My final evidence deadline is soon but I am still waiting for an assessment to take place. Can I submit the report as evidence even if this is after the deadline? Does the SEND Tribunal accept late evidence? Expand The evidence deadline has some flexibility. If arrangements have been made for a particular assessment beyond that deadline, then you can ask the SEND Tribunal to extend this deadline using the Request for Change form (Form SEND 7) (having sought the LA’s view first). This may result in a postponement of the hearing. However, if your hearing date is some time away and extending the deadline should not impact it, when you ask for the deadline to be extended (please see below), you should explain this and ask for the hearing date to remain the same. You need to let the SEND Tribunal know. The SEND Tribunal will not be happy with a parent or young person who does not tell them about a report which is due after the evidence deadline, particularly when they have known about the delay for some time. Full disclosure should be made to the SEND Tribunal when an assessment is to be carried out, including the date the report is due and any delays encountered. It is possible to apply for late evidence to be submitted after this deadline, including bringing late evidence on the day. However, it will be up to the SEND Tribunal as to whether or not this should be accepted. In deciding whether to accept your report as late evidence, the SEND Tribunal will consider: why the evidence was submitted late and whether it could have been submitted earlier, so say why it is being submitted late whether the evidence is relevant, so explain why it is relevant whether the evidence is in dispute, whether it could be offered orally, or other factors, so address these and all relevant factors, and whether it is fair and just to exclude the evidence, so explain why it would not be fair and just to exclude the evidence. If you need to submit evidence after the final evidence deadline, you should use the Request for Change form (Form SEND 7) (having sought the LA’s view first) to ask the SEND Tribunal to accept it. The additional evidence should be submitted alongside the Request for Change form, rather than waiting for a response from the SEND Tribunal, so send it at the same time as your form. For guidance on what to cover in your request see our information on late evidence. If the SEND Tribunal refuses permission the additional evidence will simply be disregarded.
My local authority has said it is going to amend my child’s EHC plan following the annual review. I don’t agree with the local authority’s proposed changes. When can I appeal? Expand If you are not happy with the changes your local authority (LA) is making, you can appeal your child’s EHC plan once it is issued. You cannot appeal before this point (for example when your LA writes to tell you it has decided to amend the plan). If your LA is late to issue the final amended EHC plan, you can take action. You will need to make sure your appeal is sent to the SEND Tribunal within 2 months of the date on the LA’s letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever is later. Please see our pages on how to submit an appeal and contents appeals for more information.
My local authority’s decision letter is dated 1 October and my mediation certificate is dated 29 November. Are there any special rules about when appeals must be submitted over the Christmas period? Are there other times when the deadline changes? Expand Yes there are. Generally speaking appeals need to be submitted within 2 months of the date on the decision letter or one month from the date on the mediation certificate, whichever is later. Christmas holidays In your case your decision letter is 1 October, so the 2 months’ timescale expires on 1 December. Your mediation certificate is dated 29 November and the one month expires on 29 December. This is the later of the two dates. Therefore your appeal needs to be submitted over the Christmas period. There are special rules for this. If the two months/one month deadline ends on or between 25 December to 1 January, as in your case, you have until the next working day in January to appeal. Therefore, you have until the next working day in January to submit your appeal form. Summer holidays The only other time the deadline for appeals to be made changes slightly is if the two months/one month deadline ends in August, then you have until the first working day in September to get your appeal form to the SEND Tribunal. Please note that these changes to the deadline apply to SEN appeals in the SEND Tribunal. They do not apply to claims about disability discrimination in the SEND Tribunal.
