Refusal to issue a plan, contents, placement or cease to maintain 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 decision letter from the local authority
• 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 (not needed if you are only appealing about Section I) ; 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)

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 5 of the appeal form.           

If you do not have a mediation certificate and are appealing for anything other than the school or setting named section I, then you must give the reason why you couldn’t get one in section 5 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.

• Witnesses

  You can take witnesses with you to the hearing. These could include professionals such as a class teacher, support assistant or the school SENCo. You can usually have up to 3 witnesses, but they must have something relevant to say about your case. You will need to let the tribunal know about any witnesses you would like to use and why. This is done by completing an attendance form that is sent to you once your appeal has been registered. The local authority is also allowed to have their own witnesses.           

• 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.           

• Working document

  This is a copy of the final EHCP that all parties will ‘work on’ to show any changes or amendments that are being asked for.

The appeals process can take up to 22 weeks to reach its final decision.
 

Week

0

You send in your appeal form and it is registered by the tribunal

6

The local authority must respond to the appeal

9

You send in details about any witnesses or representatives

16

All further evidence must be submitted

20

A hearing would take place

22

Tribunal decision issued in writing

Section 2 of the form asks you to tell the tribunal what you are appealing about, below is some guidance on which combination of boxes you may need to select.

1.First select one of the possible process outcomes:

The Local Authority secured an EHC assessment but refused to make an EHC plan.

Tick this if there has been an EHC needs assessment but you have been told that an EHCP was not needed. If you tick this box you will not need to tick any of the remaining boxes.

The Local Authority has issued an EHC plan following an EHC Needs Assessment.

Tick this if there has been an EHC needs assessment and an EHCP has been written. You will now also need to tick one or more of the boxes shown in table 2 below.           

The Local Authority has refused to secure a Re-Assessment of EHC Needs.           

Tick this if there is an existing EHCP and you had asked that a new needs assessment be done, but the LA has refused. You might also want to tick one or more of the boxes shown in table 2 below, if you are unhappy with what is written in the existing EHCP and are wanting changes to be made to it.           

The Local Authority has carried out an annual review of the EHC plan.           

Tick this if your young person already has an EHCP and it has just had its review. You will now also need to tick one or more of the boxes shown in table 2 below.           

The Local Authority has refused to amend the EHC plan after an EHC Needs Re-assessment.           

Tick this if there is an existing EHCP, but a new EHC needs assessment was done and you have been told that no changes will be made to the existing EHCP. You will now also need to tick one or more of the boxes shown in table 2 below.           

The Local Authority has decided that the EHC plan is no longer necessary and are going to ‘Cease to Maintain’ the plan.           

Tick this if there is an existing EHCP and you have been told that it has been stopped. You might also want to tick one or more of the boxes shown in table 2, if you are unhappy with what is written in the existing EHCP and are wanting changes to be made to it.   

The tribunal will only look at issues that are linked to your young person’s educational needs.           

Use section 3 of the form to say clearly what you are appealing against and what you want the tribunal to do. Your answers do not need to be long and you do not need to use legal language.           

Below is some guidance for completing section 3 of the form:           

I am bringing the appeal because (to be completed in all appeals):           

You must complete this box.           

Tell the tribunal what decision or decisions the local authority has made that you are unhappy with. You could list or bullet point them.           

For each point, tell the tribunal what you would like them to do. This could include requesting any assessments or reports that you want the local authority to provide.           

I disagree with the description of special educational needs (Section B of the EHCP) because:           

Complete this box if you want the tribunal to look at the SEND written in section B of the final plan.           

Tell the tribunal what SEND information you are unhappy about within this section. Do you feel it gives a clear description of what needs your young person has? Do you think there is anything missing? Does anything need rewording? Is there any wrong or mis-leading information in it? Say what you think it should say instead.           

You could refer back to the EHC2 form that you filled in when requesting the EHC needs assessment. It may be helpful to think about their needs in the following areas:           

• Communication and Interaction
• Cognition and learning
• Social Emotional and Mental Health (SEMH)
• Physical and or Sensory Needs
• Independence and Self Care

Remember that each need written in section B should then go on to have support or provision made for it in section F. So, if you are wanting something to be added to section F, then it must be clear in section B why it is needed. This may mean adding something into section B that isn’t there already, or making something that is written there clearer.           

You also need to give evidence to support what you are saying whenever you can. For example, if you want information about a need to be added, say which professional report or document this information has been taken from.           

I disagree with the specification of special educational provision (Section F of the EHCP) because:           

Complete this box if you want the tribunal to look at the help, support and provision written in section F of the final plan.           

