Appealing an Education, Health & Care Plan or a Statement of Special Educational Needs

This how to guide sets out the steps that you can take to appeal a decision relating to your child’s statement of special educational needs or education, health and care plan including how to lodge an appeal, relevant timescales and how to prepare.

When might I need to appeal against a plan or statement for my child’s Special Educational Needs?

If you disagree with a decision made by the local authority relating to your child’s special educational needs, you can appeal to an independent body called the First Tier Tribunal for Special Educational Needs and Disability (SEND).

What does an EHC Plan contain? 

As a statutory minimum, EHC plans must include the following sections, which must be separately labelled from each other using the letters below:

A. The views, interests and aspirations of the child and his or her parents or the young person. 

B. The child or young person’s special educational needs.

C. The child or young person’s health needs which are related to their SEN.

D. The child or young person’s social care needs which are related to their SEN or to a disability.

E. The outcomes sought for the child or the young person. This should include outcomes for adult life. The EHC plan should also identify the arrangements for the setting of shorter term targets by the early years provider, school, college or other education or training provider.

F. The special educational provision required by the child or the young person.

G. Any health provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. Where an Individual Health Care Plan is made for them, that plan should be included.

H1. Any social care provision which must be made for a child or young person under 18 resulting from section 2 of the Chronically Sick and Disabled Persons Act 1970.

H2. Any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN. This will include any adult social care provision being provided to meet a young person’s eligible needs (through a statutory care and support plan) under the Care Act 2014.

I. The name and type of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution (or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person).

J. Where there is a Personal Budget, the details of how the Personal Budget will support particular outcomes, the provision it will be used for including any flexibility in its usage and the arrangements for any direct payments for education, health and social care. The special educational needs and outcomes that are to be met by any direct payment must be specified.

K. The advice and information gathered during the EHC needs assessment must be attached (in appendices). There should be a list of this advice and information.

Mediation

Parents and young people who wish to make an appeal to the Tribunal may do so only after they have contacted an independent mediation adviser and discussed whether mediation might be a suitable way of resolving the disagreement. It is not compulsory that you go ahead with mediation but consideration must be given to it and to appeal a parent will require a mediation certificate in most types of SEN appeals.

However, Mediation is not required for the following appeals:

• An appeal relating only to a school or institution named in the EHCP,
• An appeal relating to the type of school or institution named in the EHCP,
• An appeal relating to the fact that the EHCP does not name a school or institution in the EHCP,
• A claim for Disability Discrimination under the Equality Act 2010.

If the parent or young person decides to proceed with mediation then the local authority must ensure that a mediation session takes place within 30 days of the mediation adviser informing the local authority that the parent or young person wants to go to mediation, although it may delegate the arrangement of the session to the mediator. 

If the parent or young person wants to go to mediation then the local authority must also take part. If the local authority is unable to arrange mediation in a case which involves a disagreement on a matter which can be appealed to the Tribunal within 30 days it must tell the mediator. The mediation adviser must then issue a certificate within three days. On receipt of the certificate the parent or young person could decide whether to appeal immediately or to wait for mediation to take place. If the parent or young person initially indicates that they want to go to mediation about a matter which can be appealed to the Tribunal but changes their mind, they can contact the mediation adviser who can then issue a certificate with which an appeal can be registered.

Once mediation is completed about a matter which can be appealed to the Tribunal the mediation adviser must issue a certificate to the parent or young person within three working days confirming that it has concluded. Mediation will not always lead to complete agreement between the parties and if the parent or young person still wants to appeal to the Tribunal following mediation they must send the certificate to the Tribunal when they register their appeal. Parents and young people have one month from receiving the certificate to register an appeal with the Tribunal or two months from the original decision by the local authority – whichever is the later. The certificate will not set out any details about what happened in the mediation – it will simply state the mediation was completed at a given date.

Mediation is a voluntary meeting with a trained independent and impartial third person who can try and assist the parties in reaching agreements where there are disputes. The mediator will not make any decisions but instead try and assist the parties to reach a joint decision. In addition, the mediator will try and ascertain the views of the child or young person if they are not party to the mediation.