I am appealing my child’s EHC plan. Do I check to see if I am eligible for legal aid in my name as the parent, or if my child is eligible for legal aid in their name? Expand Eligible people can obtain funding for ‘Legal Help’ for appeals to the SEND Tribunal from the Legal Aid Agency. Legal Help covers the preparation of the case (from submitting the appeal form through to preparation for the hearing) but does not cover representation at the hearing (unless in exceptional circumstances). You will want to check to see if you are eligible for this support in your name. This is because where the case concerns a child and the parents have the right of appeal, the means of the parents will be assessed. You can check your eligibility online: https://www.gov.uk/check-legal-aid and you should do this even if you think you might not be eligible, just in case you are. If you are eligible for Legal Help, a solicitor can draft and submit your appeal form for you. Even if you have already submitted the appeal form, you should see if you can get Legal Help to assist with the preparation of the evidence for the appeal. Legal Help can also cover the cost of obtaining private reports as evidence to support your case.
My child lives with me and has no contact with my ex-partner. Will the appeal paperwork go to my ex-partner as well? What can I do if this not appropriate? Expand If you share parental responsibility for your child with another person, you should supply the names and addresses of those persons on your appeal form where it asks you to. This is only “if possible”. If you have a reason for not wishing to include this information, then you should say so and why. Alternatively, you can provide the name and contact details for your ex-partner if it is possible but still explain why they should not receive details of the appeal. This form will be copied to the local authority and distributed as part of the documents for the hearing (known as the ‘bundle’). This is also the case if you were to share care of the child with another person and consider they should not receive details of the appeal.
I am a foster carer caring for a child with an EHC plan. The EHC plan does not contain all the support they need. Can I appeal the EHC plan? Expand Yes. In education law, the term “parent” includes: people with parental responsibility of a child or young person, as well as people who have care of a child or young person (for example, a grandparent who a child lives with or a foster carer). This is what “parent” means in the law and guidance about special educational needs including the Children and Families Act 2014, The SEND Regulations 2014 and the SEND Code of Practice 2015. Therefore you are considered a “parent” and have rights in section 51 of the Children and Families Act 2014 to make an appeal as such. Please also note the rules for legal aid are different for foster carers and you are likely to be eligible. Please see our information for foster carers on our website to find out more.
The deadline for my appeal to be made has passed. Am I too late to try to appeal? Expand An SEN appeal has to be received by the SEND Tribunal within two months from the date on the decision letter/ letter enclosing the final EHC plan or one month from the date on the mediation certificate, whichever is the later. If you missed the deadline, the SEND Tribunal may still allow you to submit it late. The SEND Tribunal has the discretion to extend these time limits if the letter that the LA sent to you informing you of its decision did not tell you everything it was required to, such as: your right of appeal to the SEND Tribunal the time limit within which the appeal must be made the availability of dispute resolution arrangements, and/or the fact that use of such arrangements does not prejudice the right to appeal Double-check whether the decision letter you received contains all the necessary information. You can check this on our pages. If the appeal is out of time, the form should be submitted as soon as possible explaining why it is late. If that was because the LA’s decision letter did not contain all the necessary information, make that clear. You will want to explain what special circumstances apply and why it would be fair and just to allow an extension of the deadline. A SEND Tribunal judge will then consider the appeal form and may allow an extension if there are special circumstances, and it is fair and just to do so.
When does the SEND Tribunal send a copy of my appeal to my local authority? When does it have to respond? Expand The SEND Tribunal will start processing your appeal by registering it. If the appeal is not registered because key information and/or documents are missing, it will be sent back to you with a list of what is required and a reminder that an extension of the deadline for making the appeal may be required. You will receive a registration letter, as will your local authority (LA). The registration letter contains very important information called “Case Directions” and should be read very carefully. While sending the registration letter, the SEND Tribunal will also send a copy of your appeal to your LA. Within 30 working days of the appeal being sent to it, the LA must respond to the grounds of appeal. Your LA must send its response to you and the SEND Tribunal at the same time.
My local authority has responded to my appeal but the response does not contain everything it was required to provide. What can I do? Expand Your local authority (LA) must make sure its response addresses the points and provide all the information that was listed at the end of the registration letter and Case Directions. If your LA does not include in the response everything that the SEND Tribunal directed, you should submit a Request for Changes form (Form SEND 7) (having sought the LA’s view first) to ask the SEND Tribunal to direct the LA to provide the missing information. You can find out more information about Request for Changes forms on our website.
