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SEND Tribunal Appeals


Who can appeal to the Tribunal?

  • Parents of children (0 to the end of compulsory school age) and
  • Young people over compulsory school age (until they reach 25) where they have the mental capacity to make the decision or their representative/ parents where they lack capacity.

What can be appealed to the Tribunal?

The SEND Code of Practice says that parents and young people can appeal to the Tribunal about:

  • a decision by a local authority not to carry out an EHC needs assessment or re-assessment
  • a decision by a local authority that it is not necessary to issue an EHC plan following an assessment
  • the description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified
  • an amendment to these elements of the EHC plan
  • a decision by a local authority not to amend an EHC plan following a review or re-assessment
  • a decision by a local authority to cease to maintain an EHC plan (11.45)

You can find out more about appeals to the Tribunal in the SEND Code of Practice sections 11.39 to 11.55.

View the SEND code of practice: 0 to 25 years


What are the time limits for appealing?

If you wish to register an appeal with the First Tier Tribunal (SEN and disability) you first have to consider whether to enter mediation and obtain a certificate saying you have considered it (unless your appeal is only about the name of the school/college of type of school/college named in the plan). Please read the Disagreement Resolution and Mediation Factsheet for more information on mediation.

An appeal has to be received by the Tribunal;

  • within 2 months after the decision letter was sent by the local authority (LA) or
  • 1 month from the date of the mediation certificate, whichever is the later.

The time limit for claims may be extended in exceptional circumstances but only if the Tribunal considers it appropriate to do so. Parents and young people should always aim to lodge their appeal within the time limits.


Legal Aid

You may be eligible for Legal Help, this allows a solicitor’s firm to advise and assist you with your case but Legal Help does not extend to representation at the Tribunal hearing. Before you can be granted legal aid you must pass a financial means assessment. You can check your eligibility online or contact Civil Legal Advice on 0345 345 4345.

Check if you can get legal aid


What’s involved?

You must complete an appeal form providing your reasons for appealing. Please ensure you complete the correct form, these can be found on the First-tier Tribunal (Special Educational Needs and Disability) website;

Visit the Tribunal website

Appeal forms and supporting documents can now be submitted electronically.

Email your completed forms

Along with your appeal form it is useful to enclose any evidence or information (photocopies) 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 Tribunals guide on How to Appeal Against a SEN decision.

Read the guide


Burden of proof

Depending on the issue there is an obligation on either yourself or the local authority to prove your point. The burden of proof at the SEND Tribunal is on the balance of probabilities. Please see who has the burden of proof for each issue below.

A decision by a local authority not to carry out an EHC needs assessment or re-assessment

Parents/Young Persons burden to prove they have met the legal test for assessment contained in s.36(8) of the Children and Families Act 2014. There are additional considerations under this law for children under compulsory school age (s.20(3)) and young people over 18 (s.36(10))

A decision by a local authority that it is not necessary to issue an EHC plan following an assessment

Parents/Young Persons burden to prove they have met the legal test for assessment contained in s.37(1) of the Children and Families Act 2014.

The description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified

The burden of proof is on the Parents/Young Person.

The school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified

  • If the placement being requested is a type contained in s.38(3) Children and Families Act 2014 then the burden of proof is on the local authority to prove one of the exceptions in s.39(4) Children and Families Act 2014 which would dislodge the parents preference.
  • If the placement requested is not contained in the s.38(3) group then the burden would be on parents/young person to prove that their choice of placement is compatible with the provision of efficient instruction and training and would avoid unreasonable public expenditure.

The types of setting included under s.38(3) Children and Families Act 2014 include;

  • Maintained school
  • Maintained nursery school
  • Academy
  • Institution within the further education sector in England
  • Non-maintained special school
  • An institution approved by the Secretary of State under section 41.

A decision by a local authority to cease to maintain an EHC plan

This would be the local authority’s burden to prove they have met the legal test contained in s.45(1) of the Children and Families Act 2014. For young people over 18 there are also additional requirements at s.45(3) of the Act.

See the Children and Families Act 2014


What happens after I send my appeal to the Tribunal?

Your appeal will be registered within 10 working days of receipt and you will be informed of the date of the final hearing. All SEN appeals will now have a 12 week timetable (instead of the previous 20 week timetable). Some appeals may be listed on a slightly different timetable depending on the availability of Judges and Panel members.

