The Appeal process is run by His Majesty’s Court and Tribunal Service (HMCTS) and involves the Special Education and Disability Tribunal (SENDIST). This is independent from the LA involved.
Appeal Tribunals involve judicial hearings, which are chaired by a legally qualified Judge. They are regarded as ‘expert panels’ and will include specialist members as well as the Judge.
The Hearings are relatively informal, and the Tribunal members take an inquisitorial approach; that is, they ask questions of those in attendance and examine the evidence presented in writing and orally.
Any witnesses can be questioned to establish the evidence needed to make a decision.
Hearings are usually arranged for a half day or a full day depending on the nature of the appeal.
‘Paper hearings’ are arranged for Refusal to Assess cases, but these can take place for any appeal if the appellant (parent/carer or young person) and the LA both agree.
For other cases, involving oral hearings, SENDIST has been holding ‘video hearings’, in which all parties participate remotely. If requested and deemed necessary, a face to face hearing can be arranged.
The appellant – a parent/carer or a young person, if over 16 – can be represented (e.g. by a disability advocate or IASS supporter, or a legally qualified representative).
LAs can also employ legal representatives to present their opposition to the appeal.
The Tribunal can decide to dismiss or uphold the appeal (in part or in whole)
No decision is given on the day of the Hearing, as the Tribunal Panel discuss the case after all others attending have left.
A written decision – a Tribunal Order – is sent within 10 working days. This summarises the evidence heard, and provides reasons for the decision made.
- Where the SEND Tribunal requires the LA to make an assessment or reassessment, the LA must notify the parents that it will do so (notification starts the EHC Needs Assessment process) within two weeks
- Where the LA has been ordered to issue an EHC plan, it must issue a draft EHC plan within five weeks of the order
- Where the LA has been ordered to amend the special educational provision specified in the EHC plan, the LA must issue the amended EHC plan within five weeks of the order being made.
- Where the LA has been ordered to substitute the name of a school or other institution the LA must issue the amended EHC plan within two weeks.
- Where the SEND Tribunal orders that the LA can cease to maintain the EHC plan, the LA shall cease to maintain the EHC plan immediately.
There is a route for challenging a Tribunal decision if it is felt that there has been an error in law; and leave to appeal must be obtained.
An error of law might involve:
- a failure to explain the reasons for reaching its decision;
- taking into account the wrong factual matters;
- failing to make a finding about a relevant factual matter; or
- applying the wrong legal test when reaching its decision.