Appeals to the First Tier Tribunal (Special Educational Needs and Disability)

The First Tier Tribunal is an Independent Tribunal that can hear appeals by parents or young people (up to the age of 25). You can appeal if the local authority: 

• refuses to arrange an EHC assessment of the child or young person’s special educational needs, following a request by a child’s parents, young person or school, college;
• refuses to issue and EHC Plan for the child or young person after completing an EHC assessment;
• refuses to arrange a EHC reassessment of the child or young person (following a request by the child’s parent, young person’s or school, college) if the local authority has not carried out an EHC assessment in the last six months;
• has finalised, or has changed a previous EHC plan, and you disagree with one or all of the following:
  
  • The Section which specifies the child or young person’s special educational needs in Section B of the EHC Plan;
  • The Section which specifies special educational provision in Section F of the EHC Plan;
  • The school/college/institution or type of school/college/institution named in Section I of the EHC Plan or type of school named in Section I of the EHC Plan;
  • The local authority not naming a school/college/institution in Section I of the EHC Plan. 

Health and Social Care

On 20th July 2021, the Department for Education confirmed the extended powers given to the special educational needs and disability (SEND) tribunal to hear appeals and make non-binding recommendations about health and social care aspects of education, health and care (EHC) plans, provided those appeals also included education elements, will continue. Recommendations are non-binding but should not be dismissed without due consideration. Where a social care team or health commissioning body decides not to follow the SEND Tribunal’s recommendations, they should provide reasons within 5 weeks of the Tribunal’s decision being issued. Health and social care provision which educates or trains a child or young person is treated as special educational provision rather than health and social care provision. 

The 12 week timetable

The SEND Tribunal aim to set a hearing date approximately 12 weeks from the date your appeal was registered. 

Week 0	Appeal registered
Week 6	LA response and attendance form
Week 9	All further evidence
Week 12	Hearing

How to lodge an appeal to the First Tier Tribunal 

To submit an appeal to the First Tier Tribunal an appeal form must be completed. If you are appealing a decision regarding an EHCP then the correct form would be a SEND35. However, there is an exception if you are appealing a ‘refusal to assess’ decision. The correct form in this case is a SEND35A.

There will be a check list on the front of the form which outlines any documents which are required to be submitted to register the appeal. This will include a copy of the mediation certificate (if required for this type of appeal). You may also wish to submit any other documents which you feel will support your appeal.

The parent or young person should fully explain in the appeal form why they are appealing. If any amendments are sought then the parents should specify these amendments fully rather than only stating that they disagree with the content.

The process up to the hearing

When the appeal is registered, case directions, an attendance form and a case management questionnaire are issued. The directions will set dates by which you must take action and send the local authority and SEND Tribunal information which will be considered at the hearing. It will also set a date by which you need to tell the local authority and SEND Tribunal about the witnesses (if any) that you will bring and anyone else you want to come to the hearing. When the appeal has been registered, a copy is sent to the local authority, who are also issued with directions setting out the time limits for sending documents, sending the attendance form and case management questionnaire.

The local authority must respond within 30 working days of a copy of the appeal notice being sent. They will send a copy of their response and any accompanying documents to you and to SEND Tribunal. If you do not receive the response within eight weeks of your appeal being registered, you should notify SEND Tribunal in writing. The local authority will have the same timetable to send further information and evidence as is set out in your directions. The response must say whether or not they oppose the appeal and, if they do, they need to explain why. They should provide a summary of the facts and tell SEND Tribunal what the child thinks about the issues in the appeal.

If the local authority agrees to change the contents of the EHC Plan and you are satisfied with the outcome, you can withdraw the appeal or ask the Tribunal to order the local authority to change the EHC Plan in the way you have agreed by making a consent order. If the appeal is about a decision not to carry out an EHC Needs Assessment or reassessment, not to issue an EHC Plan, not to change the school named in an EHC Plan that is over one year old or to no longer maintain an EHC Plan, and the local authority does not oppose it, the appeal will automatically come to an end. The local authority will have to do what they have agreed to do within a fixed time limit.

If the local authority does not send a response by the end of the time in which they have to reply, SEND Tribunal can do a number of things, including barring them from taking further part in the appeal. Before deciding what to do, SEND Tribunal will write to the local authority asking for an explanation for their failure to respond, or failure to respond in time. A tribunal judge will consider any reply the local authority gives and will decide what should happen.

Can I change or withdraw my appeal?

You can change or withdraw your appeal before the hearing. Download and fill in:

• form SEND7 to change your appeal, for example ask for a different hearing date or add more witnesses form
• SEND8 to withdraw your appeal

Tribunal forms

All of the forms required to appeal to the Tribunal can be found online.

