Who can appeal to the Tribunal?

• Parents or someone with parental responsibility of children 5 – 16 years)
• Young People over compulsory school age where they have the mental capacity to make the decision or their representative
• An alternative person on behalf of young person who doesn’t have capacity to bring the appeal themselves.

What can be appealed to the Tribunal?

The SEND Code of Practice says that parents and young people can appeal to the Tribunal about:

• a decision by a local authority not to carry out an EHC needs assessment or re-assessment
• a decision by a local authority that it is not necessary to issue an EHC plan following an assessment
• the description of a child or young person’s SEN specified in an EHC plan (Section B), the special educational provision specified (Section F), the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified (Section I)
• an amendment to these elements of the EHC plan
• a decision by a local authority not to amend an EHC plan following a review or re-assessment
• a decision by a local authority to cease to maintain an EHC plan.

You can find out more about appeals to the Tribunal in the SEND Code of Practice sections 11.39 to 11.55.

What are the time limits for appealing?

If you wish to register an appeal with the First Tier Tribunal (SEN and disability) you first have to consider whether to enter mediation and obtain a certificate saying you have considered it (unless your appeal is only about the name of the school/college of type of school/college named in the plan). Please read the Disagreement Resolution and Mediation leaflet for more information on mediation.

More information can be found on the East Riding Local Offer website regarding SEND Mediation and Disagreement Resolution Services.

An appeal must be received by the Tribunal:

• within 2 months after the decision letter was sent by the local authority (LA) or
• One month from the date of the mediation certificate, whichever is the later.

The time limit for claims may be extended in exceptional circumstances but only if the Tribunal considers it appropriate to do so. Parents and young people should always aim to lodge their appeal within the time limits.

Legal Aid

You may be eligible for Legal Help, this allows a solicitor’s firm to advise and assist you with your case but Legal Help does not extend to representation at the Tribunal hearing. Before you can be granted legal aid you must pass a financial means assessment. You can check your eligibility online or contact Civil Legal Advice by telephone on 0345 345 4345.

What’s involved?

You must complete a tribunal form to lodge your appeal, providing your reasons for appealing.

GOV.UK - Special Educational Needs and Disability Tribunal forms (external website)

The SEND35 form is used to lodge all appeals to the First tier SEND (Special Educational Needs and Disability) Tribunal in relation to EHCP.

The SEND35A form is used for appeals for a refusal to assess for an EHC plan only.

Download our Tribunal SEND 35 - hints and tips to help you fill in the form.

SENDIASS can support you complete the forms.

Appeal forms and supporting documents can now be submitted electronically, either via email or through the following link SEND35 appeal form (external GOV.UK website).

Along with your appeal form it is useful to enclose photocopies of any evidence or information that supports your appeal. You must also include your mediation certificate to show you have spoken to the mediation adviser and either considered mediation or entered mediation (unless you are only appealing the name of the education setting in section I of an EHC Plan).

You may find it useful to familiarise yourself with the Tribunals guide on How to Appeal Against a SEN decision.

GOV.UK - First-tier Tribunal Guide (external website)

What happens after I send my appeal to the Tribunal?

Your appeal will be registered within 20 working days of receipt, and you will be informed of the date of the final hearing. There is currently around a 12 month wait for a hearing date.

When your appeal is registered the Tribunal will issue:

• Case directions – these set dates by which you must take action. Please keep a note of these important deadlines as you can be barred from the hearing for failing to comply
• An attendance form – you will be given a date by which you must inform the Tribunal and the local authority about the witnesses (if any) along with any others that you want to bring to the hearing. If a witness refuses to attend the hearing you can ask the Tribunal to issue a witness summons which requires them to attend
• A case management questionnaire – The local authority will be sent a copy of the appeal when it has been registered, they must respond within 30 days of their appeal notice being sent, sending a copy of their response and any other documents to yourself as well as the Tribunal. The local authority has the option to:
  • oppose your appeal
  • apply to strike out your appeal and ask that it is brought to an end if they feel it is a case that the Tribunal cannot consider
  • not oppose your appeal - for example this could be that they agree to amend the EHC Plan. If you are satisfied with the outcome, you can withdraw the appeal or ask the Tribunal to order the local authority to change the EHC plan in the way you have agreed, by making a consent order.

What happens at the hearing?

You will receive a full copy of the appeal bundle (copies of the documents yourself and the local authority want to use to support your cases) along with the time and venue of the hearing. Hearings are held in Tribunal Buildings/Family Court Rooms as close to your home as possible (the Tribunal aims for venues to be no more than 1½ hours travel in each direction).

Appeals will be heard by a panel consisting of a legally qualified Tribunal Judge who will chair the hearing and up to two specialist Panel members who have knowledge and experience of children with SEND. Hearings usually start at 10am (although some may start at 2pm) and the length of the hearing will depend on the issues being heard and number of witnesses. You do not have to attend the hearing but it is helpful to do so.

During the hearing

• The Tribunal Judge will provide an introduction, explain the procedures and list the issues to be considered
• The panel will consider the appeal on an issue-by-issue basis
• You and the local authority will be invited to give your views and present your evidence on each issue
• You will have the opportunity to ask questions of the local authority, witnesses and also have the chance to add anything additional you feel is important and has not been previously mentioned. The local authority will be given the same opportunity
• You may be invited to make a brief closing comment to summarise your position.

After the hearing

The Tribunal will make its decision following the hearing, and parents are notified in writing by post and generally this is received within approximately 10 working days.

This decision letter must summarise their reasons for the decision.

If the Tribunal issue an order, once received the local authority have to comply with time limits, within which they must carry out the Tribunal order.