I have an appeal underway but we are moving to a different area. What will that mean for my appeal? Expand If you are moving to live in another local authority (LA) mid-way through a SEND Tribunal appeal you must inform the SEND Tribunal immediately. The SEND Tribunal will then contact the new LA to tell them about the appeal and the new LA may be substituted (replaced or exchanged) as a party to the appeal as if the new LA had made the decision. In an appeal about the contents of an EHC plan: the SEND Tribunal will usually suspend (pause) the appeal to allow the new LA to follow the transfer of an EHC plan process which involves reviewing the plan and may include a re-assessment. The new LA will have between three and twelve months to complete a review of the EHC plan. Therefore, moving LAs mid-way through a contents appeal could cause significant delay to the appeal's conclusion. If you are still unhappy with the plan following this transfer process, the SEND Tribunal should reinstate (restart) the appeal and at that point substitute or replace the new LA as the other party. The old LA will take no further part in the appeal. You could ask the SEND Tribunal to consider substituting or replacing the new LA as party to the appeal without first reviewing the plan, especially if the matter is urgent. You will want to state any reasons why delay would prejudice your child and would not be in the interests of fairness. There will be a new timetable for supplying evidence. If the appeal is about the previous LA’s refusal to assess or refusal to issue an EHC plan the new LA will be substituted as a party to the appeal immediately, unless there are good reasons why it should not take over the appeal. There will be a new timetable for supplying evidence, however.
I have a privately instructed report from an educational psychologist I want to submit as part of my evidence. Will the SEND Tribunal give more weight to my report compared to my local authority’s commissioned report? Expand Sometimes parents and young people decide that an additional expert report is required to support their case during an appeal. These can be funded via Legal Help if the parent or young person is eligible or paid for privately. Private reports won’t be given any less or more weight than an NHS or LA-commissioned report just because they are private. The SEND Tribunal is concerned only with whether the report-writer has the relevant expertise to make the recommendations in the report. The SEND Tribunal has guidance for expert witnesses’ reports: SEND Tribunal: if you're asked to be a witness - GOV.UK (www.gov.uk). It also has certain requirements for expert reports, in terms of length, format, and age. You can find out more on this on our evidence and bundle page. In addition, the barristers’ chambers, 3 Paper Buildings, have produced Top ten tips for getting the most from SEN expert witnesses which may be helpful to consider if experts are commissioned. Please see: Top-ten-tips-for-getting-the-most-from-SEN-expert-witnesses-Matthew-Wyard.docx.pdf (3pb.co.uk).
I am not eligible for Legal Help to help pay for reports and cannot afford to pay for private reports in my appeal. How else can I access information and the evidence that I need to support my appeal? Expand Asking your local authority You can ask your local authority (LA) to provide details of the help that it expects schools to provide using our template letter 17. This is explained in more detail in the refusal to assess appeals pack and the refusal to issue EHC plan appeals pack, as this information is particularly helpful in these types of appeals. Asking the SEND Tribunal for a direction or order The SEND Tribunal has certain powers to require someone to provide you with information. It can: · Permit or require a party or another person to provide documents, information or submissions to the SEND Tribunal or a party to the proceedings. This could include information from a school, from a therapist, or from social care or health care for example. · Order any person to answer any question or produce any document in that person’s possession or control which relates to any issue in the appeal. Again, this is not simply limited to the LA. It could include a wide range of people. You can ask the SEND Tribunal to direct that the LA arranges a specific assessment to provide further evidence (using the Request for Changes form) although some SEND Tribunal registrars and judges (but not all) take the view that the SEND Tribunal does not have the power to order an LA to carry out a new assessment. For this reason, we suggest you phrase the request as a request for information on a specific issue rather than an assessment. A request for an assessment is more likely to be successful where the appeal follows an EHC needs assessment which was not conducted properly; for example, where