Today (15th February 2018) is the deadline for Local Authorities to issue a final Education, Health and Care Plan (EHCP) which names your child’s proposed Secondary School within Section I.
Whilst the parental preference must be taken very seriously, the Local Authority can choose not to name the preference if it is deemed not appropriate for your child’s needs, it is incompatible with the efficient education of other children in the school, or if it is considered an unreasonable use of public expenditure. Where your preferred school is not named in Section I of the EHCP, you can, and should, appeal to the Special Educational Needs and Disability Tribunal (SENDIST).
It can be very useful to take specialist legal advice about appeals to SENDIST as they can be very complex and time consuming. It can also be a very difficult and stressful time for parents so we often recommend that parents instruct specialist education law solicitors to take the pressure off them by managing the case on their behalf. If you are considering appealing to SENDIST, or are in the middle of the appeals process and need some advice on the best way forward, please call us for a free initial telephone consultation on 0333 202 7175.
WHAT CAN BE APPEALED?
SENDIST deals with the following types of appeals:
- Refusal to make an EHC needs assessment
- Refusal to make an Education Health and Care Plan (EHCP)
- The content of an EHCP
- The support detailed in the EHCP
- The school named in an EHCP
- A refusal to make amendments to an EHCP following an Annual Review. This can include description of special educational needs, the special educational need and/or the school named in the EHCP
- The amendments / deletions made to an EHCP following an Annual Review
- Decision to cease to maintain an EHCP
Unfortunately, it is not possible to appeal about the way the Local Authority has carried out an assessment, or the length of time it took.
It is also currently not possible to appeal against sections about health and social care. Recently however, the SEND Tribunal ran a small trial which involved allowing Tribunal judges to make non-binding recommendations on health and social care issues, as well as issuing directions for education issues.
Following much positive feedback, this trial has now been extended. It will begin again in March 2018 and will run for two years. This is because it was felt that insufficient evidence was collated in the first small trial.
Whilst it is argued that the decisions hold no weight as they are non-binding, the initial trial found that in almost every case the Tribunal’s recommendations were implemented. It will be interesting to see how the trial develops and works in practice.
If you’re unsure as to whether you should appeal against your child’s EHCP, you should speak to one of our specialist SEN solicitors who can advise as to the best way forward for your particular case.
THE APPEAL PROCESS
An appeal is started by an appeal form. It is important to use the correct form and set out your case fully, including reference to the relevant legal tests. It is also useful at this stage to lodge grounds of appeal. This is a document which should set out the grounds on which you wish to base you appeal and provide a background to your case. It is very important to be specific when lodging grounds for appeal.
In many cases, you will need to secure a mediation certificate before you are able to start an appeal. You should check with the Tribunal, or take specialist legal advice about whether your type of appeal requires a mediation certificate.
Once the Tribunal receives the appeal form, it will process the appeal. This means that it will apply a timetable. The Tribunal is currently listing hearings using a standard 12 week process. The timetable is normally as follows:
Week 0 – The appeal is registered
Week 5 – The local authority must send its response to your appeal
Week 9 – All further evidence must be submitted
Week 12 – The final hearing takes place
Your appeal timetable will be set out in a letter the Tribunal will send you. It is very important that you read that letter carefully and make a note of all the relevant dates. You must comply with every deadline.
Once the case is presented, the Local Authority will respond and you will receive a copy of their response. Following this, you will need to file all additional evidence approximately one month before the Final Hearing. This will include reports from educational psychologists, speech and language therapists etc. At this stage, it is also useful to lodge a case statement which summarises the outcomes of the evidence gathered. A deadline date to file this further evidence will be provided by the Tribunal in their letter.
The next stage of the appeals process is to attend the final hearing. This will usually be heard by a panel of three persons; one Tribunal Judge and two specialist members with some experience in special educational needs. Witnesses can be called at this stage and may be a necessary part of your case. Often, it is useful to call the experts that have produced the reports which you intend to rely upon as evidence as they can attend as an expert witness. The Tribunal will usually limit the number of witnesses allowed; currently the limit is three witnesses for SEN appeals, and five for disability discrimination appeals.
The hearing will cover each issue separately. For example, when appealing against sections B, F and I of the EHCP, the Tribunal will consider section B first, followed by section F, and then section I. Any additional issues to be raised can also be done so by the end of the hearing.
Unfortunately, you will not receive the Tribunal’s decision on the day of the hearing. It can take anywhere up to three weeks to receive the written decision.
Once the decision has been issued, the Tribunal will make certain orders which the Local Authority must comply with within a fixed period, starting with the date that the decision was sent;
- To start the EHC assessment or re-assessment process – 4 weeks
- To make and maintain an EHCP – 5 weeks
- To change an EHCP – 5 weeks
- To continue to maintain an EHCP – with immediate effect
- To change the name of the school named in the CYP’s EHCP – 2 weeks
- To no longer maintain an EHCP – with immediate effect
If the Local Authority do not carry out an order within the time limit, and they cannot satisfactorily explain why this is the case, you are entitled to complain to the Local Government Ombudsman.
Appeals to the Special Educational Needs and Disability Tribunal (SENDIST) can be difficult. It can be useful to take specialist legal advice about a SENDIST appeal. If you have any questions or concerns, or would like help with a SENDIST appeal, our specialist education solicitors are here to help. If you would like to speak with one of our SEN solicitors, call us on 0333 202 7175 for a free initial telephone consultation.