Drafting an Appeal to the SEND Tribunal: A Guide for parents & carers
Appealing to the Special Educational Needs and Disability (SEND) Tribunal can feel daunting, especially without legal support. However, the process is designed to be accessible for parents and young people, allowing you to represent yourself effectively.
This guide provides a step-by-step approach to drafting an appeal against a local authority’s decision regarding an Education, Health, and Care (EHC) plan or assessment, including what to include and the evidence required.
Understanding the SEND Tribunal
The First-tier Tribunal (Special Educational Needs and Disability), commonly known as the SEND Tribunal, is an independent body that hears appeals against local authority decisions about special educational needs (SEN). You can appeal decisions such as:
- Refusal to conduct an EHC needs assessment or reassessment.
- Refusal to issue an EHC plan after an assessment.
Disagreement with the content of an EHC plan, specifically: - Decision to cease maintaining an EHC plan.
- Discrimination based on a child’s disability by a school or local authority.
The Tribunal can issue binding orders for educational aspects and make non-binding recommendations for health and social care provisions in extended appeals.
There are no fees for appealing, and the process is designed to be user-friendly for those without legal representation.
Step-by-Step Guide to Drafting Your Appeal
Step 1: Confirm Your Right to Appeal
Before starting, ensure you have the right to appeal. Parents of children under 16, or young people aged 16-25 with capacity, can appeal. If a young person lacks capacity under the Mental Capacity Act 2005, a parent or representative can appeal on their behalf.
You must have received a formal decision letter from the local authority, which outlines their decision and your appeal rights. This letter is crucial, as it triggers the appeal timeline.
Step 2: Check Deadlines
You must submit your appeal within two months of the date on the local authority’s decision letter or one month from receiving a mediation certificate, whichever is later. Missing this deadline can jeopardise your appeal, so note it carefully.
Step 3: Consider Mediation
For most appeals (except those solely about the named school in Section I), you must contact a mediation service before appealing. The decision letter should provide contact details for the mediation service. A mediation adviser will explain the process and ask if you want to proceed with mediation. If you choose not to mediate, you’ll receive a mediation certificate within three working days, which you must include with your appeal. Mediation is optional, and you can still appeal if mediation doesn’t resolve the issue. If you opt for mediation, it must be arranged within 30 days, and you’ll have an additional month to appeal if needed.
Step 4: Choose the Correct Appeal Form
The form you need depends on the type of appeal:
- SEND35: For appeals about the content of an EHC plan (Sections B, F, or I), refusal to issue an EHC plan, or ceasing an EHC plan.
- SEND35a: For appeals against a refusal to conduct an EHC needs assessment or reassessment.
You can download these forms from GOV.UK or complete the SEND35 appeal online. If you use assistive technology and need an accessible format, email hmctsforms@justice.gov.uk to request one.
Step 5: Gather Evidence
The Tribunal makes decisions based on evidence, so your appeal must be supported by robust documentation. Evidence should demonstrate your child’s special educational needs and the provisions required. Types of evidence include:
Written Reports: School reports, Individual Education Plans (IEPs), or reports from professionals like educational psychologists, speech and language therapists, or occupational therapists. NHS reports are ideal, but if unavailable within the deadline, independent reports are acceptable. Ensure independent experts have time to assess your child and submit reports before the deadline.
Records of Meetings: Notes from discussions with the school or local authority, including emails or letters, can show ongoing issues or disagreements.
Witness Statements: Statements from teachers, the school’s Special Educational Needs Coordinator (SENCo), or other professionals who know your child well. If possible, arrange for the SENCo or headteacher to attend the hearing to support your case.
Your Child’s Views: The Tribunal values the child’s perspective. Include their views, gathered during the EHC assessment or separately, if appropriate.
Medical or Diagnostic Reports: Letters from doctors or specialists detailing diagnoses or medical needs that impact education.
Local Authority Documents: The decision letter, EHC plan (if applicable), and any Local Offer or school SEND information that may contradict the local authority’s claims about available resources.
If the local authority’s assessment missed key information (e.g., advice from specialists like a teacher of the deaf), highlight this in your appeal. Regulation 6 of the SEND Regulations requires local authorities to seek specific advice during assessments, and you can remind professionals to update their reports if necessary.
Step 6: Draft the Appeal Form
When completing the SEND35 or SEND35a form, include the following:
- Your Details: Name, contact information, and relationship to the child (parent or young person).
- Child’s Details: Name, date of birth, and school (if applicable).
