How we help Get support Education, Health and Care plans Appealing to the SEND Tribunal General advice for all appeals Preparing the case before the hearing There are a number of steps you will need to take to prepare for the hearing. Once the appeal has been registered, you will need to make sure you copy anything you send to the SEND Tribunal to the local authority (“LA”). The LA need to see any evidence you submit or any applications you make to the Tribunal. Similarly, the LA must send you copies of any evidence or correspondence they send to the SEND Tribunal. This is because the parties are meant to be sharing information in order to resolve the dispute, not hiding facts from each other. If the LA communicates with or sends documents to the SEND Tribunal using a system which you cannot access, you should inform the LA not to and notify the SEND Tribunal. Note that even if the LA sends you messages or documents separately, you would not be able to check if the LA sent the SEND Tribunal the same ones and did so on time. The SEND Tribunal has confirmed to us that the party sending communication has to make sure it is copied to the other party in a way that they can access and LAs can use non-encrypted email to do this. If you want to make changes to your appeal or communicate with the SEND Tribunal during the course of the appeal, then you should use the Request for Changes form. You can download this from the SEND Tribunal site. You can use the Request for Changes form to, for example, request that a deadline is extended, ask the Tribunal to make an order, or change any information you previously submitted (for example, if you want to bring another witness). Before submitting a Request for Change form you must seek the other party’s response and this should be included on the form. If the Request for Change concerns widening the appeal, for example to include sections B and F of the EHC plan where you have only appealed against section I, early warning to the other party of your intention to change the grounds is essential and the request should explain the reasons for the changes. If the Request is urgent, and you are still waiting for a response from the LA, you should make clear that you have sought the LA‘s views and include a copy of your email to the LA if possible. If you believe you will not be able to fully participate in the hearing because of your own needs, you should ask the Tribunal to make reasonable adjustments. You should make this request as soon as possible, explaining what adjustments you need and why. What adjustments are reasonable depends on your needs; adjustments could range from being given extra time to ask and answer questions or locate documents, to having a face-to-face rather than virtual hearing. Case management If the case is complex or there are issues which need to be sorted out before the hearing, you may be asked to have a telephone case management hearing. A case management hearing is an opportunity for the SEND Tribunal to consider any preliminary issues which need to be sorted out before the hearing can be held – for example, whether further assessments need to be carried out, or where one party wants to postpone the hearing and the other does not. It may also be an opportunity to narrow down the issues in dispute. If there is a matter which needs to be resolved before the hearing, you can make a request for a telephone case management hearing using the Request for Changes form. Evidence It is important to obtain any written evidence as soon as you can. It is best to send in all your written evidence with your appeal form because this means you have the main substance of the case set out with supporting evidence right from the start and you may discover more about the LA’s arguments if it is able to respond fully. If you have a good case and evidence, the LA may give in rather than fight the appeal. If you think you need to send in evidence later in the process, tell the SEND Tribunal what you expect to obtain and when, and submit it by the evidence deadline you are given. If you are having difficulty getting information which is relevant to your case from the LA, you can use the Request for Changes form to write to the SEND Tribunal explaining what the document is and ask the SEND Tribunal for a ‘direction’ to make the LA release the document. Unless the LA has a good reason for not providing the document the SEND Tribunal will order the LA to release it. If you are eligible for legal aid, this could cover the cost of obtaining independent assessments and reports. See the page on where to get help for more information. If you know that an assessment or report will not be available until after the evidence deadline then you need to let the SEND Tribunal know and seek an extension (again using the Request for Changes form). It is possible to apply for late evidence to be submitted after this deadline, including bringing late evidence on the day, but it will be up to the SEND Tribunal as to whether or not this should be accepted. It is always best to tell them in advance. Witnesses Both parties will need to notify the SEND Tribunal who will be attending the hearing using the form the Tribunal sends them (previously the Attendance Form but a new Case Review Form was introduced in April 2022). This will be sent out with the registration letter, which will also contain the deadline by which this needs to be submitted. The Tribunal has indicated that witnesses will only be permitted to attend the hearing if they have previously submitted a report or written witness statement. You should call witnesses who will be able to give evidence relevant to your case. It will normally be helpful to have someone from the child or young person’s school or college (such as the SENCO or head teacher). If you want a particular school to be named in the EHC plan, you will need someone from that school to attend. If there is a dispute about the level of the child or young person’s needs, it may be helpful to have a professional witness such as, for example, a speech and language therapist who has worked with the child or young person. All witnesses will be asked by the SEND Tribunal about the facts of the case. They are not meant to be arguing one ‘side’ or the other. You shouldn’t worry if someone from the child or young person’s school or college is asked to attend as a witness by the LA; it does not mean that they are on the LA’s side. Parties may appoint a representative (whether a legal representative or not), who can act as a representative or otherwise assist in presenting the party’s case at the hearing. This person will not count as a witness, but you should include them on the same form and explain they will be representing or assisting you at the hearing. The Tribunal has indicated that it will not accept parties putting “to be confirmed” on the Case Review Form/Attendance Form. If the LA does this, you could bring it to the Tribunal’s attention, although they should pick this up and raise it with the LA. The hearing bundle The LA will put all the evidence sent by the parent or young person and the LA together into a full pack of documents for the hearing, which is referred to as the ‘bundle’. There are limits to how long the bundle can be depending on the type of appeal. This is set out in the SEND Tribunal’s bundle guidance. The LA must include all of the evidence the parent or young person has sent in the bundle. It’s always worth checking before the hearing in case anything has been left out. If the parent or young person sends evidence which goes above the page limit, the LA must still include it and the Tribunal will decide whether or not to consider it. Settlement or withdrawal of appeals Most appeals don’t actually get to a hearing, because the parties come to an agreement or the LA agrees to what the parent or young person is asking for. Where the LA concedes before it has put in a response, it has to comply with the deadlines in SEND Reg 45 for assessing, issuing or amending an EHC plan. Where the LA has already put in a response, the parties should write up a document setting out what has been agreed and then both sign it. This is called a draft or proposed ‘consent order’. It should be sent to the Tribunal with an explanation that the parties have agreed that the appeal can be resolved by consent. This should set out what has been agreed and the dates by which the LA is going to act. There are no deadlines which will apply automatically so parties will need to agree these. The parties could simply state that the deadlines in SEND Reg 44 apply. The Tribunal will consider the parties’ request and, if it agrees to end the appeal in this way, it will send them an order to confirm this. The Tribunal will not generally agree to issue consent orders that are requested within five working days of the hearing date. The parties should still send the request to the Tribunal so the panel is aware that they have reached agreement but the Tribunal will ask the parties to attend the hearing, usually simply to explain why it took a long time to reach agreement and to discuss the request. For more information on specific types of appeal see the sections about refusal to assess appeals and appeals about the contents of an EHC plan. If you can’t find the answer to your question, you can book an appointment to speak with us.