Tell the tribunal what information you are unhappy about within this section. Do you feel it gives a clear description of what needs to be provided? Do you think there is anything missing? Does anything need rewording? Is there any wrong or mis-leading information in it? Say what you think it should say instead.           

This section of the plan should always be clear and measurable. Meaning that anyone working with your young person should be able to read the plan and be clear about what needs to be provided, who can provide it and how often. For example, could a new member of staff or a supply teacher read it and then be able to support your young person appropriately?           

The plan should also be reviewed at least a year by the local authority to make sure that it remains accurate and up to date.           

You also need to give evidence to support what you are saying whenever you can. For example, if you want information to be added, or to be made more detailed, say which professional report or document this information has been taken from.           

Remember, if you are asking for additional provision to written into the plan, it should clearly link back to the SEND written in section B to show why it is needed.           

The LA have not considered:           

Use this box to tell the tribunal about anything that you feel the local authority may not considered when they made their decision. Such as:           

• Have any professional recommendations been overlooked? Look through any paperwork/letters from professionals who are supporting you to see if they have written anything that supports your case. For example a recommendation from a paediatrician that states that the child would be better in a specialist setting, rather than mainstream or that they need access to a particular resource.
• Has your parental preference been recorded and considered? For example if you have asked for a specialist setting, can you see that there were consulted with if a mainstream school has been named?
• Have your young person’s views been recorded and considered? Check through the paperwork and documents, have they made any references things such as to the type of education, or environment / school that they wish to attend, what they are worried about or what they want more support with?
• Has there been any new or updated information since the original application went in? For example, are there any new reports, assessments or has there been a diagnosis?

I disagree with the LA’s choice of school/college/institution (Section I of the EHCP) because:           

Complete this box if you do not agree with the school or setting that has been named in section I of the final plan.           

Tell the tribunal why you think that the named setting is not suitable. What needs do you feel they will not be able to meet? What would be the impact of this on your young person? You do not need to say why you have chosen the setting you have here, you will be asked for this information in the next box.           

You could consider :           

• Your thoughts, observations and concerns about the named setting from any visits you made
• The physical environment of the setting. Think about the size and layout of all its facilities. What does your young person need in terms of their environment? What is not suitable for them about the named setting? Will they be able to move around the setting independently or would they require support? Is that support available?
• The sensory environment. Think about things such as smells, noise levels, crowding, visual stimulation levels, use of outbreak spaces and the mealtime facilities. What concerns do you have about the named setting? What do you think is not suitable about it?
• The learning environment. Think about things like class sizes, staffing ratios, staff training including their knowledge and experience of your young person’s SEND. What resources and support are available? What does your young person’s plan say they need? Can the named setting provide this?
• Friendships, social interactions and peer groups. Will your young person be able to interact with others and make friends? Is there a risk that they might become withdrawn or isolated?
• Social, emotional and mental health (SEMH). Do you feel that your young person is vulnerable? Do you have concerns about how this move would impact them? If so why?
• The views and thoughts of your young person. Where they able to make a visit? If so what did they think about it and how it would feel to go there? If not have they said anything about what they think they need or would like from a setting? What would they really dislike or struggle with about a setting?

You need to give evidence to support what you are saying whenever you can. For example, have you got any recommendations from professionals that have worked with your young person, any reports or assessments, or evidence of things that have not worked for your young person that will likely be part of the named setting?           

I prefer my choice of school/college/institution (Section I of the EHCP) because:           

Complete this box if you do not agree with the school or setting that has been named in section I of the final plan.           

Tell the tribunal why you are asking for a different setting to be named instead. Try to say clearly why you think that this setting would be better for your young person.           

You could consider:           

• Your thoughts, observations and concerns about this setting from any visits you made
• The physical environment. Think about the size and layout of the setting and all its facilities. Why is this setting more suitable than the named setting?
• The sensory environment. Think about things such as smells, noise levels, crowding, visual stimulation levels, use of outbreak spaces and the mealtime facilities. Why do you think this setting can better support these than the named setting?
• The learning environment. Think about things like class sizes, staffing ratios, staff training including their knowledge and experience of your young person’s SEND. What resources and support are available? What does your young person’s plan say they need? Do they need specific professionals to be onsite to meet their needs? Why do you think this setting can better support these?
• Friendships, social interactions and peer groups. Will your young person be able to interact with others and make friends or are they at risk of becoming withdrawn or isolated? Why do you feel they will cope better at this setting than the named setting?
• Social, emotional and mental health (SEMH). Do you feel that your young person is vulnerable? Do you have concerns about how a move would impact them? Why do you feel that this setting would be better for them than the named setting?
• The views and thoughts of your young person. Where they able to make a visit? If so what did they think about it and how it would feel to go there? If not have they said anything about what they think they need or would like from a setting?