After your appeal

You should receive the decision and reasons by post within 10 working days of the hearing. The decision is sent to the nominated contact and the local authority. If you win your appeal, the local authority must act on the Tribunal’s decision within a set amount of time.

Decision	When local authority must act on decision
Start assessment or reassessment	Within 4 weeks
Make statement or EHC plan of child’s needs	Within 5 weeks
Change statement or EHC plan	Within 5 weeks
Change the school or placement in the statement orEHC plan	Within 2 weeks
Continue with statement or EHC plan of child’s needs	Immediately
Cancel a statement or EHC plan	Immediately

You can complain to the Local Government Ombudsman if the local authority does not follow the decision.

Can I challenge the decision of the tribunal? 

The decision of the Tribunal is final and cannot be automatically appealed. However either party can apply to challenge the Tribunal’s decision in 3 ways:

Application for permission to appeal

An application can be made to the Tribunal for permission to appeal their decision if the decision is wrong in law. Examples of this include;

• The Tribunal did not apply the correct law or wrongly interpreted the law,
• The Tribunal made a procedural error,
• The Tribunal had no evidence (or not enough evidence) to support it’s decision,
• The Tribunal did not give adequate reasons for its decision.

This is not an exhaustive list, there may be other reasons why a decision of a Tribunal maybe wrong in law.

Application for the Tribunal to review its decision

If there has been a change in relevant circumstances since the case was heard, an application can be made for the Tribunal to review its decision.

Application to set aside the final decision

An application can be made to set aside the decision or part of a decision, and for the Tribunal to remake this decision in the following circumstances:

• It is in the interest of justice to set aside the decision
• A document related to the proceedings was not sent to (or was not received at an appropriate time) by a party or a party’s representative,
• A document relating to the proceedings was not sent to the Tribunal at an appropriate time,
• A party or party’s representative was not present at a hearing related to the proceedings,
• Or there has been some other procedural irregularity in the proceedings.

Any of the above applications must be made within 28 days of the original Tribunal decision.

You are strongly advised to seek legal advice before applying to challenge a decision by the First-Tier Tribunal.

Judicial Review

Where an appeal to the First-Tier Tribunal has been unsuccessful, a further option can be an action in Judicial Review.

The following are examples of where Judicial Review may be a remedy;

• The failure of the LA to implement the special educational provision in an EHCP
• A decision of the LA in relation to the content of Part E of the EHCP which details the outcomes sought for the child or young person
• A decision of the LA in relation to the content of any of the health and social care parts of an EHCP,
• A decision of the LA in relation to the content of Part J which details a personal budget.

Legal Advice should be sought in relation to the merits of an action in Judicial Review. A decision can only be challenged this way where it is unlawful, irrational, unreasonable or disproportionate.

Appealing a Statement of Special Educational Needs and the impact of the Children and Families Act 2014

The Children and Families Act 2014 comes into effect from 1st September 2014. This will not affect any current Statements of Special Educational Needs (SSEN) or appeals to the First-Tier Tribunal which are already lodged, as the Education Act 1996 will still apply for these cases.

In relation to current Statements of Special Educational Needs you can appeal to the First Tier Tribunal (Special Educational Needs and Disability) for the following:

• The Local Authority refuses to undertake a statutory assessment of your child’s needs (if this was requested prior to 1st September 2014)
• The Local Authority refuses to issue a Statement of Special Educational Needs following a statutory assessment.
• The Local Authority refuses to amend a Statement of Special Educational Needs following an annual review,
• The Local Authority issues a final Statement of Special Educational Needs and you do not agree with the provision in:
  • Part 2—Child’s learning difficulty,
  • Part 3—The provision required to meet the child’s special educational needs
  • Part 4—The school or type of school named
• The Local Authority decides to cease to maintain the Statement of Special Educational Needs
• The Local Authority refuses to reassess the child’s Special Educational Needs.

1. The time limit for lodging an appeal to the First Tier Tribunal (Special Educational Needs and Disability) for the above in relation to a Statement of Special Educational Needs is 2 months from the date of the decision being appealed.
2. The process is the same as noted earlier in this guidance and any decision of the First Tier Tribunal can be appealed in the same way. There is also the option for a further action in Judicial Review.
3. Transitional Arrangements for Local Authorities to replace all Statements of Special Educational Needs with Education and Health Care Plans.