It is possible to appeal to the independent Special Educational Needs and Disability Tribunal (SENDIST) on a number of issues:
- Refusal to undertake an EHC Assessment.
- Refusal to Issue an EHCP.
- Refusal to undertake a Re-Assessment.
- Refusal to Amend the EHCP following an Annual Review.
- Cease to Maintain the EHCP.
- Description of Needs (Section B) in the EHCP.
- Description of Provision (Section F) in the EHCP.
- Name of the educational placement (Section I) in the EHCP.
In all cases, (except for appeals when ONLY the placement is disputed) a Mediation Certificate is required before the appeal can be sent to SENDIST.
For Refusal to Assess appeals, a specific Appeal Form SEND35a is used. For all other appeals, the Appeal Form SEND35 is used.
Refusal to Assess appeals are usually dealt with as ‘paper hearings’; with the Tribunal deciding the case on the evidence provided without the need for anyone else to attend.
For other appeals there is usually an ‘oral hearing’ and witnesses and representatives can also attend.
Appeals in respect of children are made by the parent or carer.
For anyone over 16, the appeal is usually made in the name of the young person (though the parent/carer can still be involved).
Appeals must be made within two months of the date of the LA decision letter.
If there is a Mediation Certificate, the appeal must be made within 1 month of the date on that Certificate.
It is the later of these two dates which is relevant (i.e. if a decision is made on 17 March then the appeal deadline is 16 May; however, if the Mediation Certificate is dated 24 April then the deadline becomes 23 May).
There is also, in most cases, the opportunity to request that the Tribunal issue recommendations with regard to Health and Social Care assessments or provision. The Tribunal can make ‘recommendations’ to the health and social care sections of a plan. These are non-binding but there is an expectation they will be followed. If not the LA (for social care) or the Integrated Care Board (ICB) (for health) will need to write to the parents/young person and Tribunal within 5 weeks of the decision, explaining why it has decided not to follow the recommendations. The ICB is the local body that oversees the delivery of health services (before July 2022, clinical commissioning groups (CCG)).
With appeals that concern a decision to Cease to Maintain an EHCP, it is important to note that the EHCP – provision and placement – continue until the appeal is resolved (i.e. until a written decision is received from the Tribunal).