Appeals to SENDT (The Special Educational Needs and Disability Tribunal)

The majority of work carried out at SEN Legal relates to representing families of children, or young persons, in appeals to SENDT.

 

In order to bring an appeal to SENDT, you must have an active 'right of appeal.' A 'right of appeal' is generally the decision letter informing you of the local authority's decision, or the covering letter to a final EHCP. The decision or covering letter will have a date on it, from which you have two months to bring an appeal to SENDT or, one month from the date of the mediation certificate, whichever is later. 

 

It is important to seek advice as quickly as possible if you have an active right of appeal, to prevent it expiring. We would additionally advise that you seek advice on the timing of obtaining of a mediation certificate, as sometimes it will be more beneficial to obtain your certificate later on, to give you more time to lodge your appeal.

 

If you do not currently have an active right of appeal, we can discuss and advise on method's of obtaining a right of appeal.

 

There are six main types of appeal, each of which have different legal considerations. However the appeal process is the same, regardless of the decision you are challenging.  

 

• Refusal to assess (or reassess) a child or young person’s special educational needs – have you made a request for an EHC needs assessment and been refused? Local authorities often refuse these requests unlawfully - see our EHC needs assessments page under 'our services'.  This decision can be reversed on appeal and we can assist you with challenging the decision and holding the local authority to account for not considering the evidence and/or not applying the relevant legal test.

 

• Refusal to issue an EHCP after an EHC needs assessment – has your local authority completed an EHC needs assessment but then refused to issue an EHCP? The legal test for issuing an EHCP revolves around the word ‘necessary’.  Case law has determined that the word ‘necessary’ means somewhere between ‘indispensable and useful’, with a key consideration being whether or not the child or young persons needs can be appropriately met from a maintained mainstream schools own usual resources. This is a wide definition and whether it is satisfied will vary according to the facts of each case.

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• Against EHCP content (sections B, F and I) - are you unhappy with sections B, F and I of your child or young person’s EHC Plan?  Does Section B contain an inadequate description of their needs and/or is there insufficient provision in Section F to meet those needs?  Does section F include ambiguous terminology such as 'access to' or 'opportunities for' which makes it impossible to determine what level of provision is actually required?  Do you disagree with the placement named in Section I? The SEND Tribunal can re-write all the educational sections of an EHCP (sections B, F and I) on Appeal.  Section B should specify all of the child/young person’s needs, and provision should be specified and quantified in section F for each and every need specified in section B.  EHCPs should be clear, concise, understandable and accessible to all. Please note we have a separate page under 'our services' for EOTIS appeals.

 

• Extended appeals - the SEND Tribunal’s jurisdiction has been extended to include a power to make recommendations in relation to the health and social care sections (i.e. sections C, D, G, H1 and H2) of an EHCP in addition to considering an 'against content' appeal listed above. In an extended appeal it is key to remember that while the educational sections (B, F and I) are legally binding, you will only receive recommendations (not a legally binding order) for health and social care. Nonetheless if the local authority/clinical commissioning group choose not to follow the recommendations made by SENDT, you may have a claim for 'judicial review' if the decision is not made properly.

 

• A decision not to amend following an annual review - has your local authority conducted a statutory annual review but decided not to amend the EHCP when changes are actually required? Have they disregarded changes you've asked for that are evidence based? The local authority’s decision can be reversed on appeal. 

 

• Ceasing to maintain an EHCP - has your local authority decided to cease to maintain your young person's EHCP?  EHCP's should remain in force for as long as is necessary, potentially up to the end of the academic year when the young person turns 25. Local authorities must not cease to maintain an EHCP simply because a young person reaches adulthood, or because they are not pursuing a standardised qualification. Local authorities must take into account whether the educational training outcomes specified in the EHCP have been achieved and must follow the correct process to cease to maintain an EHCP.  The local authority's decision can be reversed on appeal. We can also support with securing the young person’s provision and placement in the EHCP, until the outcome of the appeal.

 

Parents and young person often come to us frustrated with their local authority, having spent weeks, months and in some cases years, trying to negotiate, but not getting anywhere. 

 

SENDT cases are now taking longer than ever before to reach a hearing (up to one year for non-priority/phase-transfer cases) so it is more important than ever not to delay in obtaining your right of appeal, and lodging your appeal. That said, not every appeal results in a hearing, and our solicitors will discuss with you any alternative course of action or opportunities for settlement, to avoid a hearing wherever possible.

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We take a considered approach to each and every appeal and this often results in a successful outcome. Our current success rate of 97% is testament to the forensic approach we take to every case.

 

To speak to one of our solicitors to discuss your chances of a successful appeal and whether you have the necessary evidence, call our friendly team on 01284 723952 or 01223 650857 today.​