Appealing to the Tribunal
The Role of the Tribunal
The First-tier Tribunal (SEN and Disability) is overseen by Her Majesty’s Courts and Tribunals Service. It hears appeals against decisions made by local authorities in England about children and young people’s Education, Health and Care needs assessments and Education, Health and Care Plans. It also hears disability discrimination claims against schools and local authorities.
- Parents – in relation to children from birth to the end of compulsory schooling, and
- Young People – over compulsory school age until they reach 25. Young people can register an appeal in their name but can also have their parent’ help and support if needed.
Parents or young people can appeal about:
- When the Local Authority decides not to carry out an Education, Health and Care needs assessment or re-assessment
- When the Local Authority decides not to issue an Education, Health and Care Plan following an assessment
- When the parent or young person disagrees with:
- the description of the child or young person’s Special Educational Needs specified in the Education, Health and Care Plan
- the special educational provision specified
- the school or other institution or type of school or other institution specified in the plan
- or that no school or other institution is specified
- When the parent or young person disagrees with an amendment to these elements of the Education, Health and Care Plan
- When the Local Authority decides not to amend an Education, Health and Care Plan following a review or re-assessment
- A decision by a local authority to cease to maintain an Education, Health and Care Plan
An appeal cannot be about Personal Budgets but can be about the special educational provision to which a Personal Budget may apply.
An appeal cannot be about the health and social care elements of an Education, Health and Care Plan alone. For these parts parents or young people can go to mediation or follow local health and social care complaints procedure. For more information about including health and social care elements in an appeal about the education elements of the Education, Health and Care Plan please see our advice page about the Single Route of Redress - SEND Tribunal Extended Powers.
Appeals must be made to the Tribunal:
- within two months of the Local Authority sending the letter to parents or young people about their decision, or
- within one month of a certificate being issued following mediation or the parent or young person being given mediation information.
Form SEND35: Special Educational Needs and Disability Tribunal appeal
Use this form to appeal a local authority’s decision about a child or young person. Can be used by parents, those with parental responsibility, or by a young person aged 16 to 24. - https://www.gov.uk/government/publications/form-send35-special-educational-needs-and-disability-tribunal-appeal
Form SEND35a: Special Educational Needs and Disability Tribunal appeal a refusal to secure an EHC Needs Assessment
Use this form to appeal a local authority’s decision not to secure an EHC needs assessment of a child or young person. This form can be used by parents or those with parental responsibility, or by a young person aged 16 to 24.
In addition the parent or young person must also send:
- a copy of the decision letter that they are appealing against and the date when the decision was made, or the date of the mediation certificate
- reasons as to why they are appealing, explaining why they disagree with the decision
- copies of all relevant documents, such as copies of assessments
Once the Tribunal registers the appeal it will send a copy of the papers received to the Local Authority and give them a date by which they have to respond. Both the Local Authority and the parent or young person will also be asked to provide details of any witnesses they want to come to the appeal. They will also be told of the likely hearing date.
The Tribunal has buildings across the country. For Liverpool, historically this has meant that the hearings have been held in Manchester. Currently due to the impact of COVID19, the majority of hearings are virtual although a request can be made for a physical or part-physical hearing. The appeal will be heard by a judge and usually two Tribunal members who have been appointed because of their knowledge and experience of children and young people with special educational needs or disabilities.
After the appeal the young person or parent should receive a copy of the Tribunal’s decision and reasons by post within 10 working days of the hearing. This will also include details of how to appeal to the Upper Tribunal if it was felt that the decision was wrong in law.
Legal Aid can fund legal advice and assistance in preparing an appeal to the Tribunal. It cannot fund representation at the Tribunal hearing.
To qualify for legal aid a person must pass a financial means assessment. The case must also have a reasonable chance of succeeding and pass a merits test for this.
If a person is eligible the Civic Legal Advice Service will provide advice, normally by telephone, online or by post unless the specialist advice provider assesses them to be unsuitable to receive advice in this way.
Young people under 18 and those who have been assessed as needing face-to-face advice in the previous 12 months with a further linked problem can seek advice directly from a face to face provider.
For further information and support on appealing to the Tribunal please contact the SEND Information, Advice and Support Service (formerly Parent Partnership Service) on 0151 225 3535.
HMCTS have published a video on YouTube providing advice and guidance for those wishing to appeal to the Tribunal Service.
A DVD of this video can be requested from the Tribunal by writing to:
First-tier Tribunal (Special Educational Needs and Disability)
What is the outcome of the National Trial?
The National Trial commenced from April 2018 to August 2021 testing 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, which can be seen here.
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 Education, Health and Care (EHC) plans.
Previously, you have only been able to appeal the educational aspects of EHC plans. The continuation of the extended powers given to the SEND Tribunal, maintains your right 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.
To find out more, read our Advice page about the Single Route of Redress - SEND Tribunal Extended Powers