At SENDIASS, we are seeing a significant increase in the number of requests for support with appeals against the Local Authority’s (LA) decisions concerning EHC Plans and EHC Needs Assessments.
It is probably worth mentioning here, that in West Sussex it is SENAT (Special Educational Needs Assessment Team) who represent the LA in decisions around EHCNAs and EHC Plans so where we talk about appealing against an LA decision, it is in effect a decision made by SENAT but the LA is overall responsible.
What can I Appeal?
You are able to appeal to the SEND Tribunal if the LA:
- refuses to carry out an EHC needs Assessment or a re-assessment
- refuses to issue an EHC Plan
- issues or amends an EHC Plan but you disagree with any or all of Section B (special educational needs), Section F (special educational provision) or Section I (placement)
- decides not to amend an EHC Plan after an annual review
- decides to cease to maintain the EHC Plan
Parents and young people also currently have the right to appeal against the health and social care sections of the plan (Sections C, D, G and H).
Please note – Appeals resulting from amendments, re-assessments and the ceasing of an EHC Plan will be considered in a separate blog.
How can SENDIASS help
We will be able to explain the process to you and help you with the completion of forms and preparation of your case. We can help you think through what you want to get across during a mediation meeting or tribunal hearing but we will not make recommendations or decisions for you.
We may be able to accompany you to the mediation meeting or to the Tribunal hearing and support you in ensuring your voice is being heard, and if asked any questions we would answer from your perspective and not our own.
In order for the support we offer to be as effective as possible with your appeal process, here are some things to help you:
Timing
You have 2 months from the date of the letter (either stating that the Local Authority (LA) are refusing to Assess or that accompanies the final EHC Plan), or 1 month from the mediation certificate (whichever is the later) to submit your appeal paperwork to the SEND Tribunal.
Although this may seem a long time, there may be a lot of paperwork that needs to be gathered and some conversations and appointments needed so it is worth starting as soon as you can. Leaving it to the last minute may mean that your appeal is not as effective as it could be as vital information may be missing.
Action: As soon as you start considering that you may want to appeal you can give us a call and we can talk you through the process to make sure you haven’t missed anything. In some circumstances you may already know the LA’s decision before you receive the letter so do make contact with us at this stage.
Tip: Mark the above dates in your diary as soon as you know them with a reminder for at least 2 weeks before so that you have time to make any last minute changes or additions to your appeal before needing to submit it.
Initial process
Ideally by the time you receive the formal decision letter from the LA, you will have already had conversations with your planning coordinator about decisions being made and will have a good understanding of why they do not agree with what you have asked for. If you do not understand the reasons or you have not been told, do not be afraid to ask them for more clarity.
If despite these conversations, you still do not agree with the decisions then you will need to call Global Mediation to discuss whether to go to mediation or straight to appeal (you can read more about the differences in our leaflet – Lodging an appeal with the SEN & Disability Tribunal).
If you chose to go straight to appeal then Global will issue you with a certificate and you are then able to submit your appeal with the SEND Tribunal. In order to do this you will need to complete an appeal form. There is one for Refusal to Assess (SEND35a) and a different one for appealing sections of the Final EHC Plan (SEND35).
Once you have completed the form and gathered all the required paperwork (checklist is on the forms) you can then submit it to the SEND Tribunal. They prefer your appeal and paperwork to be emailed (this is also quicker) but if you are not able to do this then you can post hard (paper) copies instead. However, they do ask for an email address or phone number in case they need to contact you.
Important: Even if we have agreed to attend the tribunal hearing with you at this stage, please do not put the advisers name on this appeal form (under representative). You will receive another form for this to be done – see below.
Tip: As soon as you think you may appeal, start to have a look at the form that applies to your appeal (you can usually print a blank copy). You can then start jotting down notes for the different sections. This will prevent you having to do it all at once and perhaps forgetting something.
Appeal Accepted
You should hear back from SEND Tribunal within 10 working days with a decision about whether the appeal has been registered (if not, it is usually because some vital paperwork is missing or you have missed the deadline). If registered, the letter will set out a timetable including a list of deadlines for you and for the LA.
You will also receive an attendance form and a request for changes form.
Refusal to Assess appeals are decided on the paperwork only but all other appeals will need to be decided at a hearing. If we have agreed to attend the Tribunal hearing with you then you can now add the advisors name to the attendance form. This is an example of the Parental Attendance form:
If you have any witnesses, you will also need to complete their details on this form, so please get their permission first.
The request for changes form will need to be used if you make any changes or additions to the initial appeal paperwork.
The hearing or decision is usually held within approx. 12 weeks of accepting the appeal.
Action: As soon as you have the acceptance letter get in touch with us if you have any questions or feel you may need support – 0330 222 8555. If you can email through the letter with the deadlines then this is even more helpful.
Tip: Mark these dates in your diary (with reminders a couple of weeks or so beforehand in case you need to take any action).
Further information around appeals can be found:
Videos about the tribunal process
Ipsea’s Refusal to assess pack