You need to give evidence to support what you are saying whenever you can. For example, have you got any recommendations from professionals that have worked with your young person, any reports or assessments, or evidence of things that have not worked for your young person that would be different in your preferred setting?           

If you also want the tribunal to look at any health or social care needs, including respite needs and medical conditions, they must still link to your young person’s learning and education.,/p>            

Use section 4 of the form to say clearly what you are appealing against and what you want the tribunal to do. Your answers do not need to be long and you do not need to use legal language.           

Below is some guidance for completing section 4 of the form:            

I disagree with the health care needs and health provision (Section C and G if concerning an EHC plan) because:            

Complete this box if you want the tribunal to look at the health needs and/or support and provision written in sections C and G of the final plan.           

Remember that the health needs must have an impact upon your young person’s education and learning experience.           

Tell the tribunal about anything in these sections that you are not happy with. It might be something that is written incorrectly, or does not contain enough detail to make it clear. It might be that you want something taking out of these sections because you think it is no longer needed, or you think something important is missing.           

You need to give evidence to support what you are saying whenever you can. For example, have you got any letters or reports from health professionals that make recommendations or give clear information about your young person’s health needs?           

I want the Tribunal to make a recommendation about the health care needs and health provision (Section C and G if concerning an EHC plan) follows:            

Complete this box to show what you think should be in sections C and G instead.           

Tell the tribunal clearly what you would like the plan to say in these sections.           

Remember, If you want additional health provision to be written into the plan, you must make sure that there is a clear health need to show why it is needed.           

I disagree with the social care needs and social care provision (Section D and H if concerning an EHC plan) because:           

Complete this box if you want the tribunal to look at the social care needs and/or support and provision written in sections D and H of the final plan.           

Remember that the care needs must have an impact upon your young person’s education and learning experience.           

Tell the tribunal about anything in these sections that you are not happy with. It might be something that is written incorrectly, or does not contain enough detail to make it clear. It might be that you want something taking out of these sections because you think it is no longer needed, or you think something important is missing.           

You need to give evidence to support what you are saying whenever you can. For example, have you got any letters or reports professionals that make recommendations or give clear information about your young person’s care needs?           

I want the Tribunal to make a recommendation about the social care needs and social care provision (Section D and H if concerning an EHC) as follows:            

Complete this box to show what you think should be in sections D and H instead.           

Tell the tribunal clearly what you would like the plan to say in these sections.           

Remember, If you want additional care provision to be written into the plan, you must make sure that there is a clear care need to show why it is needed.           

Once you have said what you are appealing about and why, you now need to give the evidence to support your case. There is a table to enter this information into in section 12 of the form.           

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

Evidence can be added once the appeal has been registered so don’t worry if you miss something out when you send in your form.           

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 EHCP is there is one
• 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, including the date of your hearing.          

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.          

Attendance Form
This will tell the tribunal about any witnesses or representatives that you want to attend the hearing. You must fill in the attendance form at the bottom of the letter and send it back to the Tribunal by the date given, or your witnesses may not be allowed to attend your hearing. You do not need to have a lawyer to go to the SEND Tribunal and the vast majority of parents do not have any representative at their appeals. More information about representatives can be found on the IPSEA website            

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          

Case Management Questionnaire
This asks you about any issues that you think might need to be looked at before the hearing to make things run more smoothly, narrow down the issues to be discussed or even to reach agreements on somethings sooner. For example, if an assessment needs to be carried out or if more evidence is needed about something. If your case is very complicated then you may be offered a case management hearing. More advice will be given about this below. 

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.           

Once you have received your response from the LA, you will be able to send in additional information or evidence to support your case.           

If the appeal was about not issuing an EHCP, changing the school or setting named in the plan or about ceasing to maintain the plan. Then your appeal will automatically come to an end if the LA does not oppose it.           

If the appeal was about making changes to an EHCP, and you are now happy with what they LA has said they will do, then you can either chose to withdraw your appeal, or ask the tribunal to issue a consent order to make these now agreed changes.           

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 local authority is responsible for putting the ‘tribunal bundle’ together and should give you a copy of this at least 2 weeks (10 working days) before the date of your hearing.           

This bundle should contain all of the evidence and documents that have been filed for use in the appeal. You should check this bundle carefully to make sure that nothing has been missed out, it is all clear to read and that there is nothing extra that has been added that should not have been.           

The tribunal panel will use the bundle to decide what key issues they want to discuss at the hearing. They will not make their decision based only on this bundle, unless you have agreed to an ‘on the papers’ hearing. They will wait until they have heard the discussions and further information that is provided at the hearing.           

