Introduction to Tribunal for EHCPs

New appeals are currently taking 50 weeks to be heard according to this Upper Tribunal decision published in December 2022.

Families can challenge a formal decision about an EHCP at tribunal. This includes refusal to carry out an EHC needs assessment; refusing to make an EHCP after a needs assessment; the contents of the final EHCP (the first version or any subsequently amended versions following review); not amending the EHCP following review; ceasing the EHCP.

The First-tier Tribunal may correct deficiences in EHC Plan; dismiss the appeal; order the LA to arrange assessment or reassessment; order the LA to make, maintain or continue an EHC Plan (including such amendments as FTT thinks fit); require LA to reconsider the special educational provision being made; order different school/institution or type of school/institution (eg mainstream or special) specified in EHC Plan. [SEND Regulation 43

The local authority's decision must follow correct process and be set out in writing before you can go to tribunal, which is why the Ombudsman will look at delay leading to injustice in being prevented from appealing. The SEND Tribunal’s service is free. First-tier tribunal hearings are now all online. Obtaining a mediation certificate in lieu of actual mediation is generally the first step. The deadline for submitting an appeal is two months from the date of the letter from the local authority giving their final written decision or 30 days from the date of the mediation certificate.

Various deadlines and duties are imposed on both parties The appeal is generally registered within 10 working days and the tribunal service will send an electronic letter to parents and to the local authority with case directions setting out the timetable and the hearing date. The first deadline is for the Local Authority submitting its appeal response. The parent's deadline is AFTER this. In its response the LA must say whether or not they oppose the appeal and, if they do, they need to explain why. In all appeals about the contents of the Plan the LA must also provide what is called a Working Document which is an electronic editable version of the EHCP. It is the LA which is responsible for collating the final bundle of evidence, rather than the tribunal service. The LA has a duty to provide parents with an electronic copy of the bundle and ALSO with a paper copy.

Appeals have an appellant and a respondent. The parent or young person who brings the appeal is called the appellant and the local authority is the respondent. Up to when the child is 16 it is the parent who is the appellant; after 16 the appeal is in the name of the young person although the parent can complete the paperwork and speak on the young person's behalf as their helper or advocate. It is the respondent's decision which is being appealed, and the decision may be upheld (ie the tribunal disagrees with the parents' challenge) or it may be revised (ie the tribunal agrees at least in part with the parents' appeal) Parents might withdraw their appeal because the local authority offers a solution, or for a variety of other reasons. Where this happens the parent should get a final agreed Working Document and then request a consent order from the tribunal which is binding in the same way as any other tribunal decision. NB the reason why a local authority does not have the power to terminate the appeal is because the LA did not bring the appeal.

In the past most SEN cases didn't get as far as a hearing but this is changing. See SEND Tribunal Tables 2021-22 via this page, published December 2022. There is an explanation of the statistics here which points out that families registered 11,052 appeals, 9,076 of which were finished by the end of the year (probably because video hearings are more efficient than face to face). Nearly two-thirds of appeals in 2021-22 went all the way to a hearing, and of those, the tribunal upheld the LA in only 3.7% of cases.

Sections B, F and I are statutory and can be appealed to obtain a binding decision from tribunal. Sections A and E are non-statutory (Views and Outcomes) Sections C, D, G and H (health and care) can be joined to the appeal but the tribunal's recommendations are non-binding in these areas. After the end of the National Trial in September 2021, appeals which include health or social care are now termed extended appeals.

Useful links include: tribunal home page GOV.UK; tribunal forms GOV.UK; how to appeal GOV.UK send37; Legal Aid for Education from Corams; Ipsea Tribunal Information; SOS-SEN! Tribunal Tips; Tribunal Bundle Guidance GOV.UK.

NB the email address on the SEND35 appeal form is no longer in use. The correct address is send@justice.gov.uk

In very restricted circumstances as explained here, families can go on to the Upper Tribunal after a hearing at the First Tier tribunal. The GOV.UK link for Upper Tribunal decisions. is here. It is only the Upper Tribunal which creates case law, not the First Tier Tribunal. NN v Cheshire East is a UTT case I won in 2021. It concerns education otherwise than at school [EOTAS] and leaving Section I blank. Read more here

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Related Pages

Getting an EHCP
Home Educating With EHCP new page February 2023

Contents of EHCP
SEND Regulations
Personal Budgets and Direct Payments
Deregistration Taking a child out of school
Formal complaints