- Grounds for Appeal: Clearly state why you disagree with the local authority’s decision. For example: If appealing a refusal to assess, explain why an EHC needs assessment is necessary (e.g., the child’s needs are not being met with current support).
If appealing an EHC plan, specify which sections (B, F, or I) are inaccurate or inadequate and why.
If appealing a refusal to issue an EHC plan, argue that the child requires provisions that can only be secured through an EHC plan.
Supporting Evidence: List all documents you’re submitting, such as reports or witness statements. Attach copies of these with the form.
Health and Social Care Issues (Optional): For extended appeals, tick the box on the form to request non-binding recommendations about health or social care provisions. Provide evidence, such as medical reports, to support these requests.
Mediation Certificate: Include the certificate or confirm if the appeal is exempt (e.g., only about the named school).
Desired Outcome: Specify what you want the Tribunal to order, such as conducting an assessment, issuing an EHC plan, or amending specific sections.
Be clear and concise, focusing on how the local authority’s decision fails to meet your child’s needs. Use evidence to back up your claims. For example, if the local authority claims existing resources are sufficient, but the school’s SEND information lacks detail, include this as evidence.
Step 7: Submit the Appeal
Send your completed form and supporting documents to the SEND Tribunal via:
- Online: Using the GOV.UK online appeal system for SEND35.
- Post: First-tier Tribunal (Special Educational Needs and Disability), 1st Floor, Darlington Magistrates Court, Parkgate, Darlington, DL1 1RU.
- Email: send@justice.gov.uk.
Keep copies of everything you send. You’ll receive confirmation that your appeal has been registered, along with case directions, an attendance form, and a case management questionnaire.
Step 8: Prepare for the Hearing
After submitting your appeal, the Tribunal will provide a timeline for submitting additional evidence and the local authority’s response. You’ll receive a “bundle” of all documents before the hearing. To prepare:
Review the Bundle: Create an index of key evidence with page numbers for quick reference during the hearing.
Prepare Your Case: Note the Tribunal panel’s likely questions, as outlined by the judge at the start of the hearing. Focus on your child’s needs and the evidence supporting your appeal.
Consider Attending: While not mandatory, attending the hearing (in person or via video) allows you to answer questions and present your case directly. The Tribunal is informal but remains a legal process.
Witnesses: If possible, arrange for professionals like the SENCo to attend and support your case.
Step 9: The Hearing and Decision
Hearings typically occur within 8 months, though phase transfer appeals (e.g., primary to secondary) may be faster. Refusal to Assess appeals are determined on the papers and are considered by the Tribunal much more quickly.
The Tribunal panel, consisting of a judge and two members with SEND expertise, will review all evidence and hear from both parties.
You’ll receive a written decision, with reasons, usually within 10 working days. If the Tribunal orders the local authority to act (e.g., issue an EHC plan), they must comply within specific deadlines (2-5 weeks, depending on the order).
Additional Tips
Continue Dialogue with the Local Authority: Even after lodging an appeal, keep communicating with the local authority. Agreements can sometimes be reached before the hearing, leading to a formal Tribunal order reflecting the agreement.
Seek Support: While you don’t need a lawyer, organisations like SENDIASS can provide free advice and guidance. They may help with paperwork or attend the hearing, subject to availability.
Organise Your Evidence: Submit evidence by the Tribunal’s deadlines, as late submissions may not be accepted. Clearly label documents and ensure they’re relevant to your appeal.
Understand Limitations: The Tribunal cannot address issues like school transport (unless tied to the named school) or personal budgets. For these, consider a complaint to the local authority or the Local Government and Social Care Ombudsman.
Costs to Consider
While appealing is free, you may incur minor costs for photocopying, travel to the hearing, or independent reports if NHS reports are unavailable. If costs are a concern, explore legal aid or free support from SENDIASS.
Further Resources
- GOV.UK: For forms, guidance, and contact details (www.gov.uk).
- SENDIASS: Local services for advice and potential hearing support (search via www.gov.uk or your local authority’s website).
- SEND Code of Practice: 0 to 25 Years: Explains legal requirements for EHC plans (available on GOV.UK).
Conclusion
Drafting an appeal to the SEND Tribunal without legal support is manageable with careful preparation. Focus on clear grounds for your appeal, gather robust evidence, and meet all deadlines. By presenting a well-evidenced case, you can effectively advocate for your child’s educational needs. With persistence and organisation, you can navigate the Tribunal process confidently.