These time limits can be found here:

Time limits for complying with a SEND tribunal decision: SEND18

Where can I get more information, advice or support?

East Riding SENDIASS can explain the appeal process to you and provide impartial information, advice and support.

The Local Offer, published by the local authority, includes information about the arrangements for resolving disagreements and for mediation. It also tells you about your right to appeal to the Tribunal. 

East Riding SENDIASS can offer advice and support with this discussion and can give you:

• information about complaints procedures, disagreement resolution and mediation
• advice about what to do if you are unhappy with the support the school or college is providing
• details of other organisations, support groups and information services that might help
• information and advice about your rights to appeal to the First Tier Tribunal (SEN and Disability)
• impartial advice and support through the process of making a complaint, disagreement resolution, mediation or appeal.

National organisations that can also provide information and advice on SEND include the Independent Parental Special Education Advice.

If you would like to pursue an SEND Appeal with regards to the EHC process, you will find the documents and more information on the GOV.UK website.

You can speak to a member of SENDART (Special Educational Needs and Disability Assessment Review Team) about your concerns.

Tel: (01482) 394000 (option 1, option 1).

SEND7 forms

If during the tribunal process you need to submit evidence after the evidence deadline, or you want to change the hearing date or bring an additional witness. All of these are done through completing a SEND 7 form.

This form is available at: gov.uk/form-send7-request-for-change

It's important that before submitting a SEND7 form to the tribunal you send it to the other party and request there views before then submitting the form to the tribunal.

Types of Hearing

Paper Hearings

Please note: unless you have specified to the Tribunal that you want your hearing to be a paper hearing, the hearing will be an oral hearing.

You will send in all of your evidence and explain your arguments in writing. The Tribunal will consist of two or three professionals/SEND specialists on the Panel, including one Judge and an expert in SEND-related matters.

It is important to remember that the Judge and professionals/SEND specialists will only have the evidence in front of them (in the Bundle) and will not be able to ask you any questions, so it is important to ensure that every piece of evidence or report has been emailed to Tribunal to be contained within the Bundle. Don’t assume they will ‘read between the lines’: it is all about the evidence in front of them.

There will be a window of time between two dates, around ten days apart and your appeal could be heard anywhere between these two dates.  Approximately two weeks before the hearing date you will receive a’ Notice of Hearing’, which will advise you on which date your appeal will be heard.

You will receive the Tribunal decision (and reasons for the decision) ten working days after the hearing.

Virtual Hearings

Making an appeal can be very daunting, but attending a hearing virtually may leave you feeling very overwhelmed.

Even if you regularly take part in video calls, it is normal to feel nervous about the SEND Tribunal and we advise the following tips to help you in preparing for the hearing.

1. Preparation. Inform the other members of your household that you are attending a Hearing to discourage interruptions or distractions on the day. Is it possible for someone to support you with your children during the Hearing day?
   
   
2. Check your Tribunal Bundle. This is the document that the Tribunal panel will use during your Hearing. When a copy is sent to you, ensure that all your evidence has been included and that you have seen all the evidence before from the LA. If there is anything in the bundle that you are only seeing for the first time when sent the bundle, make the panel aware at the very start of the Hearing.
   
   
3. Your Internet Speed. Many parent/carers, young people and experts are likely to be accessing a Virtual Hearing from their home. Whilst this can provide a comfortable and safe place for a Hearing, it can be problematic with WIFI or internet connection. If there are other people in your house at the time of the Hearing that are using the WIFI or internet, such as other adults or children, this could affect the speed or your connection. We advise keeping usage of WIFI to a minimum during the Hearing, with priority placed on the devices connecting you to the SEND Tribunal Hearing.
   
   
4. Tech-check. We advise testing your microphone/camera before the day of the Hearing. If you know which device you will be using to attend the Hearing (laptop, phone, iPad) you could ask a willing family member or friend to help by doing some practice calls with them via video calls. This may help in gaining confidence.
   
   The Tribunal use their own video platform to carry out Hearings. Do not worry about using this video platform. The Tribunal service will have a tech-check 30 minutes before the Hearing begins. This is to make sure that your microphone, video, and connection are all running smoothly. During the tech-check you will be speaking to a Tribunal Clerk who can answer any questions you have about the Hearing. It is well worth attempting to log in before your Tribunal time so that if you do have any difficulties they can be resolved in time before accessing the Hearing room. The Tribunal Clerk should be able to support and resolve most problems but if they cannot, all parties can access a telephone system to join the Heating and participate verbally.
   
   
5. Background. Think about where you are going to have your camera facing during the Hearing. Is there anything in the background that you do not want people to see? Do you have a plain wall that you could sit in front of? If not, could you move some items to one side to create space behind you? Is there enough light for the camera so that people can see you clearly? It may be better to face a window or a light source to help with this.
   
   
6. Witnesses. Previously in live Hearing situations, you would be able to pass notes to your experts and representatives or have the option to use one of the small rooms in the court building to have a private discussion during the breaks. It is recommended that before the day you organise a way to communicate with your witnesses and support during the breaks.
   
   
7. Don’t Panic. We understand if you still feel nervous about the Hearing, as we know how emotional and stressful it can be when discussing something as important as your child’s education. Children running into the Hearing, dogs barking at the postman, cats jumping onto the keyboard – however hard we try we are all human and sometimes everything does not go to plan. Please do not panic. The Tribunal does understand that we are all managing these hearings from our home environments, so if it happens to you, take a deep breath, recompose, and try to pick up where you left off. If you do need to take a short break to quickly deal with something, please simply ask for a short break rather than risking missing something important during proceedings.