Education, Health and Care Plans (EHCPs) that can be taken to the SEND Tribunal:

      1. Appeal of a ‘Refusal to Assess for an EHCP’ decision by a Local Authority - this applies when a request has been made for an Education, Health and Care Needs Assessment (‘EHCNA’) of your child, and the Local Authority has decided not to assess them.
      2. Appeal of a ‘Refusal to Issue an EHCP’ decision by a Local Authority - this is when the Local Authority has conducted an EHCNA but has refused to then issue an EHCP.
      3. Appeal of an EHCP – if you believe that the contents of your child’s final EHCP does not accurately reflect their needs, or the provision and support required to meet these needs, you can challenge it through an appeal of an EHCP.
      4. Appeal of a Local Authority decision to ‘Cease to Maintain’ an EHCP - this is when your child has previously had an EHCP, and the Local Authority has given a decision to ‘cease to maintain’ i.e. put a stop to it, so your child will no longer have an EHCP.

You can also go to the SEND Tribunal with claims of disability discrimination against a school.

What do You Need to go to SEND Tribunal?

When a Local Authority makes a decision not to assess, issue or maintain an EHCP, or when a Local Authority finalises an EHCP, it should provide a formal letter setting out its decision or finalisation of the plan. This letter should contain:

  • a right of appeal;
  • information on mediation.

You will need to provide a copy of this letter to the SEND Tribunal when lodging your appeal. Any appeal needs to be lodged within two months of the decision letter or within one month of the date on your mediation certificate (whichever is later).

You will also be expected to provide evidence to support your appeal, if not at the outset, then throughout the appeal. This may include:

  • expert reports – this could include records from Educational Psychologists, Occupational Therapists, Speech and Language Therapists on your child’s needs;
  • relevant medical reports;
  • school reports;
  • relevant correspondence between schools, the Local Authority and professionals.

How Long do Appeals at the SEND Tribunal Last?

All appeals are different, and the length of an appeal depends on multiple factors. These include the SEND Tribunal’s capacity and whether you make any requests for an extension or postponement throughout the process.

A timetable for the appeal will be set out in a registration letter provided by the Tribunal. You should receive this within a few weeks of the appeal being lodged.

The registration letter usually sets out:

  • the final evidence deadline for the appeal;
  • the date the Local Authority has to provide ‘bundles’ containing copies of relevant documents to the Tribunal by;
  • any other deadlines in the appeal;
  • any ‘Telephone Case Management Hearings’, including meetings with the Local Authority and the Tribunal to make progress in the appeal;
  • the final hearing date.

In ‘Refusal to Assess’ or ’Refusal to Issue’ appeals, it is common for the Tribunal to decide the appeal “on the papers”, meaning they will review the documents submitted by both parties and make a decision without a final hearing.

If this is not your preference, you can request that the appeal is not considered in this way when lodging the appeal. You can also put in this request later if circumstances change and you feel that it would be unsuitable for a decision to be made without oral evidence.

If your appeal does involve a final hearing, you are allowed to have up to three expert witnesses. These might consist of educational experts who have assessed your child or a representative from the school you wish your child to attend. There is also the option to request more witnesses if you need to.

Once the final hearing or consideration of the papers has taken place, the Tribunal issues its decision – usually within two weeks of them coming to a conclusion. This is a written decision which is sent to both parties at the same time, typically by email.

What is the SEND Tribunal Process Like?

The SEND Tribunal is designed to be a “parent friendly process”. Theoretically, it should be clear enough for the everyday person to understand.

But there is still a level of legal jargon involved and many parents understandably find it difficult to navigate the legal, technical and practical issues that can come up throughout the appeals process. This is especially relevant when an appeal relates to important and sensitive matters around a child’s wellbeing and education.

Additionally, when Local Authorities instruct solicitors and barristers in appeals, this can feel daunting for parents who won’t necessarily have the legal knowledge or time to prepare for hearings in the same way.

Our Education and Children’s Rights team has extensive knowledge of the appeals to SEND Tribunal process. We have experience of assisting parents both by representation in the appeal, and by providing ad-hoc advice throughout the process.

For further advice tailored to your situation, get in touch with us today.

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