Cumberland SEND Information, Advice and Support Service

Appealing to SEND Tribunal

The First-tier SEN and Disability (SEND) Tribunal hears appeals against decisions made by the local authorities (LA’s) in England in relation to children's and young people’s Education, Health and Care needs assessments and Education, Health and Care (EHC) plans. 

It also hears disability discrimination claims against schools and against local authorities when the local authority is the responsible body for a school. 

This information aims to provide an overview regarding the Tribunal process. 

What can be appealed to Tribunal? 

An appeal to the Tribunal can be made in relation to: 

  • A decision of a local authority not to secure an EHC needs assessment. 
  • A decision of a local authority, following an EHC needs assessment, not to issue an EHC plan. 
  • Where an EHC plan is maintained for the child or young person: 
  • The child’s or young person’s special educational needs as specified in the plan. 
  • The special educational provision specified in the plan. 
  • The school or other institution named in the plan, or the type of school or other institution specified in the plan. 
  • That no school or other institution is named in the plan. 
  • A decision of a local authority not to carry out a re-assessment following a request. 
  • A decision of a local authority not to amend an EHC plan following a review or re-assessment. 
  • A decision of a local authority to cease to maintain an EHC plan.

A parent or young person cannot appeal the following parts of the EHC Plan to the Tribunal and other remedies should be considered, for example dispute resolution with the LA, please see the section relating to dispute resolution on this website for further information: 

Section E: The outcomes sought for the child or the young person 

Section J: The amount of Personal Budget or any conditions imposed (although the Tribunal can consider appeals which relate to the special educational provision that will be delivered via a Personal Budget). 

Further information can be found in Chapter 11 of the SEND Code of Practice

Appeals Including the Health and Social Care Elements of a Plan

The Government announced that the extended powers given to the SEND Tribunal to hear appeals and make non-binding recommendations about the health and social care elements of EHC plans will continue when the trial of the extended powers ended on 31 August 2021. 

The SEND Tribunal can only make recommendations on health and social care provision, not legally binding orders as with education:

  • the health and social care needs specified in EHC plans (Sections C and D)
  • the health and social care provision specified in EHC plans related to the learning difficulties or disabilities that result in the child or young person having SEN (Section G and H2)

For further information on appealing the Health and Social Care elements of an EHC plan can be found in the link below:

SEND tribunal: extended appeals - GOV.UK (www.gov.uk)

Please contact your local Cumberland SEND IASS Co-ordinator for further advice and support with appealing the health and social care elements of an EHC plan.

Mediation

Parents and young people must consider mediation before an appeal can be lodged. These requirements are set out in detail in the mediation section of this website : 

The Tribunal will not take account of the fact that mediation has taken place, or has not been taken up, it will not take into account the outcome of any mediation. Parents and young people will not be disadvantaged at the Tribunal if they have chosen not to go to mediation. 

What are the time limits for appeal? 

The deadline for registering an appeal with the Tribunal is: 

  • two months from the date of the local authority sent the letter containing a decision which can be appealed or; 
  • one month from the date of a mediation certificate which has been issued following the mediation or the parent or young person being given mediation information, whichever is the later. 

Claims for disability discrimination must be made within six months of the alleged instance of discrimination. 

Time limits for all claims to the Tribunal can be extended but only if the Tribunal considers it appropriate to do so. However, there must be good reason and parents and young people should always aim to lodge within the time limits. 

Please contact your local Cumberland SEND IASS Co-ordinator for further advice and support with time limits for an appeal.

Who can appeal to the Tribunal about EHC needs assessments and plans? 

The following individuals can appeal to the Tribunal: 

  • Children from 0 to the end of compulsory schooling - Parents 
  • Young people over compulsory school age until they reach age 25 – Young People where they have capacity to make the decision and their representative or parents where they lack capacity. 

It is assumed that a young person has this right unless they lack the mental capacity to make a specific decision. A person has mental capacity if they can: 

  • Understand the information given to them.
  • Remember it.
  • Use and weigh up the information to make a decision.
  • Communicate their decision. 

You can watch a video explaining mental capacity and making decisions here: The Mental Capacity Act: an animated guide by Infodeo.

Young people can register an appeal in their name but can also have their parents’ help and support if needed. 

What decisions the Tribunal can make? 

The Tribunal has a range of powers to make certain decisions in relation to appeals. 

These include: 

  • Dismissing the appeal. 
  • Ordering the local authority to carry out an assessment. 
  • Ordering the local authority to make and maintain an EHC plan.
  • Ordering the local authority to amend the EHC plan. 
  • Ordering the local authority to reconsider or correct a weakness in the plan, for example, where necessary information is missing. 

LA’s have time limits to comply with regarding decisions of the Tribunal, your local Cumberland SEND IASS Co-ordinator can advise you on these time limits.

When making decisions about whether the special educational provision specified in the EHC plan is appropriate, the Tribunal takes into account the education and training outcomes specified in Section E of the EHC plan and whether the special educational provision will enable the child or young person to make progress towards their education and training outcomes. The Tribunal can consider whether the education and training outcomes specified are sufficiently ambitious for the child or young person. When the Tribunal orders the local authority to reconsider the special educational provision in an EHC plan, the local authority should also review whether the outcomes remain appropriate. 

Further information:

Suffolk IAS Services created a series of videos to help parents fill in the SEND appeal forms.  The videos are broken down into sections.  It is possible to watch one section after another or simply go to a section of the form which you are unsure about.  A mediation video is also included. 

Two playlists are included on Youtube:

The videos refer to Suffolk on occasion, however the advice is appropriate for all areas of England. 

The HM Courts and Tribunal Service have issued the following guidance on making an appeal, including links to access the relevant appeal forms SEND37 - How to appeal an SEN decision (publishing.service.gov.uk) [PDF 233KB]

The Independent Provider of Special Education Advice (IPSEA) provides further information here  Appealing to the SEND tribunal (ipsea.org.uk)

IPSEA have a ‘refusal to assess’ pack with everything you need to appeal to Tribunal against a refusal to asses for an EHC Plan Refusal to assess pack IPSEA [PDF 301KB]

Contact (for families with disabled children) provides further information here Tribunal appeals | Contact