Appeals/Mediation

 

Appeals can be made to the First-Tier Tribunal (otherwise known as the SEND Tribunal),  an independent national tribunal which hears parents’ and young people’s appeals against Local Authority (LA) decisions about the special educational needs of children and young people

When considering Education, Health and Care Plans (EHCPs), the tribunal can deal with appeals relating to the educational sections.

 

Appeals can be made to the SEND Tribunal in the following circumstances where the LA:

  • Refuse to carry out an EHC needs assessment that has been requested.

  • Have carried out an EHC needs assessment but then decided that the child or young person does not require an EHCP to meet their special educational needs and refused to issue an EHCP as a result.

  • Have agreed to issue an EHCP but there is a dispute about its contents relating to:

    • The description of the special educational needs (Section B)

    • The special educational provision (Section F)

    • The school or institution (or lack of) (Section I)

  • Refuse to carry out an EHC needs re-assessment that has been requested.

  • Refuse to amend an EHCP following an emergency or annual review  (Click here to visit the Annual Review page).

  • Have decided to cease the EHCP.

You can also request that tribunal makes recommendations about the health and/or social care aspects of an EHCP, but only where you are already making an appeal on the educational aspect of the EHCP (please click here for more information (docx, 24kb)). 

An appeal can be made by:

  • The parent or carer of a child under compulsory school age (16), or;

  • Directly by young people aged 16-25.

In the case of a young person who lacks capacity, a parent, carer or representative may appeal on their behalf.

At the time of writing to inform you of their decision regarding any of the above, the Local Authority’s SEN team will inform you of your right to pursue an appeal to the SEND Tribunal.

This letter should contain the following information on your rights of appeal:

  • your right to appeal that decision;

  • the time limits for doing so;

  • information about mediation, including relevant contact details;

  • the availability of:

    • disagreement resolution services; and

    • information and advice about matters relating to the special educational needs of children and young people.

The appeal form

You will need to fill in an appeal form, which you can also download from the SEND Tribunal’s website

To appeal against the LA’s refusal to carry out an EHC needs assessment you will need to complete the SEND35A form (pdf, 172kb).

To appeal against any other matter (as outlined in ‘What can I appeal against?'), you will need to complete the SEND35 form (pdf, 204kb).

With the completed and signed form send the SEND Tribunal the following:

  • A copy of the letter the LA sent you that told you of its decision

  • A copy of the EHCP (if an EHCP has been issued)

  • Your mediation certificate (unless the appeal relates only to the school or institution named under Section I of the EHCP – See ‘Mediation’ for more information)

  • The evidence supporting your arguments

Do not worry if you do not have all your evidence ready at the time of submitting your application, as there will be opportunities to submit further evidence at a later date.

Do not send original documents, send photocopies or scans. Keep a copy of everything you send, including the form.

The appeal must be received by the Tribunal within two months of the date of the letter from the SEN team or one month from the date of obtaining a mediation certificate (whichever is the later date). In exceptional circumstances, the Tribunal may accept appeals outside of these time limits.

Mediation is a less formal way of trying to settle the dispute between you and the LA. It involves a meeting between you, the LA and an independent mediator, who will try to help you reach agreement on the points of dispute. Mediation meetings are arranged locally, so that you do not have to travel far. The mediation may also be attended by other relevant parties such as representatives from the child or young person’s school or college. Mediation is free of charge, voluntary and confidential.

Parents, carers and young people who wish to register an appeal with the Tribunal may do so only after they have obtained a mediation certificate. The exception to this is if the appeal relates only to the school or institution where a child or young person is to be educated, trained or employed. In this situation, an appeal can be made directly to the Tribunal without the requirement to consider mediation.

For all other types of appeals, mediation must either be participated in or considered before a certificate is issued allowing you to appeal.  

The company responsible for arranging mediation for Southwark residents is KIDS SEN Mediation.  You can download their leaflet (pdf, 1.2mb) or visit their website for further information about the mediation process.

To request mediation (or a certificate if you do not wish to take part in mediation) you can either call KIDS on 0333 0062 835 or complete this form (docx, 874kb) and email the completed form to: mediationlondon@kids.org.uk.  Please also contact them to discuss any queries regarding the mediation process.

You must contact KIDS within 2 months of the date on the decision letter from the Local Authority to either request a certificate or to take part in mediation. It is best to contact them as soon as possible to avoid any risk of missing the deadline.

You can download the KIDS April 2020 - March 2021 Southwark annual report

If you are considering pursuing an appeal, it is strongly recommended that you contact the SIAS team who can provide you with impartial advice and support on pursuing this.

The Tribunal has powers under the Children and Families Act 2014 to:

  • Dismiss appeals;

  • Order the local authority to carry out an EHC assessment;

  • Order the local authority to make or maintain an EHCP;

  • Amend or correct the existing EHCP

Are there any issues the SEND Tribunal cannot decide?

SEND Tribunal cannot deal with a case if the issue is:

  • the way the local authority carried out the EHC assessment, or the length of time that it took;

  • how the local authority or the school or college is arranging to provide the help set out in the EHCP;

  • the way the school or college is meeting your child’s or a young person’s needs under SEN Support;

  • the outcomes in Section E of the EHCP;

  • any disputes about the wording of Sections A, J, K of the EHCP.

You can contact the SIAS team for advice and support with your appeal. You can contact this team by calling 0207 525 3104, by emailing sias@southwark.gov.uk or attending a drop in. If you would like SIAS to support you with your appeal, please click the following link to read the SIAS Appeal Support Offer. (pdf, 137kb) If you have any questions about the advice and support we provide, please get in touch.

Legal Aid

If you are on a low income or receiving certain types of benefits, you may be eligible for legal aid. In some cases a young person (aged 16-25) may qualify for legal aid in their own right.

The type of legal aid available in the SEND Tribunal is known as ‘legal help’. A parent or young person eligible for this will receive support from a legal professional to prepare the case, and may also be able to obtain funding for any additional evidence needed such as reports from independent experts. Legal help does not cover having a representative to attend the hearing. However, in exceptional cases, a legal aid provider may be able to secure funding to represent you at a hearing.

You can check if you are entitled to legal aid here.