Do Parents Need Legal Advice For SEND Tribunals?


The Law Of…getting the advice you need

Last month, the Department for Education (DfE) and Ministry of Justice (MOJ) published a report reviewing the arrangements for Disagreement Resolution in Special Educational Needs and/or Disabilities (SEND) Tribunal cases.

Samantha Hale, Associate Solicitor in Education and Community Care, investigates the findings of this report.

What Does The Report Cover?

The aim of the report was to review the arrangements for Disagreement Resolution in the First-tier Tribunal (Special Educational Needs and Disability) – also known as the SEND Tribunal.

In particular, the DfE and MoJ wanted to find out whether the new and existing ways of resolving issues relating to the educational needs of children with SEND were effective for children, young people, and their families.

The report also considers the use of legal support during the process and why it's necessary for some families:

  • It highlights the "difficult process of putting together a legally watertight case" without legal support.
  • Parents described the process of appealing as "very stressful and emotionally draining."
  • Parents sought legal help with the SEND tribunal when they felt "unable or unwilling to deal with the paperwork and administration themselves."

The report also explains how parents and young people who were eligible for legal aid "valued that help in preparing their case, including the opportunity to obtain additional assessment reports if needed."

How Has The Government Responded To The Report?

In its response to the report, one of the issues the Government addresses is over the use of legal representation.

It suggests that the SEND tribunal "aims to be accessible" to all so that "it should not be necessary to employ legal support when making or defending an appeal."  The Government also promises to "support services to signpost families to information on SEND law to ensure they feel confident and able to represent themselves at the First-tier Tribunal SEND."

Some of the ways in which the First-tier Tribunal is supporting families includes offering them a helpline and a video focusing on the appeals process on the Ministry of Justice's YouTube channel.

Is The YouTube Video A Good Substitute For Seeking Legal Advice From An Expert?

The video guidance is split into 6 chapters, although there doesn't appear to be a link to chapter 3.

Whilst the videos offer you an understanding of what you can expect at the hearing, they don't prepare you for the amount of work that is required on an appeal before the hearing stage.

"The videos also seem to contain outdated information, which is a big problem", Samantha explains.

"For example, they refer to the panel being made up of 3 people, but the majority of appeals are now dealt with only 2-person panels. There are also references to Statements of SEN – these have to be replaced with Education, Health and Care Plans (EHCPs) within the next 12 months."

They also fail to explain that for an appeal regarding a Refusal to Assess, the Tribunal will automatically register it to be heard on the papers. This means that unless otherwise agreed, a hearing would not normally take place for this type of appeal.

Although the Government has suggested that parents should refer to the videos for guidance rather than having to seek legal advice for appeals, a parent and grandparent interviewed within chapter 6 disagreed.

They both confirmed that at some point in the process they had sought professional legal advice.

Is The Helpline More Effective Than Getting Legal Advice?

Like the YouTube videos, the helpline offered by the Tribunal can offer you some general advice on the appeals process.

But, you can't get specific legal advice about your situation through the helpline. It's therefore clear that the videos and helpline are no substitute for specialist legal advice.

When Should I Seek Legal Advice?

Parents and carers seek legal advice at different times and often for a variety of reasons.

Some of the common reasons for clients seeking our legal advice on SEND Tribunal cases include:

  • The work required in an appeal is too overwhelming for them to manage themselves
  • Their relationship with the Local Authority has completely broken down
  • The case involves complex legal matters
  • The Local Authority has legal representation

How Much Does Legal Support Cost?

The cost of legal assistance will vary depending on the complexity of your case, how much help you need from an expert, and the level of experience of the person who carries out the work for you.

Our Education Law team offers a range of services at affordable prices, depending on your needs. We also offer bespoke packages, and if you'd like to find out more feel free to contact us to discuss your options.

Legal Help, a form of Legal Aid, is also available for SEND Tribunal appeals for anyone who meets the eligibility criteria – but this excludes representation at the hearing.

How Can Simpson Millar's Education Law Advisors Help Me?

If you're appealing to the SEND Tribunal, you're entitled to seek legal advice to ensure you have the best chances of securing the right outcome.

If you need assistance with a SEND Tribunal appeal, contact our specialist Education Law team on 0808 129 3320 who will be happy to discuss your appeal further with you.

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