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Appealing to the SEND Tribunal
It's a good idea to continue talking to the local authority when you are in disagreement, as it may be possible to resolve without having to lodge an appeal.
Let them know what it is you disagree with and what you would like changed.
These discussions will help you decide whether to appeal and if you do, it could be useful when building your case. Continue talking with them even after lodging an appeal.
Appealing to the SEND Tribunal is a formal legal process and can feel quite daunting for parents. Information and preparation are key, take a look at our information, and if you are undecided or have any questions about appealing, please get in touch.
If you are thinking about appealing these local authority decisions, you must firstly consider mediation:
- refusal to carry out an EHC needs assessment
- refusal to issue an EHC plan
- the contents of a final EHC plan or amended plan
- decision not to amend an EHC plan
- decision to cease to maintain an EHC plan
Watch this video about what to expect at a SEND tribunal hearing.
The right of appeal moves to the young person when they reach the end of compulsory school age (the last Friday in June of the academic year in which they turn 16).
Building your case
Click the tiles below for advice around the evidence needed for these various types of appeal.
We can support you with preparing and lodging your appeal, helping you with paperwork, guiding you through the process, and we may be able to attend with you.
If you instruct legal representation we will step back from active involvement but will remain available for information and ongoing advice and support around related issues.
If you lodge an appeal with the SEND tribunal about any of the education sections (needs, provision or school named) of a plan, you may now ask the tribunal to consider the sections relating to health and social care needs and provision, as part of a National trial running until 31 August 2021.
It is worth remembering that any health and social care provision which educates or trains a child or young person should be specified under 'Special Education Provision' (section F) of the EHC Plan. This might include speech or occupational therapies for example.
You could include in your appeal, where you believe the local authority have not fully identified health or care needs as part of the EHC needs assessment - for example, where social care have responded with 'not known to service', or where you disagree with the outcome of a 'continuing care assessment' (or that there has not been one).
Read the full guidance about the trial, including the duties of health commissioners and local authorities.
Will it cost me anything?
There are no costs to you with appealing, unless:
- you choose to have legal representation. (If you decide to have legal representation, it is likely the local authority will also instruct a lawyer).
- a witness you call charges a fee.
Read the SEND Tribunals' guide 'How to appeal a SEN decision'
Which education sections of the plan can I appeal?
You may only appeal these educational sections of an EHC plan:
Section B - Special Educational Needs
Section F - Special Educational Provision
Section I - The school or setting named, or that no school or setting is named
You may not appeal sections A (views of your child), E (the required outcomes) and J (direct payments)
How do I start my appeal?
You can lodge an appeal, either within two months of the original decision being sent by the local authority, or within one month of the date of the mediation certificate whichever is the later.
You can send in the post or by email marking 'New Appeal' (the address and email address will be on the form you complete):
- your decision letter from the local authority
- your signed mediation certificate
- your reasons for appeal
- completed, signed form either form SEND35 or for a 'refusal to assess' appeal form SEND35a
Watch our instruction videos on YouTube: Help with filling in appeal form 35 (to appeal a refusal to issue a plan, or the contents of an EHC plan, including the school or setting named)
Watch our instruction videos on YouTube: Help with filling in appeal form 35a (to appeal a 'Refusal to assess' decision)
Your appeal reasons and supporting evidence can be submitted at this stage, but you can send in further information at a later date. However, check any correspondence from SEND Tribunals carefully as there are strict submission deadlines within this legal process.
- Be sure to include the views of the child or young person
- Organise your appeal so that it will be easy for the panel to read and understand your key points.
- Use paragraphs with headers and number your points, include a page which lists all your supporting documents (contents or appendices). Send copies of any documents, not the originals.
- Within your appeal refer to evidence that backs up your points
- Link your points to relevant law where you are able.
- It can be helpful to write an opening summary or bullet point your key issues.
- Remember the panel do not know your child, so make sure you include all their needs but...
- Be as concise as you can, particularly with background history. Stick to needs that are still relevant.
- The appeal will usually be registered by SEND Tribunals within 10 working days (may be longer during periods of high volume) of receipt and they will write to you with the hearing date, and your deadline for submitting further documents or evidence.
- The local authority will receive a copy and will be given 30 working days to respond including whether they oppose the appeal.
- Use this time to gather any further evidence. You can request information or a document from the local authority or school. If you can't get hold of information or a document important to your case, the SEND Tribunal has the power to make an order. Use their 'request for changes' form.
- You will need to let SEND Tribunals know who will be attending, they will ask you to complete an attendance form and include details of any supporters, representatives or witnesses that have agreed to attend.
