Table of Contents
You can appeal a case at tribunal when you want to challenge the contents of the Education Health and Care Plan, and even before this you can challenge if the council refuses to carry out an EHC needs assessment or if having done the assessment the LA says the EHCP is not necessary. You can also appeal if the council decides to cease (take away) the EHCP.
The First-tier Tribunal (SEND) has powers to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans as part of a special educational appeal. From 1 September 2021, after the end of the National Trial, those appeals which include health or social care aspects are to be known as ‘extended appeals’.
In my 2016 Survey of home educating parents, I found most DON'T take their case to tribunal ("I was going to go to tribunal after the refusal to assess, but then they did agree although it still isn't done"). Of those who do go to tribunal, some say it's the only thing that works, including where it never actually reaches the tribunal ("specialist placement agreed out of court the day before the tribunal hearing"), while others say they might 'win' at tribunal but still not get the support ("been to tribunal 3 times all successful, but the judge pointed out last time they have no power to enforce so gave green light to school to ignore it".)
Guidance to LAs on Preparing Tribunal Bundle from Oct 1st 2018 dealing with page limits for evidence OUTSIDE the core bundle.
https://www.gov.uk/government/collections/special-educational-needs-and-disability-tribunal-forms is the main reference page although it does not include https://www.gov.uk/government/publications/how-to-appeal-a-special-educational-needs-sen-decision-send37 which was updated in February 2019.
The deadline for making appeals or obtaining a mediation certificate is two months from the date of the letter from the local authority giving their final written decision. In most cases a mediation certificate MUST be obtained (in lieu of actual mediation). There is an additional 30 days from the date of the mediation certificate to make an appeal to SEND Tribunal
SEND Tribunal’s service is free. First-tier tribunal hearings are now all online. The process of making an appeal can easily take five months or more.
After the parent has submitted the appeal form, the appeal is registered within 10 working days and the tribunal service will send a letter to parents and to the local authority with case directions setting out the various deadlines and naming a 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. The local authority may also apply to strike out the appeal. If the local authority misses the deadline for the initial response the tribunal has the power to bar them from taking further part in proceedings, although there is a huge amount of leeway as the LA is able to submit reasons for delay.
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.
NB very few firms have an education contract for legal aid representation (ie covering tribunals); instead most legal aid firms have education contracts for SEN help and advice but NOT representation (eg Child Law Advice/Corams). Exceptions include Sinclairs Law for Wales and Simpson Millar (formerly Maxwell Gillott) for England. Another well-known firm is Boyes Turner (BTsen) https://www.senexpertsolicitors.co.uk/ and there is also HCB
What Parents Say
I was fortunate to get legal aid and funding through IPSEA. I won on all parts ...Monumental waste of public money, but because they were determined not to be flexible we had to do it the hard way!...It has been a nightmare. Our son has had no school place since Nov 2012. His provision outlined in his statement has not been provided since then...
I was fortunate to receive Legal Aid. I have my own disability and would not have managed without my wonderful solicitor...Needed days off work, buying a photocopier, paying an advocate, travelling to private assessment appointments and staying overnight for assessment, private Ed Psyc assessment, private speech and language and OT assessments, paying for copies of documents held by the LEA and requested under freedom of info act and phone calls...
Our son was out of school for 1 yr + 1 term after 1 year of appalling attacks in secondary school... my son was out of school for 9 months...I had my special needs child out of school for 4 and a half months...We have been through three Tribunals for my son, lost everything in the process - currently he is not in school while we are fighting the fourth Tribunal...We waited nine months for an appeal date with SENDIST during which time no education was provided and he was educated at home by his mother and carers with no help from education at all.
Morning of SENDIST Tribunal we got a phone call from the council stating they would provide the home education we had requested originally...LA tried lots of stalling, moving the dates...LEA conceded 30 minutes before the hearing because all mainstream schools which had been approached refused admission and judge would not grant another delay...
The Local Authority capitulated at 5.30 the evening before our Tribunal was due to be heard. They had not made any effort to create a case and in my opinion had deliberately pushed us to the wire!...The local authority gave in half way through the hearing which they had extended over 2 days...They actually gave in on the morning of the Tribunal in the reception of the hotel! I had paid for a barrister to come down from London and stay overnight...
We ended up home educating as the least worst option and not being able to face/fund another appeal...I felt the decision in favour of the local authority was biased. As a result, I have now decided to home school my son with little support from the local authority...
Our LA lodged an appeal for an extension the day before our hearing date and this was granted (despite them having 9 months to prepare). It is our firm view that our LA put us through all of this just to see if they could 'wear us down'...
