When a request for an EHC needs assessment is sent to the Local Authority (LA), the LA must notify the parent or to the young person within 6 weeks their decision wether or not they will carry out an EHC needs assessment. If the LA decides not to carry out an EHC needs assessment, their letter must provide information about:
the reason for their refusal;
your right to appeal that decision;
the time limits for doing so;
information about mediation;
the availability of disagrement resolution services (mediation) and their contact details
information and advice about matters relating to the special educational needs of children and young people
Note: You will not have a right of appeal for a Refusal to Assess decision if the Local Authority has carried out an EHC needs assessment in the past six months but has decided not to issue an EHC Plan. If the LA has not carried out an EHC needs assessment within this period, then you can appeal.
The LA letter will tell you this. This means that you will have to wait for 12 months from date when the LA agreed to carry out an assessment.
You must be the child's parent (or have parental responsibility) or a young person aged 16 or over to be able to appeal.
if you are aged 16 or over, the young person must complete the appeal form themselves if they are able to do so or with help from their parent/carer.
The young person can add notes on the form that they would like their parent/carer to act as their supporter for the appeal.
The deadline by which you must register your appeal with the Tribunal is 2 calendar months from the date of the LA's letter that informs you of their decision not to carry out an EHC needs assessment.
30 days from the date of mediation certifcate, whichever is later.
You need to obtain a mediation certificate to be able to appeal.
The Local Authority have a duty to provide SEN Mediation and Disagreement Resolution services. This is commonly known as Mediation.
Mediation is a process in which the people involved in a dispute work together with the help of a mediator to reach an acceptable solution.
The mediator is a specially trained independent facilitator, with knowledge of the legislation relating to SEN, health, and social care, who does not take sides and does not give advice or judgement but manages discussions fairly and confidentially to help people communicate and explore options and to help to clarify the nature of the disagreement in preparation for the mediation session. The child's or young person's needs and interests are always kept at the heart of these discussions.
The law says you have to consider whether to enter mediation before you can register your appeal so at the very least you must contact a mediation adviser, for whom contact details would be provided in the LA's letter. Mediation services are free of charge and in Westminster these are provided by Global Mediation.
Global Mediation Ltd (SEN)
8 Lytton Road
Phone: 0800 064 4488 / 020 8441 1355
The Mediation Process
Parents and young people who wish to make an appeal to the Tribunal may do so providing they have contacted a mediation adviser and discussed whether mediation might be the suitable way to resolve the disagreement.
Parents and young people must receive a certificate from the mediation adviser to register their appeal to the Tribunal. If the parent or young person decides not to go to mediation following contact with the mediation adviser, then they will be issued a certificate within three working days to confirm the parent/young person decision and the information that has been provided.
Nevertheless, if you have never had a proper talk with the LA about why they have refused assessment, mediation may help to clarify things. You might also consider it to give yourself more time to appeal as if you enter mediation, your deadline for registering an appeal changes: your deadline then becomes one month from the date a certificate is issued after the mediation session, and that session must be arranged within 30 days of the LA being informed that you want to mediate.
The reasons parents and young people can go through mediation are:
1) the local authority's decision:
not to carry out an EHC needs assessment
not to isuue an EHC plan
not to amend the EHC plan except for Section I where you dont need a mediation certiccate if you are appealing about the eduaction setting only
to cease to maintain an EHC plan
If the parent or young person proceeds with mediation then the local authority have a duty to make sure the mediation session takes place within 30 days of the mediation adviser informing them of the parent or young person’s decision. The local authority or the mediator will then take responsibility for organising the mediation session.
The parent or young person must be accompanied by a friend, adviser or advocate in the mediation sessions. The child might in cases also be able to accompany their parent/s to the mediation session upon request.
The Special Educational Needs and Disability Tribunal is an independent national tribunal which hears parents’ and young people’s appeals against LA decisions about the special educational needs of children and young people. It also hears claims of disability discrimination against schools.
The Tribunal must ‘have regard’ to the SEN and Disability Code of Practice (also known as 'the Code' or 'CoP') which advises schools and LAs on identifying and making provision for children with SEN.
You can appeal against the LA's:
refusal to carry out an EHC needs assessment (and refusal to reassess);
refusal to amend an EHC plan following a review or reassessment;
decision to cease to maintain an EHC plan;
about the following contents of an EHC plan:
1) The child or young person’s special educational needs (Section B of the plan);
2) The special educational provision specified in the EHC plan (Section F of the plan);
3) The school or other setting named in the EHC plan or the type of school or setting
(Section I of the plan);
4) If no school or other setting is named in the EHC plan
Due to changes to the Tribunal process for cases registered after 1st August 2016 all 'Refusal to Assess' appeals against the Local Authority's decision not to carry out an EHC needs assessment will now be considered on the papers without the need for the parties to attend a hearing. However, if you would like an oral hearing you can still make a request for this in writing, explaining your reasons for wanting the hearing, and this will be considered by a Registrar or Judge.
This means that the timetible for the appeals are shorter (12 weeks, instead of the previous 20 weeks timetible)
The timetable for your appeal will be set out in the Tribunal's registration letter and directions. You should read these very carefully and note the important dates as it is still possible that some appeals might be listed on a slightly different timetable depending on the availability of Judges and Panel members.
In cases where the matter is urgent, or if you would like your case to be listed in less than 12 weeks, you can ask for that to happen. The Tribunal has introduced an 'Earlier Hearing Date' form which you could use to ask for this. If you do want to ask for a shorter timetable it will be helpful to let the Local Authority know that you are doing so, and try to see if they will also agree to the appeal being dealt with more quickly.
Depending on your circumstances, you might be eligible for legal aid. The type of help available is known as “legal help”. A parent or young person with a right of appeal eligible for this will receive support from a solicitor to prepare the case and may also be able to obtain funding for any additional evidence needed such as reports from independent experts. It will not include advocacy support at a hearing. Click here to see if you are eligible for Legal Aid to use the Civil Legal Aid checker.
Preparing for your appeal
The Special Educational Needs and Disability Tribunal (SENDIST) will base its decision on the evidence that is presented to it. Getting good evidence is therefore essential for the success of your case.
It is important to work co-operatively with the professionals involved in your child's or the young person's education, health and care who can provide written and oral evidence to the SENDIST to make sure that relevant information is documented. Evidence that the SENDIST will specifically look at are the ones related to any progress (or lack of) of the child/young person at the setting (such as the strategies put in place in the school setting to target SEN needs, or the impact of these strategies on the child or young person).
Disability Discrimination Act (DDA)
The Tribunal also hears claims about disability discrimination (DDA) against the responsible educational settings and this can be carried out simultaneously to any SEND appeal.
Appeals about disability discrimination will however continue to have longer timetables.
Important note: Please remember to keep copies of all your paperwork (letters, reports etc.) as these may be needed to support your claim.
For more detailed information about SEND Tribunal, this link will take you to the IPSEA SEND Tribunal information page
Contact First-tier Tribunal (Special Educational Needs and Disability)
First-tier Tribunal (Special Educational Needs and Disability)
1st Floor, Darlington Magistrates Court
Telephone 01325 289 350
Fax 0870 739 4017