Tribunal for EHCP

New appeals are currently taking 50 weeks to be heard according to this Upper Tribunal decision published in December 2022 so it is worth getting the basic appeal registered as soon as possible after receiving the formal LA decision letter; the evidence deadline comes many months later, see below for tribunal timetable. 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.

Forms and Information

The GOV.UK tribunal home page is here. Tribunal forms are linked from this page and include the appeal form itself [SEND35] and the Request For Change form [SEND7] The 2018 tribunal leaflet explaining how to appeal is here [SEND37] but it is somewhat out of date eg referring to 5 months and in-person hearings rather than video hearings which are now the norm. Corams has a page about Legal Aid for Education and Ipsea and SOS-SEN have useful starter pages.

Right of Appeal

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. Related pages

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. Related page After the end of the National Trial in September 2021, appeals which include health or social care are now termed extended appeals.

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. Related page

The SEND Tribunal service is free ie families do not have to pay to register an appeal although costs may be incurred in paying for professional reports and/or legal advice and representation. First-tier tribunal hearings are now all online. Obtaining a mediation certificate in lieu of actual mediation is generally the first step.

Tribunal Powers

The First-tier Tribunal has the power to: correct deficiencies 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 the LA to reconsider the special educational provision being made; order different school/institution or type of school/institution specified in EHC Plan or indeed rule that Section I must be left blank for EOTAS where it is inappropriate for provision to be made in a school or post-16 institution.

Tribunal Process

Deadlines and duties are imposed on both parties in the tribunal process. 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 covering dates for 1/ the LA’s initial response and what the LA must include with this response including if relevant a Working Document which is an editable electronic version of the EHCP; 2/ both parties’ evidence deadline; 3/ attendance forms; 4/ any case management review form with 5/ latest version of the Working Document; 6/ the LA’s date for collating the bundle (later evidence will go in a supplementary bundle); and finally 7/ details of the hearing date.

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)

If the LA concedes the appeal the parent should request a consent order from the tribunal to cover the precise issues eg an agreed Working Document. It is not uncommon for LAs to back down at the last minute. NB the local authority does not have the power to terminate the appeal because the LA is the respondent, not the appellant. A tribunal consent order is binding on the LA in the same way as any other tribunal decision whereas if the parent simply withdraws the appeal it is dependent on the LA’s goodwill.

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. This does not mean that families get everything that they ask for.

Disagreements about Tribunal Decisions

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. Related page