Frequently Asked Questions - Tribunals
The First-tier Tribunal (Special Educational Needs and Disability) (the “SEND Tribunal”) is an independent national tribunal which hears parents’ and young people’s appeals against LA decisions about the special educational needs of children and young people.
How to Appeal to the SEND Tribunal
If you are not in agreement with a decision that the Local Authority has made in relation to your (or your child’s) SEND, you can appeal against it to the First -tier Tribunal (Special Educational Needs and Disability). This is part of a system of courts which will make a decision on appeals or claims regarding a child’s or young person’s Special educational needs or disability.
Appealing to the SEND Tribunal is a formal legal process and can feel quite daunting for parents.
You can lodge an appeal, either within two months of the original decision being sent by the local authority, or within one month of the date of the mediation certificate whichever is the later.
You have the right to appeal to the First Tier Special Educational Needs and Disability Tribunal if you have either:
- not reached an agreement following Mediation
- decided not to take part in Mediation
You can find more information on appealing on the GOV.UK website.
Please note that you must contact or use mediation or disagreement resolution before appealing to the SEND Tribunal.
It’s a good idea to continue talking to the local authority when you are in disagreement, as it may be possible to resolve without having to lodge an appeal. Let them know what it is you disagree with and what you would like changed.
Continue talking with the local authority even after lodging an appeal.
What is the Single Route of Redress?
The Government have extended the powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans.
Previously you have only been able to appeal the educational aspects of EHC plans. The Single Route of Redress gives you new rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHC plan in one place.
It is only possible for the Tribunal to consider the health and/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.
What is the National Trial?
The national trial commenced frin April 2018, concluded in August 2021 and tested the extended powers for the SEND tribunal. The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the tribunal’s extended powers. You can view the evaluation of the trial on GOV.UK.
Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of EHC plans.
Can parents ask for recommendations on health and social care issues at Tribunal?
The Single Route of Redress now gives you the opportunity to also request recommendations about the health and social care content of the plan at the same time. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.
This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on their websites.
When can a parent or young person request recommendations about the health and social care elements of an EHC plan?
You can request the Tribunal makes recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:
• the description of the child/young person’s special educational needs in an EHC plan
• the special educational provision specified in an EHC plan
• the school or other educational institution named in an EHC plan
• a decision by the local authority not to issue an EHC plan
• a decision by the local authority not to carry out a re-assessment for a child/young person who has an EHC plan
• a decision by the local authority not to amend an EHC plan following a review or re-assessment
• a decision by the local authority to cease to maintain an EHC plan
How can a parent or young person request a health or social care recommendation?
If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the normal process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal. Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website
Lodging an appeal - will it cost me anything?
There are no costs to you with appealing, unless:
- you choose to have legal representation. (If you decide to have legal representation, it is likely the local authority will also instruct a lawyer).
- a witness you call charges a fee.
Read the SEND Tribunals’ guide ‘ How to appeal a SEN decision’
What sections of an EHCP can I appeal?
You may only appeal these educational sections of an EHC plan:
Section B– Special Educational Needs
Section F– Special Educational Provision
Section I– The school or setting named, or that no school or setting is named
You may not appeal sections A (views of your child), E (the required outcomes) and J (direct payments)
How do I start an appeal?
You can lodge an appeal , either within two months of the original decision being sent by the local authority, or within one month of the date of the mediation certificate whichever is the later.
You can send in the post or by email marking ‘New Appeal’ (the address and email address will be on the form you complete):
- your decision letter from the local authority
- your signed mediation certificate
- your reasons for appeal
- completed, signed form either form SEND35 or for a ‘refusal to assess’ appeal form SEND35a
Your appeal reasons and supporting evidence can be submitted at this stage, but you can send in further information at a later date. However, check any correspondence from SEND Tribunals carefully as there are strict submission deadlines within this legal process.
- Be sure to include the views of the child or young person
- Organise your appeal so that it will be easy for the panel to read and understand your key points.
- Use paragraphs with headers and number your points, include a page which lists all your supporting documents (contents or appendices). Send copies of any documents, not the originals.
- Within your appeal refer to evidence that backs up your points
- Link your points to relevant law where you are able.
- It can be helpful to write an opening summary or bullet point your key issues.
- Remember the panel do not know your child, so make sure you include all their needs but…
- Be as concise as you can, particularly with background history. Stick to needs that are still relevant.
What happens before the hearing?
The appeal will usually be registered by SEND Tribunals within 10 working days (may be longer during periods of high volume) of receipt and they will write to you with the hearing date, and your deadline for submitting further documents or evidence.
The local authority will receive a copy and will be given 30 working days to respond including whether they oppose the appeal.
