Our expert Community Care and Education lawyers address common questions over appealing Special Educational Needs decisions
There are seven situations where you can appeal to the SEND Tribunal:
You can appeal against this decision.
It can be difficult for a Local Authority (LA) to successfully defend an appeal against a refusal to assess, as the Children and Families Act 2014 test sets such a low threshold.
It is only necessary for you to show that your child ‘may’ have Special Educational Needs and it ‘may’ be necessary for special educational provision to be made for them.
If you are appealing against an LA’s refusal to assess, unless you specifically request a hearing, the appeal will usually be considered on paper without a hearing.
If, following an Education, Health and Care (EHC) needs assessment, the Local Authority (LA) decides that your child does not need an Education, Health and Care Plan (EHCP) and refuses to issue a plan, you can appeal to the Tribunal.
The LA must provide reasons for their decision. Their assessment may have been inadequate or incomplete and you may need to obtain independent expert reports to evidence your child’s needs and prove that an EHCP is required to meet them.
If the Education, Health and Care Plan (EHCP) has been issued in final form and you are unhappy with the contents of Sections B, F or I, you can appeal to the SEND Tribunal.
If you are also unhappy with the health and social care sections in the EHCP, your appeal may be eligible for the National Trial process.
First, try to resolve any concerns about Section B or Section F with the school. Request that the school carry out updated assessments and seek amendments to the plan through the Annual Review process.
If the Local Authority do not adopt the amendments made by the school, you can appeal. You may need to get independent expert reports to provide evidence and support the changes you are requesting.
If your child’s current school is not meeting their Special Educational Needs (SEN), your child may require updated assessments and changes to their Education, Health and Care Plan (EHCP).
The revised EHCP can be used to ensure your child’s current school puts extra support in place. If the school fails to put the identified provision in place, the Local Authority has a duty to make sure that this provision is delivered.
Sometimes, updated assessments and / or prolonged targeted support indicate that a child needs more specialist provision which can only be delivered in a different type of school.
You can request a change of placement at an Annual Review, or if the placement has broken down, you can seek an emergency / early Annual Review to address the issues and request a change of placement.
If the Local Authority (LA) refuses to name your preferred school on the Education, Health and Care Plan (EHCP) and proposes a school which you believe is unsuitable, you can appeal to the SEND Tribunal to have your preferred school named in section I of the EHCP.
If your child is approaching a key stage transfer e.g. from primary to secondary school or secondary school to a post-16 institution, you will have the opportunity to request your preferred school.
The Local Authority (LA) will investigate whether your preferred school can meet your child’s needs and offer a place. They will also consider the cost of the placement and may consult with other local schools.
The LA will amend your child’s Education, Health and Care Plan (EHCP) to name a school by 15 February in the year of school for transfers from nursery to primary and primary to secondary, or by 31st March for transfers from secondary to post-16 provision, or post-19 transfers.
If you do not agree with the school named on the EHCP, you have the right to appeal to the SEND Tribunal to seek to have your preferred placement named instead.
Section C must set out any health needs which relate to a child or young person’s Special Educational Needs (SEN).
Section G sets out the health care provision they require and must be agreed by the local NHS.
Sections H1 and H2 then set out any social care provision which the child requires by reason of their disability or SEN, including any provision secured through a social care direct payment.
If you have an appeal against the educational sections of the plan, then the SEND Tribunal currently has powers to also consider the health and social care aspects of an Education, Health and Care Plan.
The Tribunal can only make non-binding recommendations in relation to health and social care provision.
The Tribunal cannot consider health and social care issues if there are no educational issues under appeal.
If you cannot appeal to the SEND Tribunal, there are other possible routes of redress such as health or social services complaints processes, complaints to the Local Government and Social Care Ombudsman, and in certain circumstances Judicial Review claims.
A ‘cease to maintain’ decision means that the Local Authority (LA) will no longer make provision for your child’s Special Educational Needs.
There are situations where the LA has the discretion rather than a duty to maintain your child’s Education, Health and Care Plan (EHCP) provisions, such as post 19 education.
If your child is still of compulsory school age, the LA can only cease to maintain your child’s EHCP if they no longer need the special educational provision set out in the EHCP, or if the LA are no longer responsible for your child because, for example, you have moved to another area.
LAs must not cease an EHCP simply because your child is 19 or over and must consider whether your child has met the educational or training outcomes in their EHCP.
If your child still requires the special educational provision in their EHCP and needs more time in education or training, then you can challenge the LA’s decision to cease to maintain the EHCP through the SEND Tribunal appeal process.
If you or your family require specialist advice about health and care needs for disabled children under 25, please contact us today on 01273 609911, or at firstname.lastname@example.org to see how our Community Care and Education Law Team can help.
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