the LA failed to obtain evidence from an educational psychologist. This could be helpful where there is no up-to-date evidence about the child or young person, despite a clear need for such evidence, and the parents or young person are unable to obtain private reports. Be aware too that LAs should submit both evidence which is unhelpful to their case as well as evidence which supports its case. This has been confirmed by case law. The role of an education authority as a public body at such a hearing is to assist the SEND Tribunal by making all relevant information available. Its role is not to provide only so much information as to assist its own case. At the hearing, the LA should place all of its cards on the table, including those which might assist your case. So, if the LA has information which is helpful to you, it must still submit it. Asking school/ college for information Parents of pupils at maintained schools (mainstream or special) and non-maintained special schools have a right to a copy of their child’s educational record. If you believe your child’s school record includes some key evidence, you can ask the school for a copy of this. You can use our template letter 18 to help you. If your appeal is about your LA’s refusal to assess or refusal to issue an EHC plan, you can ask for detailed information about the school’s or college’s SEN budget and provision and the number of children/young people it covers can be requested. You can use our template letter 19 to help you. The SEN Information Report (which maintained schools, maintained nursery schools and Academies must produce and publish on their website) must set out the type and extent of special educational provision that they can provide. You could also obtain information through the Data Protection Act 2018 or the Freedom of Information Act 2000.
I am not sure which witnesses I need to ask to attend my hearing. Are there any rules or guidance about witnesses attending a SEND Tribunal appeal? Expand You will need to think carefully about who you would like as witness(es). Generally, a witness will only be helpful if they have knowledge of your child in a relevant professional context. If you are asking for speech and language therapy provision to be included in section F for example, a speech and language therapist who says your child needs the provision you are seeking who is currently working with them may be a very helpful witness. If your appeal involves section I (placement) it is very helpful (if not essential) to have a witness from your choice of school, especially if it is an independent school. Although there is no legal bar on the number of witnesses, SEND Tribunal practice is to limit the number of witnesses in an SEN appeal to three. If you want more witnesses than that, then an application will need to be made for the additional witnesses with reasons. Use the Request for Change form (SEND7) to make this request and see information about how to do this on our key forms page. If you have someone who would be helpful to attend as a witness and they are willing to attend but feel constrained unless they are ordered to attend (for example, a teacher who wants to support the family but has been told by their employer they cannot attend) then you can apply to the SEND Tribunal for a witness summons. This application for a witness summons should be made using the Request for Change form, or form SEND30: Request for a Witness Summons. It should be requested well in advance of the hearing (unless the SEND Tribunal directs otherwise, a summons must give the witness at least 14 days’ notice of the hearing). The name and address of the witness will need to be given, but this can be their workplace address. It will be necessary to say why this person’s evidence is important and why they might not attend voluntarily. If granted, the summons will be sent to you and it is your responsibility to serve it on the witness (as in make sure they get it). All witnesses can claim travel expenses and a fixed amount for loss of earnings from the SEND Tribunal. Witnesses will normally stay for the whole hearing. If a witness can only attend part of a hearing, the SEND Tribunal may accommodate this. The sooner a party requests the SEND Tribunal do so the better. Judicial guidance explains that witnesses will not be allowed to attend the hearing unless they have previously provided a written report or witness statement as written evidence. Make sure any witnesses you decide to ask to attend refer to the SEND Tribunal’s guidance ‘if you're asked to be a witness’ when writing their statement/report and that their report or statement includes everything requested. There are also certain requirements for witness statements and professional reports, in terms of length, format, and age. You can find out more on this on our evidence and bundle page.
