What is the Appeals Process For an EHCP?

If you have looked to resolve your concerns about your child’s Education Health Care Plan (EHCP) informally with the Local Authority but discussions have not helped to resolve things, then you may be thinking about the next steps of appealing to Tribunal. Below we have provided guidance on what this process looks like and how to submit an appeal.

What is the Special Educational Needs and Disability Tribunal (SENDIST)?

The Special Educational Needs and Disability Tribunal (SENDIST) is a national, independent body responsible for reviewing decisions related to children and young people with special educational needs (SEN).

When reviewing an appeal, the SENDIST examines all submitted evidence to determine whether the Local Authority acted within the law and the SEND code of practice. Its decision is also based upon what is right for your child at the time of the hearing.

Who Can Appeal to the SENDIST?

Both the age of the student and their “capacity to consent” determines who appeals to SENDIST. Below we have listed the different categories:

• For children from 0 to the end of statutory school age (usually the end of Year 11), parents make the appeal for the child.
• For children after they have completed Year 11 and up to the age of 25: the young person makes the appeal. However, parents can be the representative if the young person wishes or if they lack the capacity to make the decision.

For further information on how decisions about mental capacity are made, we suggest reading National Sensory Impairment Partnership’s (NatSIP)’s guide on the Mental Capacity Act 2005.

Explore Your Options Before Appealing

Before making an appeal to SENDIST it is important to have considered all informal routes first to see if the issue can be resolved without going to tribunal. If you feel you have done this and things have not been resolved, the next step would be to check your concerns fall under the grounds to appeal. It sounds obvious, but it is important that you are clear about why you would like to lodge an appeal and on what grounds you are doing so i.e. your reasons for disagreeing with the Local Authority’s decision.

Mediation

If you do choose to lodge an appeal, it is also important to note that you must contact a mediation adviser before you do so. You do not need to go ahead with the process, but you are required to show you have contacted a mediation adviser through a mediation certificate as part of the appeals process. The only time you do not need to do this is if you are lodging an appeal about the named school/college on the EHCP.

The Appeal Timeline

The timeline for submitting an appeal to when a decision is made is around 16 to 18 weeks. Below we have provided an overview of this timeline as well as aspects to consider if you are attending a hearing.

Time Limits for Submitting an Appeal:

There are two deadlines for submitting an appeal. These are:

• two months from the date when the Local Authority sent the EHCP decision letter.
• One month from the date on the mediation certificate.

Whichever one is later will be the deadline you will need to meet.

Top tip! Keep a careful note of the list of dates you receive from SENDIST when you register an appeal. The dates will list when you need to submit important documents as well as the hearing date if you are needed to attend in person.

It can take around two weeks for the appeal to be registered once you have submitted your appeal. Once registered, there is usually around a 12-week process:

• Week 0: The appeal is registered.
• Week 6: The local authority must respond to the appeal.
• Week 8: All further evidence is submitted.
• Week 12: The tribunal hearing will take place or the papers considered.

Once the hearing has taken place, the Tribunal should issue a decision within two weeks

Must I Attend Court?

Hearings which relate to a ‘refusal to carry out an EHC Needs assessment’ will be heard ‘on paper’ which means your application will be reviewed by Tribunal without the need for an oral hearing. However, if you do still wish for an in person hearing you can request one in writing to SENDIST.

All other appeals will be heard ‘orally’ meaning parents and/or young people will be expected to attend court as part of the Tribunal process.

What Decisions Can the Tribunal Make?

Once your appeal has been reviewed, SENDIST will make a decision. These will be any of the following:

• Dismiss the appeal (this means that they’re agreeing with the Local Authority’s decision).
• Order the Local Authority to carry out an assessment.
• Order the Local Authority to make and maintain an EHCP.
• Order the Local Authority to amend the EHCP.
• Order the Local Authority to reconsider or correct a weakness in the plan, for example, where information is missing.

If you appeal against more than one part of an EHCP, the Tribunal can either dismiss the whole appeal, agree with (uphold) the whole appeal or uphold the appeal against some parts but not others. For example, they may agree that changes need to be made to the description of your child’s needs and the provision required to meet them but dismiss the request to name your preferred school because they believe that the provision can be made in the Local Authority’s preferred school and yours is significantly more expensive.

What Are the Grounds for Appealing an EHCP And How Do I Submit an Appeal?

If you have reached the decision that you would like to submit an appeal to SENDIST and have already explored raising concerns informally then it is important to know under what grounds you can appeal. Below we have outlined the categories for appealing an EHCP decision.

Applying For An EHCP:

Throughout the 20-week EHCP application process there are three opportunities where parents or a young person can appeal to first tier of Tribunal if they disagree with their Local Authority. These occur at weeks 6, 16 and 20. Below we have outlined the following types of appeal and linked to further information guides for each.

You can appeal if the LA refuses to:

• Carry out an EHC Needs Assessment or re-assessment (week 6). Please see our guide for further information.
• Issue an EHCP following an assessment (week 16). Please see our guide for further information.

If a final EHCP has been issued but you disagree with the contents, you can appeal the following sections:

• Part B (description of your child or young person’s Special Educational Needs). See our guide for further information.
• Part F (provision of support offered to your child). See our guide for further information.
• Part I (educational placement). See our guide for further information.

If you are challenging or contesting any one of these parts (B, F or I) then we advise that you ask for all parts to be reconsidered as relevant.

