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 if the council refuses to carry out an EHC needs assessment. You can also appeal if the council decides to cease the statement or EHCP. See the summary from Public Law Today here. This is an insider's view of tribunals. Here are changes to the tribunal system from August 2016.
NB when the time comes to convert the statement to an EHCP, the council MAY take the opportunity to say that there is no further need for a statement, and therefore no need to convert to a Plan If the transition process is already underway, any appeal will be under the NEW law against the council refusing to make a Plan. (See Confirmation from Ipsea and DfE page 3)
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".)
The family (and any witness) is able to claim travel expenses to the tribunal hearing.
Guidance to LAs on Preparing Tribunal Bundle from Oct 1st 2018 dealing with page limits for evidence OUTSIDE the core bundle.
If you are not satisfied with the First Tier Tribunal you can appeal. More SEND20 (guidance notes for appeal if disagreeing with FTT decision) SEND20A (application permission to appeal) SEND20B (application to review, change of circumstances) SEND20C (application set aside final decision) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/455196/upper-tribunal-procedure-rules.pdf August 2015, Upper Tribunal
SEND25 How to Appeal Guide, New Law. 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 court 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 lot of leeway as the LA is able to submit reasons for delay. [SEND25]
However, under the new law it is also the LA which is now responsible for collating the final bundle of evidence, rather than the tribunal service. In April 2016 the courts issued guidance in SEND27 for the LA submitting its bundle of evidence, whereby "the bundle must be prepared and distributed as soon as possible, so it must be received no later 12 noon on the date specified in the case directions. A failure to comply with the deadline imposed for the preparation of the bundle will lead to the automatic barring of the LA from further participation in the proceedings. A hearing will then be held at which the LA will not attend."
SEN Tribunal forms can be downloaded here. There is a 2 month time-limit for appealing, which begins from the date on the local authority's letter. If you are appealing anything about an EHCP under the new law you cannot go straight to tribunal without first obtaining a mediation certificate. (This doesn't apply to tribunals regarding statements)
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. If you have to pay, you can get an idea of costs from this Simpson Millar guide (See some cases won for parents by Simpson Millar (formerly Maxwell Gillott) here). Another well-known firm is Boyes Turner (BTsen).
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'...
2013 survey + analysis of tribunals
SEND Tribunal Statistics
In 2015-16 a total of 3154 appeals were registered with the SEND tribunal, but only 883 SEN cases were heard at tribunal. SEND tribunal had the largest number of postponements as a proportion of listed hearings – 76% of its listed hearings were postponed compared to 60% in 2015/16. SEND postponements have been increasing year on year, increasing by 88% (from 774 to 1,454) from 2015/16 to 2016/17. [Source]
Most SEN cases don't get as far as a hearing.
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 and concede and not contest the appeal.
Of the 883 SEN cases heard at tribunal in 2015-16, some would have been registered the previous year. Likewise, postponements and delays mean that some of the appeals registered in 2015-16 will carry over into the hearing statistics for the following year. Table 1
There were 3,200 recorded outcomes for SEN appeals; 28% of all outcomes were decided by a tribunal hearing which is 4% higher than the previous year. The first tier tribunal judge will not necessarily be any kind of SEN expert (see Tribunal President Annual Report 2016 for an explanation of hearing schedules.)
88% (780/883) of outcomes were in favour of the appellant ie against the local authority. It should however be noted that 103 of the initial decisions (9%) were appealed, which can be very time consuming and potentially expensive. Appeals may EITHER be from parents OR from local authorities who are not happy with the first tier tribunal judgement.
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. Table 6
In 2015-16, appeals against the content of statements or contents of EHC plans accounted for more than half of appeals registered (ie against either the description of SEN, the provision required and/or type of school named), while appeals against ‘refusal to secure an EHC assessment’ accounted for approximately one third of appeals. The most prevalent SEN in registered appeals was autistic spectrum disorder, which represent the highest number going all the way to tribunal, the highest number withdrawn or conceded BEFORE the hearing and also the most likely to be followed by an appeal AGAINST the decision on the part of the LA or the parent. pdf overview + Table 7 and Table 8
To see which local authorities have proportionately more tribunals, click on Table 5
Relevant SEND Upper Tier Tribunal Decisions
- David Wolfe, Matrix Chambers: Noddy Guide SEN Case Law March 2018 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 (section 319); 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 more on this 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
- South Tyneside 2016 specificity, following L v Clarke and Somerset 1998 (Ipsea link, dyslexia, also referenced in David Wolfe above)
- 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.
To find out about the Local Offer for children and young people with special needs, click here