When your appeal is registered the Tribunal will issue;

  • Case directions – these set dates by which you must take action. Please keep a note of these important deadlines as you can be barred from the hearing for failing to comply;
  • An attendance form – you will be given a date by which you must inform the Tribunal and the local authority about the witnesses (if any) along with any others that you want to bring to the hearing. If a witness refuses to attend the hearing you can ask the Tribunal to issue a witness summons which requires them to attend;
  • A case management questionnaire.

The local authority will be sent a copy of the appeal when it has been registered, they must respond within 30 days of their appeal notice being sent, sending a copy of their response and any other documents to yourself as well as the Tribunal.

The local authority has the option to;

  • 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 local authority to change the EHC plan in the way you have agreed, by making a consent order.

What happens at the hearing?

You will receive a full copy of the appeal bundle (copies of the documents yourself and the local authority want to use to support your cases) along with the time and venue of the hearing. Hearings are held in Tribunal Buildings/Family Court Rooms as close to your home as possible (the Tribunal aims for venues to be no more than 1½ hours travel in each direction).

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. Hearings usually start at 10am (although some may start at 2pm) and the length of the hearing will depend on the issues being heard and number of witnesses. You do not have to attend the hearing but it is helpful to do so.

During the hearing;

  • The Tribunal Judge will provide an introduction, explain the procedures and list the issues to be considered;
  • The panel will consider the appeal on an issue by issue basis;
  • You and the local authority will be invited to give your views and present your evidence on each issue;
  • You will have the opportunity to ask questions of the local authority, witnesses and also have the chance to add anything additional you feel is important and has not been previously mentioned. The local authority will be given the same opportunity;
  • You may be invited to make a brief closing comment to summarise your position.

After the hearing

The Tribunal will make its decision following the hearing, parents are notified in writing by post and generally this is received within approximately 10 working days. This decision letter must summarise their reasons for the decision.

If the Tribunal issue an order, once received the local authority have to comply with time limits, within which they must carry out the Tribunal order. These are;

  • Where the Tribunal requires the local authority to undertake an assessment/reassessment (notification starts the process) – within 2 weeks of the order being made;
  • Where the local authority has been ordered to make and maintain an EHC plan they must issue the finalised EHC plan within 14 weeks of the order being made;
  • Where the local authority has been ordered to reconsider a decision, they shall do so within 2 weeks of the order being made;
  • Where the local authority has been ordered to amend the EHC plan the local authority must issue the amended EHC plan within 5 weeks of the order being made;
  • Where the local authority has been ordered to substitute the name of a school/college/other institution, the local authority must issue the amended EHC plan within 2 weeks;
  • Where the tribunal has ordered that an EHC plan continue to be maintained by the local authority, the local authority shall continue to maintain the EHC plan with immediate effect;
  • Where the Tribunal dismisses an appeal against a decision to cease an EHC plan the local authority must cease to maintain the EHC plan immediately.

Where can I get more information, advice or support?

Rotherham SENDIASS can explain the appeal process to you and provide impartial information, advice and support.

The Local Offer, published by the local authority, includes information about the arrangements for resolving disagreements and for mediation. It also tells you about your right to appeal to the Tribunal.

See the Rotherham SEND Local Offer

You can speak to a member of the SEN Assessment Team about your concerns. Rotherham SENDIASS can offer advice and support with this discussion.

Contact the Special Educational Needs Assessment Team

Rotherham SENDIASS can give you:

  • information about complaints procedures, disagreement resolution and mediation
  • advice about what to do if you are unhappy with the support the school or college is providing
  • details of other organisations, support groups and information services that might help
  • information and advice about your rights to appeal to the First Tier Tribunal (SEN and Disability)
  • impartial advice and support through the process of making a complaint, disagreement resolution, mediation or appeal

Contact Rotherham SENDIASS

National organisations that can also provide information and advice on SEND include:

Contact a Family

Independent Parental Special Education Advice

If you would like to pursue an SEND Appeal with regards to the EHC process, you will find the documents and more information on Gov.UK.

Find out more


© 2017 Rotherham SENDIASS

Unless otherwise stated.