Refusal to assess appeals

First it is important to check that you can make your appeal.  

You can appeal to the SEND Tribunal if you can answer yes to the following:  

Appeal criteria

• You have received a letter from the local authority telling you they are not going to assess your child (this is the decision letter)
• The young person is aged 0-24
• You are their parent, or have care of this young person or have been asked to act on behalf of someone who has parental responsibility for the young person aged 0-15, or by the young person aged 16-24.
• You have a mediation certificate; and
• It is less than two months from the date on your decision letter from the local authority; or less than one month from the date on your mediation certificate (whichever is later)

Note- If you are outside of the appeal timescales, you can still apply but you must give your reasons for the delay and say why you think your appeal would still be successful if you were given an extension. You can do this in section 3 of the appeal form.               

If you do not have a mediation certificate then you must give the reason why you couldn’t get one in section 3 of the form.  

• Independent Providers of Special Education Advice (IPSEA)

  Run a tribunal helpline that offers 30 minute telephone advice sessions. They provide up to date information on the law and clear next steps advice for SEND appeals and disability discrimination claims. Appointments are booked online via their website

• Legal Aid

  You do not need legal representation to make an appeal to the SEND tribunal. You could seek advice to help you make your case from IPSEA or from condition specific charities such as the Downs Syndrome Association or the National Autistic Society.

• SEND 37

  There is a government document that you can read about appealing SEND decisions. It is also available in an easy read format. You can find these here.

• Mediation

  You should have been made aware of mediation in your decision letter from the local authority. This is an opportunity to try and reach an agreement before the case goes to the SEND tribunal. You must at least consider mediation before you can register your appeal, unless you are only appealing for the school or setting named in the plan.

• Tribunal bundles

  You will be asked to send relevant documents or reports to the tribunal as evidence to support your case. You should only send copies of documents and not the originals. These documents, along with copies of any documents that the local authority sent as their evidence, form the ‘tribunal bundle’. You should carefully read this bundle in advance of the hearing so that you can see what you will need to answer against on the day. You could also use it to make notes to help you with what you want to say on the day.

SEND appeals can take up to 20 weeks to reach decision making.       

However, the tribunal aims to fast track refusal to assess appeals to 10-12 weeks.    

They do this by using only the written evidence to reach their decision, rather than holding a hearing. This is known as an ‘on the papers’ appeal. If you do not wish to agree to this and want a hearing to be held then you must complete section 4 of the appeal form giving your reasons. 

Section 2 of the form asks you to tell the tribunal why you disagree with the local authority refusing the EHC needs assessment.

For this type of appeal, the tribunal will apply a legal test that is contained within the Children and Families Act 2014 - 36(8) and will consider two questions:

• Whether the child or young person has or may have SEN; and
• Whether the child or young person may require an EHC plan

As this will be a paper based hearing, it is important that you think carefully about the reasons you are going to give and about the evidence that you want to send in to support it.

Try to keep your answers clear and to the point. You do not need to use legal language. Below is some guidance on providing this information on the form:

Describe any special educational needs that the child or young person has:

Tell the tribunal about any of your young person’s SEND that is already known about.

This would include any formal diagnosis that you have received from professionals who have worked with or assessed your young person. It might also include needs that the school has spoken to you about and has likely put some support in place for. It might be helpful to carefully read the EHC1 form that the school has completed and look for any needs they have talked about.

You can also refer back to the EHC2 form that you completed, but remember that this section is asking for the known special educational needs. You will be able to tell the tribunal about any concerns you have about things that may be happening for your young person in the next box.

Give a description of what their known SEND is and how it affects them. If you can, also provide your young person’s views about this. Maybe from the EHC3 if they did one, or using a talking mat.

You could think about:

• Communication and Interaction

How they communicate with others. Do they have any difficulties understanding others or letting you know what they need? Do they use any tools or aids to help them to communicate?

• Cognition and learning

How they learn and process information. What areas of learning are they finding difficult? Are they getting any help or support at school with their learning such as extra time with staff or as part of a small group?

What type of learning environment is helpful or unhelpful to them? Do they become distracted easily? Do they get their information in a particular format e.g. written down, verbally, in picture form? Do they remember things well? Can they work independently? How do they manage with their homework? What progress have they been making with their learning?

• Social Emotional and Mental Health (SEMH)

How they make and maintain friendships. Do they prefer to be alone or in groups? Can they express how they are feeling? What does this look like? Do they worry about things? How do they cope with change? Are they getting help or support in school around friendships and/or emotions, such as 1:1 support, extra supervision at social times, visual prompts or check ins or small group work?

• Physical or sensory needs

How they use equipment and resources .Can they use equipment independently or do they need support? Do they need any specialist equipment? Do they have support for their motor skills such as writing, holding pens, holding scissors, tying shoe laces? Do they use the toilet by themselves or with support? Do they have support to dress and undress? Can they eat their lunch by themselves and use cutlery? Think also about any sensory needs that they might have. Are they sensitive to smells, light, sounds, foods, different environments, crowds? Do they need to fidget or move about? Do they shout out? Are there any health or medical needs, e.g. medications, aids, sessions or appointments that they have with any specialists?

