SEND appeal process
The process of making an appeal can take up to five months depending on the type of case.
Usually, there will only be one hearing where you need to visit the tribunal. You have the right to appeal against the Council’s decision as soon as they have sent their decision in writing.
The Council must notify you of:
- Your right to appeal the decision
- The time frames you have to appeal the Council’s decision
Who can make an appeal?
Children aged 16 and under
Appeals concerning children aged from birth to 16 years old can be brought by a parent, someone with parental responsibility or someone who cares for the child.
Children aged 16 to 25
Appeals concerning a young person aged between 16 and 25 years old can be brought by the young person if the young person has the mental capacity to make an appeal. Appeals made by a young person will usually be supported by an advocate, which can be a parent, family members or other individuals including someone who has been paid to do so. A representative can also act on behalf of the young person for the appeal process and hearing, if appointed to by the young person.
However, if the young person does not have the mental capacity to make decisions, then it can brought by an Alternative Person acting in the best interests of that young person. This well be any Deputy appointed by the Court of Protection or the young person’s parents. If you have any special needs or need any special arrangements to be made ensure that you give details on the form.
Timeframe for appealing
- You have 2 months from the date on the decision letter to appeal or
- You have 1 month from the date on the Mediation certificate to appeal (whichever date is later)
You have no right of appeal if the Council has carried out an EHC needs assessment in the past six months.
If you miss the deadline, a Tribunal Judge may extend the time for making the appeal, but you must ask for the extension by:
- Sending the SEND Tribunal your completed appeal form as soon as possible
- Explaining why the appeal is late giving full reasons for the delay
- Explaining why you consider the appeal will be successful and should go ahead even if late
- Explaining why the Council will not be prejudiced by the late appeal
- Explaining why you should not have to wait for an annual review or ask for another assessment
- Drawing attention to any other matters that you think are relevant
The Tribunal Judge may allow an extension if there are special circumstances which prevented the appeal being made in time and it is fair and just to do so. If the tribunal Judge allows the extension, the appeal will go ahead. If the Judge refuses an extension, the appeal will go no further.
Appeal forms and supporting documents can now be submitted electronically.
Along with your appeal form it is useful to enclose photocopies of any evidence or information that supports your appeal. You must also include your mediation certificate to show you have spoken to the mediation adviser and either considered mediation or entered mediation (unless you are only appealing the name of the education setting in section I of an EHC Plan).
You may find it useful to familiarise yourself with the forms and how to complete them by watching these useful videos which were produced by the Kent Information, Advice and Support Service (IASK):
What should I send with the form?
With the completed and signed form send the SEND Tribunal the following:
- A copy of the letter the Council letter sent you that told you of its decision.
- Your mediation certificate.
- The evidence supporting your arguments.
- A list of all the documents enclosed with the application (it will be helpful to the SEND Tribunal if you put your evidence in chronological order, and then write out a list explaining what each document is).
Do not send original documents, send photocopies or scans. Keep a copy of everything you send, including the form.
What happens after I send my appeal?
SEND Tribunal will tell you that the appeal has been registered and the date of the final hearing of the appeal within 10 working days of receipt.
When the appeal is registered you should be issued:
- Case directions – will tell you the dates when you must take action and send the Council and SEND Tribunal information which will be considered at the hearing.
- An attendance form – you must complete the form if you wish to have someone as a witness. If you do not complete the form within the dates set your witness can be struck off from attending the hearing.
- A case management questionnaire – a questionnaire is given to you to fill out asking you about any issues you feel need to be sorted out before the hearing. At least 10 days before the hearing, you will receive a full copy of the appeal bundle and details of the time and hearing venue.
Once notified, the Council has 30 working days to make one of the following options:
- Oppose your appeal.
- Apply to strike out your appeal and ask that it is brought to an end if they feel it is a case that the Tribunal cannot consider.
- Not oppose your appeal – for example this could be that they agree to amend the EHC Plan. If you are satisfied with the outcome, you can withdraw the appeal or ask the Tribunal to order the Council to change the EHC Plan in the way you have agreed, by making a consent order.
The Tribunal timeline
It can take up to 20 days for the Tribunal Application to be registered.
On the day that the application is registered with Special Educational Needs and Disability Tribunal (SENDIST) the 12 week timescale begins:
The appeal is registered and case directions are sent to the parent or young person
Council response/Council Attendance Form and an electronic version of the EHC Plan must be sent from the Council to the Tribunal and the parent/young person
Parent/young person Attendance From due to be sent to the Tribunal
Final evidence to be provided by both parties (parent/young person and Council)
The Council must send out a ‘bundle’ to the parent/young person and the Tribunal
The Tribunal Hearing
Appeals will be heard by a panel consisting of a legally qualified Tribunal Judge who will chair the hearing and up to two specialist Panel members who have knowledge and experience of children with SEND.