Appealing to the Tribunal
The Role of the Tribunal
The First-tier Tribunal (SEN and Disability) is overseen by Her Majesty’s Courts and Tribunals Service. It hears appeals against decisions made by local authorities in England about children and young people’s Education, Health and Care needs assessments and Education, Health and Care Plans. It also hears disability discrimination claims against schools and local authorities (see separate section)
- Parents – in relation to children from birth to the end of compulsory schooling, and
- Young People – over compulsory school age until they reach 25. Young people can register an appeal in their name but can also have their parent’ help and support if needed.
Parents or young people can appeal about:
- When the Local Authority decides not to carry out an Education, Health and Care needs assessment or re-assessment
- When the Local Authority decides not to issue an Education, Health and Care Plan following an assessment
- When the parent or young person disagrees with:
- the description of the child or young person’s Special Educational Needs specified in the Education, Health and Care Plan
- the special educational provision specified
- the school or other institution or type of school or other institution specified in the plan
- or that no school or other institution is specified
- When the parent or young person disagrees with an amendment to these elements of the Education, Health and Care Plan
- When the Local Authority decides not to amend an Education, Health and Care Plan following a review or re-assessment
- A decision by a local authority to cease to maintain an Education, Health and Care Plan
An appeal cannot be about Personal Budgets but can be about the special educational provision to which a Personal Budget may apply.
An appeal cannot be about the health and social care elements of an Education, Health and Care Plan. For these parts parents or young people can go to mediation or follow local health and social care complaints procedures
Appeals must be made to the Tribunal:
- within two months of the Local Authority sending the letter to parents or young people about their decision, or
- within one month of a certificate being issued following mediation or the parent or young person being given mediation information.
The Tribunal has a form that needs to be filled in to complete an appeal to them (https://www.gov.uk/special-educational-needs-disability-tribunal/appeal-to-tribunal).
In addition the parent or young person must also send:
- a copy of the decision letter that they are appealing against and the date when the decision was made, or the date of the mediation certificate
- reasons as to why they are appealing, explaining why they disagree with the decision
- copies of all relevant documents, such as copies of assessments
Once the Tribunal registers the appeal it will send a copy of the papers received to the Local Authority and give them a date by which they have to respond. Both the Local Authority and the parent or young person will also be asked to provide details of any witnesses they want to come to the appeal. They will also be told of the likely hearing date.
The Tribunal has buildings across the country. For Liverpool in recent years this has meant that the hearings have been held in Manchester. The appeal will be heard by a judge and usually two Tribunal members who have been appointed because of their knowledge and experience of children and young people with special educational needs or disabilities.
After the appeal the young person or parent should receive a copy of the Tribunal’s decision and reasons by post within 10 working days of the hearing. This will also include details of how to appeal to the Upper Tribunal if it was felt that the decision was wrong in law.
Legal Aid can fund legal advice and assistance in preparing an appeal to the Tribunal. It cannot fund representation at the Tribunal hearing.
To qualify for legal aid a person must pass a financial means assessment. The case must also have a reasonable chance of succeeding and pass a merits test for this.
If a person is eligible the Civic Legal Advice Service will provide advice, normally by telephone, online or by post unless the specialist advice provider assesses them to be unsuitable to receive advice in this way.
Young people under 18 and those who have been assessed as needing face-to-face advice in the previous 12 months with a further linked problem can seek advice directly from a face to face provider.
For further information and support on appealing to the Tribunal please contact the SEND Information, Advice and Support Service (formerly Parent Partnership Service) on 0151 225 3535.
HMCTS have published a video on YouTube providing advice and guidance for those wishing to appeal to the Tribunal Service.
A DVD of this video can be requested from the Tribunal by writing to:
First-tier Tribunal (Special Educational Needs and Disability)
In line with Schedule 2 of the Special Educational Needs and Disability Regulations 2014 all local areas in England are required to publish details in their local offers for ‘notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal’ and this includes their extended rights as part of the single route of redress national trial. The following information on the national trial, to supplement the information that must already be published on the right to appeal a decision of the local authority, has been included below to support local authorities in fulfilling this duty.
The Government are extending the powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans as part of a national trial. The trial will apply to decisions made or EHC plans issued/amended from 3 April 2018 and will run until August 2020, when a decision will be made on its continuation.
To date, you have only been able to appeal the educational aspects of EHC plans. The trial gives you new rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHC plan in one place.
It is only possible for the Tribunal to consider the health and/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.
If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal. This trial now gives you the opportunity to also request recommendations about the health and social care content of the plan at the same time. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.
This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures. You should seek advice about the different routes available, including from your local Information Advice and Support Service (IASS).
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on their websites.
When can a parent or young person request recommendations about the health and social care elements of an EHC plan?
You can request the Tribunal makes recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:
- the description of the child/young person’s special educational needs in an EHC
- the special educational provision specified in an EHC plan
- the school or other educational institution named in an EHC plan
- a decision by the local authority not to issue an EHC plan
- a decision by the local authority not to carry out a re-assessment for a child/young
person who has an EHC plan
- a decision by the local authority not to amend an EHC plan following a review or
- a decision by the local authority to cease to maintain an EHC plan
The Trial places responsibility on local authority SEND teams to:
- Inform parents and young people of their new rights through decision letters and the local offer
- Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary
- If a recommendation has been made, send the health and social care response letters to the evaluators at SENDletters@IFFResearch.com.
It also places responsibility on health and social care commissioners to:
- Respond to any request for information and evidence within the timeframe set by the Tribunal
- Send a witness to attend the hearing as required
- Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.
If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the normal process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal. Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website and further guidance can be found in the trial toolkit of support.
Taking part in the evaluation
There will be an independent evaluation of the trial to inform a decision on whether the new tribunal recommendation powers should be continued after the trial. The evaluation will run alongside the trial, from January 2018 to March 2021.
It is important that the evaluation is based on robust evidence, and the evaluators are therefore strongly encouraging participation from parents and young people. This could include taking part in a telephone or online interview just after the appeal hearing (or when the appeal process has been completed, if earlier), and then a follow-up interview 6 months later. These interviews will help the evaluators to gather the views of parents and young people on the appeal process, as well as identify how recommendations have been implemented and what the (early) impact has been.
Parents and young people that take part in the trial will receive a letter from the Tribunal explaining more about the evaluation and how their personal data will be stored confidentially and how it will be protected.
Before you can register an appeal with the Tribunal, you must contact a mediation adviser within two months of the LA decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the LA. If you want to appeal only about the school or other institution named in the EHC plan you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an EHC plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.
Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate. This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal. An appeal to the Tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is the later.
If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and/or social care aspects of the EHC plan. However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal. It does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.
- A guidance document on the national trial is published as part of a toolkit of support
- [Insert link to local SENDIASS]
- The evaluation of the trial is led by IFF Research working with Belmana. For any questions or to get involved please get in touch with them at SENDtrial@IFFResearch.com, freephone: 0800 035 6051.