If an EHCP is already in place, you can also appeal at the review stages which include:

• A decision made following an Annual Review
• A decision to ‘cease to maintain’ the EHCP. See ourguide for further information.

Understanding Where the burden of Proof Lies

For each type of appeal being made the “burden of proof” may be different. The burden of proof means it is necessary for one of the parties, either you or the Local Authority, to prove their point. The other party, in turn, will respond to the points made, and in doing so, will present their ‘counter argument’. It is the role of the Tribunal to determine, on the balance of probability, who is correct.

If you are unsure where the burden of proof lies for the appeal you are making, we have gone into further details in the guides linked in the sections above.

Submitting the Appeal

For all types of appeal, it is important to review the evidence and supporting documents for your case. You will need to submit these alongside the appeal form provided by SENDIST.

The Appeals Form

Within the appeals form you will need to explain which decision you’re appealing against, or which parts of the EHCP you disagree with. This is called your “reasons for appeal”.

Structuring your reasons for appeal

All the reasons made should be “backed up” by evidence. The evidence should specifically address concerns within the EHCP, and any points raised in the Local Authority’s assessments which you don’t agree with and are relevant to your case. Using a model, such as a “Point Evidence Explain” model can help to structure your appeal to support this.

• Point: first state your reason
• Evidence: link through to evidence presented and provide quotations, data, or examples from the evidence to support that point
• Explain: how the evidence proves the point

Top tip! It is really important to be as specific and clear as possible. Avoid vague descriptions such as “learn touch typing” and instead provide specific measurable goals such as “achieve a speed of 35 words per minute by the end of Year 6”. This also applies to the specific provision you are requesting, for example rather than “Access to a QTVI, specify “direct support from a QTVI for at least one hour per half term”.

What evidence to gather

Good quality and up to date evidence is integral to the appeal application. In some cases, appeals can be turned down because there is not enough evidence for SENDIST to consider. Remember that the decision will be made on the evidence that you and the Local Authority submit and therefore it is important to submit the best possible evidence where you can.

Top tip! If the school or college submitted the appeal on your or your child’s behalf, then we always recommend asking them for a copy of everything they sent to make sure that they have submitted good quality evidence as part of your appeal.

Examples of evidence:

• Your child/young person’s views.
• Progress reports.
• Learning support plan.
• Home/school diaries.
• Specialist reports, assessments or meeting notes e.g. from the QTVI or habilitation specialist.
• Letters or emails from the school/college, Local Authority or vision specialists.
• Examples of school or homework (this can be helpful where rate of progress is in dispute).
• The School’s SEN Information report which can be found on their website (not including sixth form or further education colleges).
• Local Authority Decision Letter (If it is a decision of refusal or to “cease to maintain” the EHCP).
• The EHCP if you are appealing sections B, F or I.

The EHCP as Evidence

The EHCP will be a key piece of evidence which both parties will refer to during an appeal hearing if you are appealing sections B, F or I. The EHCP is often called a ‘working document’ at Tribunal and you will need to ensure you present the most up to date copy. Before lodging an appeal, we advise you to check the EHCP carefully and consider the following:

• Does section A of the EHCP outline your child’s aspirations and wishes?
• Is there a “Golden Thread” i.e. a clear link between the aspirations and wishes in section A to sections B, F and E of the EHCP?
• Does section B of the EHCP (‘needs’ section) accurately document your child’s SEN in priority order with any jargon explained for non-specialists?
• Does section F (‘provision’) use the ‘must’ word throughout
• Does section F (‘provision’) ‘quantify and specify’ all Special Educational Provision (SEP)?

If you would like further information on what should be detailed in an EHCP read our What is an Education Health Care Plan?

What Next?

Before you start an appeal, it is important that you explore the range of help available to you, including whether you need any support at the hearing itself. It is important to remember that legal representation is not necessary for a “successful” outcome. This is because decisions are based upon evidence and the law, not either party’s legal support or representation.

Our Education Information Advice and Guidance Service can talk you through the appeals process including preparing to submit the application and evidence. If you want further guidance on this, please get in contact with us on educationadvice@pocklington.org.uk or phone 0203 757 8040.

If you are looking for legal representation then we recommend reading Independent Provider of Special Education Advice (IPSEA)’s guide Where can I get help? which provides further information on legal support at a hearing and legal aid.

Below we have also listed some further sources of support including helplines and legal guides:

Helplines:

SENDIST First Tier Tribunal:  Responsible for handling appeals against local authority decisions regarding special educational needs. Their helpline is 01325 289 350.

IPSEA Tribunal Helpline:  IPSEA Tribunal Helpline gives next step advice on appeals and disability discrimination claims to the Special Educational Needs and Disability Tribunal.

SOS!SEN!:  Independent and confidential telephone helpline for parents and others looking for information and advice on Special Educational Needs and Disability (SEND).

Useful guides:

• SEN Help’s guides on Lodging an appeal and Appealing part I of an EHC Plan.
• Government guidance on the time limits for local authorities to carry out an order by the First-tier Special Educational Needs and Disability Tribunal after a SEN appeal.
• Special Education Needs Jungle creates easy to understand resources, articles and information for parents and carers of children with special needs, disabilities and health conditions to better enable them to navigate the special needs system.

These guides have been created with our partner Guide Dogs, you can read more about the partnership on our news page.