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Getting your ducks in a row - Preparing for a SEND Tribunal

You may have received a decision from your Local Authority refusing to assess your child, refusing to issue an EHC Plan, or perhaps you have received a draft or finalised EHC Plan that you are unhappy with. Sound familiar? If so, you are likely to now be preparing to submit an Appeal to the SEND Tribunal. Parents can often find this a daunting and stressful experience as it is a complex legal process.

Set out below is a brief guide of what you can expect as you move forward with your Appeal and what to look out for, along with some top tips to ensure you are best prepared to succeed:

1) Time to Appeal:

You have two months from the date of your Local Authority’s decision letter, or one month from the date of the mediation certificate (whichever is longer) to submit your Appeal to the SEND Tribunal. This time period is important, if you miss the deadline the Tribunal will not register your Appeal. It is important to make a note of this deadline, so you are clear of the date you need to submit your Appeal by.

2) Mediation Certificate:

Before you are able to submit your Appeal to the Tribunal you must obtain a mediation certificate and you must do so within 2 months of the date of the Local Authority’s decision letter. Parents are often mistaken in believing that this means you will need to participate in mediation with the Local Authority, it doesn’t. The only requirement is that you obtain a mediation certificate, which you can do by simply contacting the mediation service set out within the decision letter. The Tribunal will not give you a ‘red mark’ for not participating in mediation, they are simply not interested.

*It is important to remember your mediation certificate can extend the deadline in which you need to Appeal by an additional month. Therefore, if for whatever reason you need to do so, you can delay obtaining your mediation certificate to extend your deadline.

3) Independent Expert Evidence:

Independent expert evidence is key within the SEND Tribunal. The Tribunal bases its decision on evidence. The Tribunal are unable to award provision, or independent placements, solely based on what you feel your child needs. Independent experts will identify what your child’s needs are and the provision required to meet those needs. Unfortunately, Local Authority and NHS experts will normally only recommend what they are to provide within their Local Authority area, rather than what is actually required to meet your child’s needs. Therefore, it is always best to have independent experts assess. The SEND Tribunal is a specific area of work and you will need to ensure any independent expert you instruct is well-versed in this area and is prepared to attend the Tribunal.

*It is important to arrange your experts’ assessments as soon as possible, good experts in this area have very busy diaries. You will need to ensure the assessment dates allow enough time for their evidence to be available for your Appeal. You will need to time the submission of your Appeal around the assessment dates.

4) Submitting your Appeal:

In order to submit your Appeal to the Tribunal, you will need to complete the Notice of Appeal form found on the Tribunal’s website. You will also need to submit a copy of your mediation certificate, the LA’s decision letter, your child’s EHC Plan (if applicable) and any other relevant evidence.

5) The Appeals Process:

Once your Appeal has been submitted to the SEND Tribunal, the Tribunal will then register the Appeal and issue case directions. The key case directions to look out for are:

  • The Local Authority’s response – usually within 4 weeks of the Appeal being registered, the Local Authority must submit their response to your Appeal and whether they oppose. The Local Authority should also send you the Working Document (if applicable), which is a word version of your child’s EHC Plan, where you are able to rewrite the contents of the plan, with the amendments you feel are necessary. Your amendments should reflect the evidence of your independent experts. You will then need to send this to the Local Authority, who should respond with what amendments they agree or disagree with.

  • Further Information deadline – usually within 8 weeks of the Appeal being registered, both you and the Local Authority will need to submit all the further evidence you wish to rely on in the Tribunal. It is important to make a note of this deadline and inform your experts of this date, so they are clear when their evidence will need to be sent to you by.

  • The Hearing – The Hearing should take place within 12 weeks of your Appeal being registered. You will need to check this date with your own diary and with any of the witnesses you wish to bring with you.

The SEND Tribunal process is a complex legal procedure. We hope the above will help you with any Appeal you are currently planning to submit or you have ongoing. If you do need any assistance with your Appeal, we are happy to help.

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