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Appealing a decision

What do you do if you need to take it to tribunal?

There are few things more frustrating and frightening than a school or local authority that refuses to provide the support you’re sure your child or young person needs. Sometimes schools and local authorities are helpful, but sometimes you have to appeal a decision made by the local authority. That means going to the Special Educational Needs and Disability Tribunal.

I'm not happy with a decision

You will have applied to your local authority for something you feel is in your child or young person's best interests – an Education, Health and Care Plan (EHCP), say, or for the EHCP to specify placement at a particular school. If the local authority refuses, they have to include the following information:

  • That you have the right to appeal.
  • Information about mediation, including contact details for an independent mediator (something they should also include in their local offer.) The mediator must be someone who’s independent of both the local authority and any health commissioning groups.

If you do decide to appeal, you have the following deadlines:

  • If your appeal is going straight to tribunal: within two months of the date your local authority sent you the final plan.
  • If you’re trying mediation first (see below): within one month of either the date that the mediation information was given or the date a certificate was issued following mediation.

Mediation

Mediation means involving an independent professional whose job it is to negotiate between two parties in the hopes of getting an agreement. The mediator is obliged to be neutral and can’t give advice to either side, so you may want to take legal advice at this stage; there are some places to try at the bottom of this article. You can find advice for effective mediation in the SEND Code of Practice, paragraph 11.38, but the basic principle is that the mediator is a facilitator whose aim is to get both sides to agree without having to go to tribunal.

 

Do I have to use mediation?

Yes, it is compulsory to have a mediation certificate before you proceed to tribunal. You should first contact an independent mediator to discuss your options for mediation. You don’t have to attend a mediation session with representatives from the local authority if you don’t think the issue will be resolved but you do need to request a certificate to show you have considered mediation.

Mediation may or may not work, but there are some advantages to trying it:
 
  • It’s often quicker.
  • It costs less than going to tribunal.
  • Because it’s less formal and less final, it can be less stressful.
  • It puts on record that you tried your best to avoid going to tribunal. Courts and tribunals generally don’t like cases that take up their time unnecessarily, so mediation can show that there really wasn’t any alternative.

 

If mediation doesn’t work, then tribunal is the next step.
 

The appeal

You make your appeal to the First-Tier Health Education & Social Care Chamber, Special Educational Needs and Disability (tribunal).

The subjects you can appeal about are:

  • Your local authority’s decision not to carry out an EHCP assessment or re-assessment.
  • Your local authority’s decision, following an assessment, not to issue an EHCP.
  • The content of an EHCP. This includes:
    • The description of your child or young person's special needs.
    • The special educational provision the plan specifies (for instance, if you feel your child needs a place in a special school but the local authority does not agree).
    • No placement has been named.
  • Your local authority’s decision not to amend an EHCP or Statement following a review or re-assessment.
  • Your local authority’s decision to end an EHCP or Statement.

Who can help us?

Tribunals can be expensive and nerve-wracking, so you may want to seek advice from people with experience. Here are some good places to start:

The Ministry of Justice

The Ministry of Justice provides some useful information about appeals. 

If you have a specific question, you can either:

The tribunal staff at the Ministry of Justice aren’t allowed to offer you legal advice on your case, but what they can do is help you on the administrative side.

Charities

If you need advice on how to handle your case, there are various charities:

  • The first port of call should be your local Information, Advice and Support Services Network (previously called Parent Partnership Network). The IAS Service is funded by the Department for Education and is there to give advice and support to parents and carers of children and young people with special educational needs. You can contact them either by:

If the IAS Service can’t help you, some other places where you can get free advice include:

  • IPSEA (Independent Parental Special Education Advice): This is a national charity offering free legally based advice to families of children with special educational needs. All advice is given by trained volunteers.
  • SOS! SEN: They offer a free, independent and confidential telephone helpline for parents and others looking for information and advice on special educational needs.

 

Legal Aid

Legal Aid can offer public funding for some people on benefits or a low income seeking lawyers to represent them. To find out whether you’re eligible, the place to start is the GOV.UK website.

 

Your own wellbeing

Tribunal is a demanding process that can leave you feeling exhausted (and sometimes much poorer than when you started) even if you win. If you have to go down that road, try to make sure you get some support for yourself, whether it’s friends and family or talking to a charity like Samaritans or Family Lives – someone who may not be able to offer you legal advice, but who can offer you sympathy if you need to let off some steam.

If you could do with some support or advice from people going through the same thing as you, join our online forum, Talk about Autism.

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