Policy piece

The Special Educational Needs and Disability (SEND) Tribunal has brought in new changes to the appeal process. The changes were brought in from 1st August 2016 and have not been widely publicised. The Tribunal’s website will be changed in due course. However, the changes are set out below.

What can be appealed?

There are a limited number of circumstances in which parents or a young person (over 16 years with mental capacity) can challenge a local authority’s (LA) decision to the SEND Tribunal.  Challenges can be around:

  • LAs refusal to conduct an Education, Health and Care needs assessment.
  • LAs refusal to issue an Education, Health and Care Plan (ECHP) for your child.
  • The description of your child’s special educational needs in the EHCP (section B).
  • The support set out to cater for your child’s special educational needs in the EHCP (section F).
  • The placement named in the EHCP (section I).
  • LAs decision to cease to maintain the EHCP.

What cannot be appealed?

The following content of the EHCP cannot be challenged at the Tribunal:

  • Parents’/child’s/young person’s views, hopes and aspirations (section A).
  • Health and social care support and description of needs (sections C, D, G, H).
  • Outcomes set out (section E).
  • Personal budget (section J).

Only the educational sections of the EHCP can be challenged (sections B, F and I). What cannot be appealed against are the description of needs and support set out under the health and social care sections of the EHCP.

Our advice to parents is to, therefore, ensure that all their child’s educational needs are set out under the Education sections of the EHCP. ‘Education’ now includes education and training – a wider definition than the traditional idea of education, prior to the Children and Families Act 2014.

The Special Educational Needs Code of Practice 2015 makes it clear that, where health or social care provision educates or trains a child or young person, it must appear under the education section.

Education can include support from a speech and language therapist, occupational therapist and physiotherapist, even though this support will be provided by health professionals.

Appeal timetable shortened

All SEN appeals registered after 1st August 2016 will be allocated a 12-week timetable instead of the previous 20 weeks. The aim is for all new appeals to be allocated the following timetable:

Week 0                 Appeal registered

Week 6                 LA response and attendance form

Week 9                 All further evidence

Week 12              Hearing

The parents’ attendance form, setting out who they want to bring to the hearing to give evidence, will need to be sent to the Tribunal between week 6 and week 9.  The Tribunal will send parents a blank attendance form when their appeal is registered (week 0).  The registration paperwork will also set out when the attendance form is due back. Currently, it is unclear when exactly the parents’ attendance form will be due.

The tribunal is trying to fit in all new appeals in this timetable but, we have been told, and have experienced, times where it may not be possible.

The local authority and/or parents can ask for the appeal timetable to be extended if additional time is required, for example, to gather evidence. Either party can also ask for an even shorter appeal timetable (seven weeks) if necessary.

What does this mean for parents?

For many parents, a shorter appeal timetable will be welcome news, as it means disagreements will be resolved quicker.

However, a shorter appeal timetable means that parents need to be well prepared. They will need to have all their evidence ready when lodging an appeal, as there will be very little time after an appeal is lodged to start thinking about getting assessments done and reports ready in time for the further evidence deadline.

We work with many experts who assess for Tribunal appeals. Our experience is that they tend to have long waiting times, sometimes almost a year. This will clearly not work with a shorter hearing timetable. This may be a problem for unprepared parents but, on the other hand, the local authority has the same time limitations.

What can parents do? Parents can, to some extent, control their hearing date. They can time the lodging of their appeal to fit in with when they think they might get all their evidence together. An appeal has to be lodged within two months of the local authority’s decision letter or within a month of the mediation certificate, whichever is the later date. With most appeals, parents now have to attend or, at least, consider mediation before lodging an appeal. The mediation service must be contacted within the two-month period and a certificate will be issued when mediation is completed.

So, if parents think they will need more time to gather reports, they could contact mediation towards the end of the two-month period and lodge an appeal, at the latest, within a month of the mediation certificate.

Refusal to assess appeals

From 1st August 2016, all appeals against the local authority’s refusal to carry out an Education, Health and Care needs assessment will be heard on the papers alone. This means that there will be no hearing unless a specific request is made in writing setting out reasons.

What does this mean for parents?

Preparation, preparation, preparation! There will be no opportunity, unless parents want to specifically request an oral hearing, to leave evidence to week twelve. It will be even more important that all evidence is sent at the outset.

For the LA, it is likely to mean that they will have to set out their reasons for refusing assessments with more detail than many local authorities currently do.

What do we think of the changes?

We welcome the shorter appeal timetable. It fits in well with the overriding objective of the Tribunal rules to deal with cases expediently, and in a way that avoids delay. Twenty weeks to resolve issues around a child’s schooling has always been considered to be too long. Twenty weeks is half a school year. Considering that many appeals will follow a twenty-week assessment process, parents could easily be looking at a year to resolve any education issues, which is simply not good enough.

We are more cautious with the refusal to assess appeals being heard on papers alone. Some parents may not be able to set out their case effectively in writing.

This article was written by Laxmi Patel, solicitor and Head of Education at Boyes Turner LLP. Boyes Turner Special Educational Needs (SEN) team advises parents and young people exclusively on SEN matters. If you would like to talk about your child’s special educational needs then please contact the team at advice@senexpertsolicitors.co.uk or call 0800 884 0723. 

SEND Tribunal pilot – possible future changes
The SEND Tribunal trialled a pilot scheme, allowing it to make recommendations about the content of the health and social care sections of the EHCP. Seventeen LAs took part in the pilot. Parents and young people in these LAs were able to ask the Tribunal to consider health and social care sections at the same time as appealing the education sections.

Under the pilot, the Tribunal was unable to make an order, as they can for education, but permitted the Tribunal to make recommendations for the relevant bodies. The pilot ended on 31st August 2016. A review of the outcomes of the pilot is expected in due course. It is hoped that the pilot will lead to an increase in Tribunal powers in the future.