- When you submit copies of further documents or evidence you must also send a copy to the local authority. Make sure you do this by the deadline as late evidence may not be accepted.
- Before the hearing* you will receive a copy of the full appeal bundle which includes details of the time and venue.
- The appeal will be considered by a panel - a tribunal judge and up to two specialist members,
- The decision will be communicated with you (and the local authority), within 10 working days of the hearing.
Use the appeal reference number in any correspondence with SEND Tribunals.
*'Refusal to assess' appeals are usually 'paper hearings' unless you request an oral hearing. A paper hearing means the appeal will be decided without the need for a court hearing.
When the local authority send their response to an appeal about the contents of the plan they will include a 'working document' which is an editable copy of the final EHC plan.
You can record your proposed changes you would like to see made to the plan and return it to the local authority for review.
This should be an ongoing process which enables agreement to be reached ahead of the hearing, for example the local authority might agree with some of your proposals but not all.
You can ask professionals to be your witness, establish whether they can provide a letter, report or witness statement which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment.
You could ask if they will come along to the hearing (no more than three witnesses), if they decline you can request a summons for them to attend - before you do this be sure they intend to support your case!
Private therapists and psychologists you call are likely to charge you a fee to attend a hearing
The local authority can ask professionals to attend as witnesses too - you will be able to see who they have called when you receive the bundle.
You will need to let SEND Tribunals know of your witnesses when you complete the attendance form.
This is where a conference call is arranged between the tribunal judge, the local authority and you (and/or your representative). You will be given a number to call and call joining instructions beforehand.
It might be that one party has requested this or perhaps the judge would like something clarified ahead of the hearing. Sometimes it can be just to set a new hearing date.
You can also request Telephone case management, perhaps where you would like some information from the local authority or clarification of something that cannot wait until the hearing. Use the 'request for changes' form (copied to the local authority) to explain why you would like the Tribunals service to arrange this for you.
If you decide to withdraw you will need permission from SEND Tribunals. Their decision will depend upon how close to the hearing it is. Sometimes the judge will insist both parties attend to discuss late settlement.
Where the local authority concedes before they have put in their response to the appeal, they must comply with the legal deadlines to assess, issue or amend a plan. (SEND Regulation 45).
Where you have come to an agreement after the local authority have sent in their response to the appeal, a signed document detailing what has been agreed should be signed by both parties and sent to the Tribunal. This is known as a ‘consent order’. As there are no deadlines which apply automatically we would advise you agree and set these out in the consent order.
'Refusal to assess' appeals are usually 'paper hearings' unless you request an oral hearing.
You do not have to attend but it is more helpful if you do so you can ask and answer any questions about your appeal.
- Oral hearings will be considered by a panel at a family court as close to your home as possible (for Suffolk this is usually Ipswich, Bury, Colchester or Norwich)
- Usually this is one day but could be over two days depending on the appeal.
- Sometimes a hearing may be adjourned.
- The panel consists of a tribunal judge and up to two specialist members.
- Your child may attend for all or part of the hearing, and all parents may attend
- The judge will introduce and give an overview of the hearing
- You will be asked questions and will also have the opportunity to ask any questions of the local authority and witnesses
- You can make a closing statement or summary, it can be helpful to bring with you a photo and your child's views that you can share
- The decision will be communicated to you (and the local authority), within 10 working days of the hearing.
Watch this video about what to expect at a SEND tribunal hearing:
The Tribunal decision will be communicated with you (and the local authority), within 10 working days of the hearing.
Following the decision, the local authority must comply with these timescales:
To start the assessment or re-assessment process - four weeks
To make an EHC plan - 5 weeks
To amend the school/college/institution - 2 weeks
To continue an EHC plan - immediately
To cease an EHC plan - immediately
Health and Social Care recommendations
Though the tribunal will not be able to make legally binding orders on health and social care, it has been made clear that their recommendations will generally be followed. The responsible health body or social care team must respond in writing to you within 5 weeks of the recommendation being made.
If a decision has been taken not to follow all or part of the recommendations, the health body or social care commissioner must give sufficiently detailed reasons for that decision.
Family Services Team (the local authority)
Anglia Care Trust (opens PDF) (for mediation)
SEND Tribunal service (organisation responsible for handling appeals)
'How to appeal a SEN decision' guide (SEND Tribunals)
IPSEA are a national charity providing legally based information, advice & support:
Suffolk Local Offer (where you can find out about the full range of services available locally for children with SEND)
SEND Code of Practice 2015 (explains the statutory duties of schools and the local authority)
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