Before the hearing* you will receive a copy of the full appeal bundle which includes details of the time and venue
Can I send additional evidence and Information?
Try to send all your evidence to the SEND Tribunal with your appeal form.
If you have not submitted all your evidence the SEND Tribunal will tell you when you must send other evidence by.
You must send copies of everything to the council as well.
Can I ask for a witness?
You can ask professionals to be your witness, establish whether they can provide a letter, report or witness statement which helps you to evidence your key points. You may, for example, ask that they clarify or expand the information they have provided as part of the assessment.
You could ask if they will come along to the hearing (no more than three witnesses), if they decline you can request a summons for them to attend – before you do this be sure they intend to support your case! They will be expected to provide a written report to be included within evidence too.
Private therapists and psychologists you call are likely to charge you a fee to attend a hearing
The local authority can ask professionals to attend as witnesses too – you will be able to see who they have called when you receive the bundle.
You will need to let SEND Tribunals know of your witnesses when you complete the case review form (or attendance form.)
Can I change an Appeal?
You can change your appeal once it has been registered. You can do this by using the ‘request for change form‘ (copied to the local authority) to explain why you would like the Tribunals service to arrange this for you. You will need to show that you have liaised with the local authority and include their response – the request will be rejected if you have not asked them your question or included information about their response.
You might want to change which setting, or type of setting, you are appealing for or perhaps you want to request a change to the hearing date
What is Telephone Case Management?
This is where a conference call is arranged between the tribunal judge, the local authority and you (and/or your representative). You will be given a number to call and call joining instructions beforehand.
It might be that one party has requested this or perhaps the judge would like something clarified ahead of the hearing. Sometimes it can be just to set a new hearing date.
You can also request Telephone case management, perhaps where you would like some information from the local authority or clarification of something that cannot wait until the hearing. Use the ‘request for change‘ form (copied to the local authority) to explain why you would like the Tribunals service to arrange this for you. You will need to show that you have liaised with the local authority and include their response – the request will be rejected if you have not asked them your question or included information about their response.
What happens at the Hearing?
There are two types of hearing - paper hearings and oral hearings
‘Refusal to assess’ appeals are usually ‘paper hearings‘ unless you request an oral hearing.
You do not have to attend but it is more helpful if you do so you can ask and answer any questions about your appeal.
- Oral hearings* will be considered by a panel at a family court as close to your home as possible
- Usually this is one day but could be over two days depending on the appeal.
- Sometimes a hearing may be adjourned.
- The panel consists of a tribunal judge and up to two specialist members.
- Your child may attend for all or part of the hearing, and all parents may attend
- The judge will introduce and give an overview of the hearing
- You will be asked questions and will also have the opportunity to ask any questions of the local authority and witnesses
- You can make a closing statement or summary, it can be helpful to bring with you a photo and your child’s views that you can share
- The decision will be communicated to you (and the local authority), within 10 working days of the hearing
What happens after the hearing?
The Tribunal decision will be communicated with you (and the local authority), within 10 working days of the hearing.
Following the decision, the local authority must comply with these timescales:
To start the assessment or re-assessment process – four weeks
To make an EHC plan – 5 weeks
To amend the school/college/institution – 2 weeks
To continue an EHC plan – immediately
To cease an EHC plan – immediately
Health and Social Care recommendations
Though the tribunal will not be able to make legally binding orders on health and social care, it has been made clear that their recommendations will generally be followed. The responsible health body or social care team must respond in writing to you within 5 weeks of the recommendation being made.
If a decision has been taken not to follow all or part of the recommendations, the health body or social care commissioner must give sufficiently detailed reasons for that decision
Useful Information and Advice
What can I appeal against?
You can appeal if:
- The local authority has refused to carry out an EHC needs assessment for your child.
In this situation the tribunal can order the local authority to carry out an EHC needs assessment.
- The local authority has refused to issue an EHC plan after an EHC needs assessment.
In this situation, the tribunal can order the local authority to issue an EHC plan.
- You have received a final EHC Plan and you are not happy with:
- The description of your child’s special educational needs in part B.
- The description of the special educational provision in part F.
- The education setting named in part I or if there is no setting named.
The tribunal can order the local authority to change these sections of the EHC plan.
- The local authority has refused your request to carry out a reassessment of your child’s SEN.
The tribunal can order the local authority to carry out an EHC assessment of your child’s SEN.
- The local authority has refused to amend the EHC plan after an annual review or a re-assessment.
In this situation, the tribunal can order the local authority to amend the plan with changes to parts B, F and I.
- The local authority has decided to cease to maintain (end) your child’s EHC Plan.
In this situation, the tribunal can order the local authority to maintain the plan, with changes to B, F and I if necessary.