SEND Tribunal Statistics
There is an explanation of the statistics on Special Needs Jungle here which points out that families registered 8,579 appeals, 7,554 of which were finished by the end of the year (probably because video hearings due to covid are more efficient). Nearly two-thirds of appeals in 2020-21 went all the way to a hearing, and of those, the tribunal upheld the LA in only 3.6% of cases.
The parent or young person who brings the appeal is called the appellant and the local authority is the respondent. 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)
Meanwhile parents might withdraw their appeal because the local authority offers a solution, or for a variety of other reasons. Alternatively the local authority might back down (although probably not until very late in the appeal) nWhere this happens the parent should get a final agreed Working Document and then request a consent order from the tribunal.
Appeals which are most likely to go all the way to a tribunal hearing are 1/ those against section B and F [needs and provision], and 2/ those against section B,F and I [needs, provision and placement]. Appeals which are most likely to be withdrawn or conceded BEFORE reaching a hearing are 1/ refusal to secure an EHC needs assessment and 2/ refusal to make an EHC plan.
Relevant SEND Upper Tier Tribunal Decisions
GOV.UK link for Upper Tribunal decisions. It is only the Upper Tribunal which creates case law, not the First Tier Tribunal.
NN v Cheshire East is a case I won at the Upper Tribunal in September 2021. It concerns education otherwise than at school [EOTAS] where it is not intended that the child will actually attend school but a school is nevertheless named on the EHCP whether that is for funding purposes or because the LA thinks it is better in some way to be attached to a school or for a school to manage the provision. See my blog post here
The First-tier Tribunal ordered the following words for Section I "Specialist Provision: [the school], Bespoke provision." The parent took the case to the Upper Tribunal on the basis that the First-tier Tribunal had erred in law by naming a school in Section I.
The Upper Tribunal agreed and ruled that the contents of Section I had not been decided correctly firstly because there had been insufficient consideration of the appropriateness of school ie whether school would 'not be suitable' or 'not be proper'; secondly that it would not be right to name a school where the child would not attend (even with a wide interpretation of "attendance") and thirdly that it was not legitimate to add further descriptive terms to Section I.
Is School Inappropriate?
At the Upper Tribunal Judge Rowley gave the following guidance for EOTAS cases:
a. The tribunal must consider section 61 CFA 2014. It must separately ask whether it is satisfied that it would be inappropriate for (i) any special educational provision that it has decided is necessary for the child to be made in any school and (ii) any part of the provision to be made in any school.
b. In considering these questions, the tribunal must ask if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i.the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above)).
c. If the tribunal is satisfied that it would be inappropriate for any such special educational provision to be made in any school, then Section I must be left blank.
Attendance at School Named in Section I
In deciding whether it is permissible to name a school the tribunal must consider whether the school will in fact be "attended" by the child, bearing in mind that attendance does not have to be full time and is not limited to the classroom. Attending provision provided by the school at an alternative setting outside a conventional classroom setting still means the child is attending, but NOT where provision is delivered at the child's home because home is not a setting.
Additional description in Section I
The Upper Tribunal confirmed as per Regulation 12 and following previous case law in East Sussex 2016 and Derbyshire 2019 that what is specified in Section I must be strictly limited to the name/and or the type of the school to be attended.
What are the implications?
Where a child has an Education Health and Care Plan and there are strong indications that a child will not attend school eg because of something in the child's background or medical history -including eg the child's own strong views or levels of anxiety or fatigue, or where there is something particular in the child's educational needs, then proper consideration of these factors may lead the local authority - and if relevant the tribunal - to conclude that it would be inappropriate for provision to be made in a school. In such cases a school must not be named as the placement in Section I irrespective of whether the local authority wishes the school to deliver an outreach programme or bespoke package of education. This is a significant ruling because of what may otherwise follow from a school being named in Section I "just to get the funding" but where a child was not expected to attend. This may include the parent being accountable to the school for provision made by the parent during "school hours"; the child being treated as a pupil who should really start attending or joining in with school; or the child being treated as a pupil who cannot be taken off roll without permission. NB there are other situations where a child with an EHCP does not attend school but is receiving elective home education ie the parents are making their own provision. These are cases where the LA will say that a type of school is suitable but parents have chosen to make their own arrangements. In such a scenario, Section I will NOT be left blank but nor should it say anything about home education because as above the only permissible contents of Section I are the name and/or the type of school.