If you do not receive your bundle, or if there are any problems with it, you should inform the tribunal as soon as possible.           

You could make notes on the bundle about things that you want to raise at the hearing and can think about how you want to respond to the information from the LA.           

You should take this bundle with you to the hearing on the day. You could tick off the points that you wanted to discuss as you go along. It might also be helpful to mark the important documents in it, so that when you are talking about your evidence, you can tell the panel where to look for it.           

You will be asked at the end of the hearing to provide a summary of your case, so it might be useful to make some notes to take with you for this.    

About three weeks before your hearing date, you might get a phone call from a registrar. They will speak to you about any issues that you have put down on your case management questionnaire, to help to make sure that your case is ready for the hearing.           

If there are issues that need to be looked at, you may be asked to have a further telephone call known as a ‘case management hearing’. This is so that the tribunal can look at anything that may need to be done before the hearing, such as carrying out an assessment, filing further evidence or discuss postponing the hearing if someone has made a request to do so.   

Before the hearing, it might be that you need to ask things such as more time to do something, an extra witness or some additional information or documents. This is known as making ‘applications for directions’ and can be done at any time by yourself or by the local authority using the request for change form. However, before an application can go to the tribunal, the other party must be contacted first to see if they will agree to it. It may be helpful to email this form to the tribunal and copy the LA in at the same time. Usually it can take up to two weeks for an application to be processed.           

The tribunal can also ask for more information or evidence. For example, they might order that a young person be examined or assessed by a professional. Failure to follow a tribunal direction can result in the case being ‘struck out’ (ended).           

If the appeal is about sections B and F of the EHCP, then the tribunal will include a direction for everyone to work together on a copy of the final EHCP, showing all the changes, additions or removals that are being asked for. This is known as the ‘working document’ and needs to be filed at least 10 days before the hearing.

The SEND tribunal panel is both independent and impartial, which means they are not influenced by the government or by the local authority. It is usually made up of a judge and one or two specialist members.           

The judge is there to make sure that the legal process is followed correctly and is fair. They will make sure that everyone is given equal time to speak and be listened to. They will also make sure that your young person’s SEND remains the focus of the hearing.           

The specialist members will have background experience of SEND and their job is to listen and to ask questions. Even though this is a legal process, they will try to make you feel at ease and as less formal as possible.           

The tribunal panel meets together before your hearing to discuss what they think the key issues are decide what questions they want to ask. They will make their decision based on the evidence that they have been given and have heard at the hearing, and this decision will be legally binding.  

• The judge will introduce themselves and explain what is going to happen during your hearing.
• The panel will likely ask you for an opening statement to help them to understand what the issues are. The LA will also give one.
• The panel will ask if there has been any progress made on the issues and areas of disagreement. If there has, it could now be discussed and accepted.
• The panel will then move on to look at any outstanding issues. You may even be asked to go into a separate room with the LA to see if anything else can be agreed between yourselves. You will be asked to talk to the panel about any outstanding issues and present your evidence to them. If you have a witness, make sure that they know what changes they will be speaking about.
• The judge won’t let people be interrupted so if you have any comments you want to make, keep them until it is your turn to speak. If you make a point try and use evidence to back it up.
• The judge will stop the hearing for breaks, but you can ask for a break if you feel you need some time to re-focus, a comfort break or need to speak to one of your witnesses privately.
• At the end of the hearing you will be asked to sum up your case.
• If any agreement is reached, the tribunal can issue a consent order that formally asks the LA to make the agreed changes. It is a good idea to keep your own record of anything that has been agreed.
• If agreement was not reached then the panel will make sure they have asked for the views and evidence on the remaining issue so that they can make their decisions. If there is a working copy of the EHCP, then at the end of the hearing the panel will usually ask you to sign the pages, on which the agreed changes have been clearly marked. If this does not happen, you should ask for this to be done.
• The judge will then end the hearing and let you know when to expect any outstanding decisions. This is usually in writing, within 10 working days.

The tribunal have up to 10 working days to write to you with any outstanding decisions. They will provide their decisions, reasons for these, the timescales to make any required changes and advice about how to appeal if you are unhappy with their decisions.    

If the LA has been ordered to make changes to the EHCP, once you receive a copy of the amended plan you should check it carefully to see that the wording fits with what the tribunal has ordered. Timescales for changes:           

If you are unhappy with the decisions that the tribunal has made, you have 28 days from receiving your decision letter, to appeal to the next tier tribunal. Guidance about how to do this will be sent to you along with your decision letter.