• Independence and Self Care

How they care about and for themselves. Do they understand things such as road safety, using money, time, routines and stranger danger? Are they able to get themselves dressed, cook for themselves and look after their personal hygiene? Can they follow instructions? Are they receiving any additional support in school for any of these?

If there are already some known needs, is it likely that they will continue to change overtime? Might they need more support to meet them in the future? For example, if your young person is coping well in a smaller setting such as a primary school, will they manage in a bigger high school setting or does some careful planning and preparation need to be done about this? Or is there a possibility that they will need to move to a more specialised setting than a mainstream school?

You also need to give evidence to support what you are saying whenever you can. For example say which professional report or document this information has been taken from. It could be a school support plan, a school report, a behaviour log or agreed actions in notes from school meetings.

• Describe any special educational needs which you consider the child or young person may have which have not yet been fully identified:

Tell the tribunal about what is worrying you about your young person’s education and learning and why you think that an assessment would be helpful. If there is not already a lot of known SEND, an assessment can be a good way to find out more about your young person’s difficulties. You would need to explain why you think that more advice or assessments from a number of different professionals is needed to help to explore and understand the difficulties. You would need to show that professionals do not yet know enough about your young person’s difficulties to decide what help is needed.

Refer back to the EHC2 that you completed and highlight what you think are the most important points. It might also be helpful to carefully read the EHC1 that the school completed, looking for anything they have said that they need to know more about or have tried to support but has not made good progress with.

Give a description of what you think their SEND could be, what you see happening and how you think it is affecting your young person. You could think about:

• Communication and interaction needs

How they communicate with others. Do they have any difficulties communicating with others? Do they have difficulties understanding others or communicating what they need? How do you manage this at home? Do you think they might need some support with this at school, or some tools to help them communicate?

• Cognition and learning

How they learn and process information. What areas of learning are they finding difficult? Do they become distracted easily? Do they respond better to information in a particular format e.g. written down, verbally, in picture form? Do they remember things well? Can they work independently? How do they manage with their homework? Are you worried about their rate of progress with their learning?

• Social, emotional and mental health needs (SEMH)

How they make and maintain friendships. Are they able to make friendships easily? Do they prefer to be alone or in groups? Are they able to express their feelings? What does this look like? Do they worry about things? How do they cope with change? What behaviours are you seeing at home? What support do you think they might need about their friendships and their emotions?

• Physical or sensory needs

How they use equipment and resources. Can they use equipment independently or do they need support? Do they have any difficulties with their motor skills such as writing, holding pens, holding scissors, tying shoe laces? Are they able to use the toilet independently? Can they dress and undress themselves? Can they eat their lunch by themselves and use cutlery? Think also about any sensory needs that they might have. Are they sensitive to smells, light, sounds, foods, different environments, crowds? Do they need to fidget or move about? Do they shout out? What do you think might be helpful to them about these needs? Do you think that they need to be seen and assessed by any health professionals or specialists?

• Independence skills and self-care

How they care about and for themselves. Do they understand things such as road safety, using money, time, routines and stranger danger? Are they able to get themselves dressed, cook for themselves and look after their personal hygiene? Can they follow instructions? Do you think they will need any adult supervision and further support in these areas?

Think about what is not working well for your young person at the moment. Are they making the progress you expect or are they feeling unhappy at school? What do you think is missing that they might need? What evidence do you have that the school or other professionals are also unsure of what the underlying needs might be?

Think about your young person’s future in education, do you feel their needs are going to change overtime and require further support than they are currently receiving? Does their current setting agree that they might need additional or more specialist support as they move on in their education?

You also need to give evidence to support what you are saying whenever you can. For example say which report or document information has been taken from. It could be a school support plan, a school report, a behaviour log, school letters or agreed actions in notes from school meetings. You might also have evidence from outside of school such as out of school groups or activities where other people have expressed some concerns about your young person.

• Explain why you think the child or young person may require an EHC plan.

Tell the tribunal why you think that your young person might need a plan to meet their SEND. You do not have to prove that it is definitely necessary – just that it might be needed.

It could be that you feel school are not able to give all of the help that may be needed without the support of the local authority. If so, then you need to explain why the support needed is above what a school is legally expected to do under usual SEND support and planning. (Known as the graduated approach, you can read a helpful guide from Nasen about this here

You can look into what further help their current school can ask for such as an educational psychologist, a behaviour support team, specialist teachers or health services such as speech or occupational therapists.

Please note – appealing to the tribunal should not be a complaint about what the school has not done or put in place. If you feel that there is more the school should be doing to support your young person under the graduated approach, then you can contact the local authority to discuss this further. This appeal is to show that your young person may need something over and above what a mainstream school should be able to provide.

It could be that the school are putting a lot of support in place, but despite this your young person is still not making enough progress. Can you show that this progress has been because support has been in place for them? What is working well and needs to be kept in place or built upon? What is not working so well? What could be missing that might improve things for your young person?