- Derbyshire v EM and DM No absolute requirement to name a school in Section I if it is inappropriate for provision to be made in school
- David Wolfe, Matrix Chambers: Noddy Guide SEN Case Law including: not best possible education; look over time; order of decision-making (for statement); provision corresponding to need; requirement for specificity; importance of quantifying; not require provision to be made by parents; exceptional ability or being gifted is not an SEN; whether the child’s needs can be appropriately met in a particular school, NOT whether they could be better met in another school; LA remains ultimately responsible for special educational provision; other children with greater SEN met in particular school not relevant; specifying type of school; relevance of breakdown relationship parent and school; relevance of stress on a pupil; efficient use of resources; incompatible with efficient education of others; how to calculate public expenditure; what is unreasonable; part-time school; home programme or non-school placement; ceasing to maintain statement; school transport not an educational need; appeal to Upper Tribunal
- Case law from Ipsea including comparative costs; transport; specificity; therapies as educational need; banding; professional liability
- 11kbw SEN case law including ; status ASD unit in mainstream; naming Free School; suitability of proposed schools; parental choice of mainstream Tandy Case 1998 https://www.ipsea.org.uk/r-v-east-sussex-county-council-ex-parte-tandy-in-re-t-a-minor-1998-2-wlr-884 cannot cut on basis of cost
- DM and KC vs Essex County Council 2003 Parents do not have to make the provision specified in SEN statement
- Upper Tribunal KM v Work and Pensions (DLA) 2014 Dyslexia as SEN for DLA
- Hammersmith 2012 Waking Day Curriculum, independent boarding
- Upper Tribunal Kensington and Chelsea 2015 Non-Standard Expert Evidence more on this
- Upper Tribunal Worcestershire 2012 More on this Test For Special Provision Is Normal Mainstream
- Upper Tribunal Hammersmith and Fulham + Lancashire 2015 summary relative cost rival schools
- Specificity, following L v Clarke and Somerset 1998 (Ipsea link, dyslexia)
- Upper Tribunal Hillingdon and Buckingham 2016 16+ Transition More on this; not necessarily having to be doing a course or judged capable of making significant progress + legal status of parents when YP with SEND is over 16 or 18 (+ what does it mean to "lack capacity" or for parents to be the young person's "representative" or "alternative person".) See also Steve Broach analysis of Hillingdon and Buckinghamshire, June 2016
- Upper Tribunal Hertfordshire 2016 SEN definition pertaining to disability and autism + look at law rather than Code, More on this
- Upper Tribunal East Sussex 2016, naming home as placement, waking day curriculum, section 61 education otherwise than at school, ‘direct’ special educational provision versus ‘deemed’ special educational provision (social care provision which educates or trains to be treated as special educational provision), post-19 EHCPs, preparation for adulthood and independent living as special educational provision. More on this
Making A Complaint
All local authorities are required to have a formal complaints process. Before using the Council's formal complaints procedure you may be encouraged to try and resolve the problem informally. If this doesn't work you can request a copy of your local authority’s formal complaints procedure, or search for it on your local authority's website. You shouldn't need any more than a brief summary of your complaint at the outset, since the council may first have to decide what type of complaint it is.
If you aren't satisfied with what your council decides about your complaint, you can take it to the Local Government Ombudsman. Be aware that the Ombudsman (LGO) can usually only look at your case after the local authority's own complaints procedure has been exhausted. More
The Ombudsman is concerned with process, not with the merits of council decisions taken properly. This means that some types of dispute will come under the LGO while others will be for the SEN Tribunal. If you look at the LGO SEN decisions you will get an idea of how this works.
LGO complaints related to SEN include lack of alternative provision, and failings in children's social care.LGO SEN decisions include delay in issuing EHCP; failure to arrange alternative provision for child with SEN refusing school; failure to provide speech therapy as per statement; failure to provide education for child out of school on medical grounds; delay in providing residential placement (confusion between health education and social care over who pays)
- covers nine general categories of dispute, from inter-agency disputes and complex cases to delays and resource issues, and offers detailed advice for resolving them
- identifies key factors that can empower people to claim their rights and to challenge failures when they occur
- offers advice on preparing for, attending and following up on meetings
- sets out a series of template letters that families can use in a variety of situations
Complaining via MPs and Local Councillors
Some MPs will ask a question in parliament on your behalf (this is known as a PQ) Your MP can also write to the Chief Executive or the Director of Children's Services on your behalf, and may be able to put you in touch with the councillor who has responsibility for scrutinising Children's Services.
Some councillors may write letters on your behalf and they may also be able to suggest a local council committee or panel or other scrutiny body where you can take your concerns.
You can either go to your local councillor or to a councillor with specific responsibility for the area you are complaining about, which you should be able to find out via your council website if you look for council business/meetings/committees.
When drafting emails to councillors and MPs please be aware that these might be forwarded to the person or service you are complaining about.