The Case Directions say that my local authority needs to get my child’s views as part of our appeal. What does my local authority need to do? Expand When a parent makes a SEND Tribunal appeal about their child, the local authority’s (LA) response to the appeal must include the views of the child about the issues raised by the appeal, or the reason the LA has not gathered the child’s views. This is required under procedural rules about how appeals are managed by the SEND Tribunal (rule 21(2)(e)). How LAs need to do this is set out in judicial guidance. The LA must ask someone to help your child express their views who: is trusted by your child and usually with whom they have an existing relationship, such as a teacher or social worker, and understands how your child can best communicate effectively (whether through word, writing, electronic means, sign or drawing, for example). If you are unhappy with how your LA plans to gather your child’s views, or how this has been done, you should raise it with the LA and remind them of what the judicial guidance says.
If my appeal is successful, will the SEND Tribunal order my LA to pay me back for the costs I have incurred? Expand Unlike in other areas of law, the general rule in a SEND Tribunal appeal is "no costs", meaning SEND Tribunal orders are not generally ended with a direction for one party to pay another’s costs. A party can apply for a “costs order” but the circumstances under which it can or will do so are limited - the other party would have to have behaved extremely unreasonably. However, just because one party is successful in a case does not mean it was unreasonable for the other party to defend it - a party is entitled to defend a weak case. Costs orders are therefore the exception rather than the rule and in our experience are rare. If the SEND Tribunal does see fit to make a costs order, it is able to order costs which are “incidental to” the appeal. We would typically expect this to mean costs which are directly associated with appealing, such as legal fees or the cost of a witness attending the appeal hearing. Even if your appeal is successful, the SEND Tribunal is highly unlikely to order your LA to refund you for costs incurred by you choosing to pay for the special educational provision you think should be in your child's EHC plan whilst you wait for an appeal about the content of the EHC plan to be heard, or pay an independent school’s fees so your child can attend whilst you wait for the SEND Tribunal to decide whether that school should be named in their EHC plan. Could I complain to the LGSCO, to see if it will recommend for me to be reimbursed? No, the Local Government and Social Care Ombudsman (LGSCO) would not be able take on a complaint of this kind. As explained on its website, the LGSCO cannot deal with complaints about issues which can be appealed to the SEND Tribunal, or about issues which have already been appealed.
I have a privately instructed Occupational Therapy (‘OT’) report which I would like to submit as evidence in an appeal to the SEND Tribunal, but it does not comply with the new rules on evidence. I have not yet submitted my appeal, what should I do? Expand In this situation you can explain clearly in the ‘Reasons for appeal’ section of the SEND 35 appeal form why the OT report is relevant to your appeal, for example because it supports the changes you are requesting to Sections B and F of the EHC plan, and that (if applicable) you are unable to obtain any other OT report at this stage. Once your appeal has been registered, you can then use the SEND 7 ‘Request for Change’ form process explained here to request permission from the SEND Tribunal to admit the OT report in full, and if this is not acceptable, to admit those pages of the OT report which support the changes you are requesting to Sections B and F of the EHC plan.
I'm appealing to the SEND Tribunal. Before making its decision, the LA didn't contact me or ask for my views. Is there a legal process the LA must follow before making decisions? What can the SEND Tribunal do if the process was not followed? Expand Before making certain decisions, a local authority (LA) must follow required legal processes, such as consulting with a parent or young person. These decisions are: a decision not to secure an EHC needs assessment, or a needs re-assessment for a child or young person a decision not to issue an EHC plan where an EHC plan is maintained for a child or young person, decisions about: the special educational needs as specified in the plan the special educational provision specified in the plan, or the school or other institution (or type) named in the plan a decision not to amend or replace an EHC plan it maintains for a child or young person following a review or re-assessment, or a decision to cease to maintain (stop) an EHC plan. Recent case law confirms that if an LA makes one of these decisions without following the correct legal process, the SEND Tribunal can decide that the LA’s decision is invalid and set it aside. This will depend on the seriousness and significance of the LA’s procedural faults. When you make your appeal, you should: explain why the relevant legal test has (or has not, if relevant) been met, and detail any procedural faults in the LA’s decision-making process, and what impact that had on your appeal form so that the SEND Tribunal is made aware and include any evidence you have. If you have already submitted your appeal, you can do this when you submit further evidence. If you need more support, please contact us for advice.