It may be that you think your young person needs some very specific or specialist support that is not available in their current school. So additional resources or even a change of placement might be needed. You cannot apply for a specialist placement without an EHCP.

Think about them preparing for becoming an adult and the changes that come up in education (transitions) such as changing teachers, class groups, key stages or moving school settings. Do you feel that your young person will manage these ok? Might they need some additional support or resources? Does the school or any other professionals agree that this is something your young person will struggle with? If your young person will be moving on in their education, for example from primary school to secondary school, does the current school think they will cope ok in the new setting, or that it will need some careful planning and preparation work? Might they need a more specialised setting than a mainstream school?

Once you have said what you are appealing about and why, you now need to provide the evidence to support your case.                 

You should only send copies of any documents or reports, not the originals.                 

Make sure that any evidence you have is not out of date and that it is relevant to your appeal. For example a diagnosis would remain in the long term, unless there is a re-diagnosis, but some assessments are only relevant for a shorter amount of time, before a re-assessment is needed.                 

You will be asked to:                 

• list each document
• say where it is from
• say when it is from; and
• say why you are including it

Your evidence could include documents that:                          

• help to understand your child’s SEND, such as medical reports, health plans or assessments
• show any support that your child needs or gets, such as support plans, behaviour plans or notes from meetings with the school or other professionals
• show that there have been discussions with school about such issues as reduced attendance, exclusions, behaviour.
• show what level your child is working at, or the rate of progress that they are making, such as school reports and support plans.
• Your young person’s view, which could include mind maps, drawings, written view or the ehc3 form if they completed one

Remember to check that all the evidence you have listed in the table links to something you have said in your appeal reasons.   

Before you send in your form, check the following:                          

Appeal criteria

• you have filled out all relevant sections of the appeal form
• you have told the tribunal what you are appealing about
• you feel you have covered everything you wanted to in your reasons for appeal
• you have attached your evidence to support your appeal
• you have attached a copy of the decision letter from the local authority
• you have attached a signed copy of your mediation certificate
• you have signed and dated your form

You can send your form to:                 

• send@hmcts.gsi.gov.uk – writing ‘New Appeal’ in the subject line.
• HM Courts & Tribunals Service
  Special Educational Needs and Disability Tribunal
  1st Floor
  Darlington Magistrates Court
  Parkgate
  Darlington
  DL1 1RU

If you have any queries or if you need to speak to the tribunal you can call them on 01325 289350.   

The tribunal will register your appeal within 10 working days. They will then send you some information and documents about your appeal.

Read these documents carefully and make a note of any actions that you may need to do, and the dates they need to be done by. The documents you will receive will include:

• Parent Registration Letter

This letter will give you the registration number for your appeal. It is important that you give this number whenever you contact the Tribunal.

• Case Directions

The case directions tell you what will happen next, and what is expected of the Local Authority (LA) and of yourself. It gives you key dates, such as the deadline to submit any additional information by and the date of the appeal itself. Read these carefully and make a note of any actions that you need to take and the dates they must be done by. You might want to put them in your calendar and/ or set yourself reminders.

• Paper Hearings Advice

This will tell you more about the hearing process being based on written evidence rather than an actual hearing being held.

• SEND 40 -New bundle guidance

There is more information about Tribunal bundles below, but it is worth noting that Part C of this document will give you guidance about what other information you could send on to support your appeal.

Please note that you must send copies to the LA of any further documents (Additional evidence) you send to the Tribunal.

• How you can help us- advice form

This document gives you information about how to contact the tribunal if you need to, and the correct way to do this.

The ‘e-filing’ document gives you information about how to send in information and additional evidence electronically. When you send an email you must put the following in the subject heading of your email, or they will not accept it:

Current hearing date in the format of dd.mm.yy (if known)

Subject matter

Case number and child’s/young person’s name

An example of this would be:

HD 04.11.20 LA Response EH123.15.00012 John Smith

The tribunal will send copies of all the paperwork to the LA, who then have 6 weeks (30 working days) to respond.  

The LA must clearly say whether they are going to oppose your appeal or not and their reasons why.  

If the LA has ask to ‘strike out’ (end) your appeal because they think it is not a case that the SEND tribunal should consider. You will be asked to give your comments in writing about why you think that your appeal should continue.

If you manage to reach an agreement with the LA before your hearing, this is known as ‘settling the appeal.’ If this happens you should ask the tribunal to record this settlement in a consent order, rather than withdraw your appeal.

If a settlement is reached less than five days before the hearing, the tribunal may ask you to still attend to discuss why the case was not settled earlier.

The tribunal will provide their decision in writing along with their reasons for making within 10 working days of considering your case. They will also provide you with advice about how to appeal if you are unhappy with their decision.

If the LA has been ordered to make an EHC needs assessment, then they have 4 weeks from the date of the decision letter to do this.

You have 28 days from receiving your decision letter, to appeal against a tribunal decision. Guidance about how to do this will be sent to you along with your decision letter.