How to obtain your right of appeal to the Special Educational Needs and Disability (SEND) Tribunal

According to the UK Government website, in the academic year 2022/23, the Tribunal Service recorded 14,000 registered special educational needs appeals, highlighting the increasing number of appeals lodged with the SEND Tribunal, which has gone up by a record of 24 per cent compared to the previous year. What these figures attest is that Local Authority decision-making in relation to SEND matters is alarmingly and consistently poor. More parents are having to utilise their right of appeal to ensure that their children with special educational needs receive appropriate support and provision. Accordingly, it is imperative that parents are aware of what specific situations can give rise to a Tribunal appeal.

Parents have a right of an appeal when a Local Authority makes one of the following decisions relating to their child’s special educational needs:

• Refusal to conduct an Education, Health and Care Needs assessment/re-assessment
• Refusal to issue an Education, Health and Care Plan (‘EHC plan’) after an assessment/re-assessment
• The educational contents and support detailed within an EHC plan (following the issue of a Final EHCP or refusal to amend at Annual Review)
• The educational placement named within an EHC plan  (following the issue of a Final EHCP or refusal to amend at Annual Review)
• Refusal to amendment to an EHC plan following an Annual Review.
• A decision to cease to maintain an EHC plan following an Annual Review. 

The Tribunal is also able to consider issues concerning a child or young person’s health or social care needs in certain circumstances including Sections C, D, G and H of an EHC plan. 

It is important to note that the Tribunal cannot decide on the way in which the Local Authority carried out the EHC assessment, or the length of time that it took. Certain sections of the EHC Plan cannot be appealed, to include any disputes about the wording of Sections A, J, K of the EHC plan. Technically Section E cannot be appealed, but the Tribunal has the power to make consequential changes to Section E as part of an appeal, regarding the contents of the EHC Plan.
If you decide to go ahead with an appeal, then there are strict time limits to submit your appeal. An appeal has to be submitted within 2 months after written notice of the decision or E Final HC plan covering letter is sent to parents or young person or, within 1 month from the date of issue of the mediation certificate, which is required for most appeals. However, the mediation certificate must be requested within 2 months of the written notice of the decision or E Final HC plan covering letter is sent to parents or young person.

We recommend that you lodge your appeal as soon as possible. The SEND Tribunal has become saturated with new appeals causing significant delays in which they are hearing appeals. Therefore, the longer you withhold lodging the appeal, the further behind the queue you will be for registration. The significant delays experienced by the SEND Tribunal has resulted in some hearings for recently registered appears (in July 2024) now being listed for July 2025.
The Local Authority’s refusal letter or covering letter accompanying an EHC plan will provide details as to your right of appeal, together with information as to your right to mediation and contact details of a mediation advisor or service. At this juncture, you can then either elect to go to mediation to try to get the Local Authority to reverse its decision or you can pursue a Tribunal appeal without engaging in mediation. 

In any event, mediation must be considered and a mediation certificate being issued before most appeals can be lodged with the Tribunal, with the exception of those made against the school of institution named within Section I of the EHC Plan only. This means that you must telephone the mediation company to obtain information regarding mediation, even if this is an avenue that you do not wish to pursue, and only thereafter can a mediation certificate be issued to you. 

It is worth noting that if you choose not to mediate with the Local Authority, your decision will not be scrutinised by the Local Authority or Tribunal during the appeal. Alternatively, if you decide to go ahead with mediation, then the mediator will arrange a meeting between you and the Local Authority within 30 calendar days. If an agreement cannot be reached during the mediation meeting, then you will be sent a mediation certificate and would then be able to make your appeal to the Tribunal. As explained obtaining the mediation certificate is required in most types of appeal,  to enable any new appeals to be registered.

If you are considering appealing against a Local Authority decision or in respect of your child or young person’s EHC Plan, we would be happy to assist you and you can contact us on 03332027175 or email education@hcbgroup.com. Equally, if you have an ongoing appeal upon which you require any advice, a member of our specialist Education Team would be happy to provide guidance and advice.