Before the Appeal

Read 'How the system should work'  and 'How to argue effectively' sections first, for background information relevant to this type of appeal.

 

In addition, if you have not already done so, read  Appeals for vital information about the appeal process.

 

Can I appeal?

The Tribunal panel will consider whether:  

• your child (or young person) has or may have special educational needs and
• may need an EHC plan

Should I appeal?

This type of appeal will be decided on the paperwork alone.  The appeal is still submitted, registered and the appeal process is the same as if the appeal were proceeding to the final hearing of your appeal.  However, unless you specifically request to have an 'oral' hearing, the paperwork and decided by a Tribunal panel which means you and any witnesses will not need to attend a hearing.

 

Timing is important

If your child is approaching transition (e.g. from nursery to primary school, from primary to secondary school or from school to college) the Local Authority should have considered your child's needs in the next academic year.  This should be emphasised in your appeal submission.

 

Your case will be much stronger if the pre-school, school or college your child or young person attends supports the case.  If your child is 16-25 the right of appeal transfers to the young person, except in certain circumstances where it is agreed that your child does not have the capacity to bring an appeal in their own name.  The young person can still ask their parent to help them but it remains their appeal and the Tribunal will expect to see how they have been involved in the process.

 

Key points

As this type of appeal is normally decided on the paperwork, it is even more important to prepare your evidence carefully as there won't be an opportunity to provide further information at the hearing.  See here for information about evidence.

 

Most schools and colleges - maintained schools, academies, Free Schools and FE colleges - have an element of funding for SEN included as part of their budget and the Local Authority will expect to see how this (usually £6,000)  has been spent on meeting the needs of the child or young person prior to a request being made for an EHC assessment.  This is not, however, a legal requirement.

 

For an example of a Refusal to Assess scenario where the Local Authority has taken the view that the child or young person's needs can be met by the school's own resources, please see here.  For an example of a partially completed appeal form in this type of situation, see here.

 

The Law

Section 36, Children and Families Act 2014, Regulations 3, 4 and 5 of the SEND Regulations 2014.

 

The appeal will be judged on the following guidelines.

 

The SEN Code of Practice (2015), Chapter 9, provides the following guidance for schools 

 

9.14:  'In considering whether an EHC needs assessment is necessary, the local Authority should consider whether there is evidence that despite the early years provider, school or post-16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person, the child or young person has not made expected progress.  To inform their decision the local Authority will need to take into account a wide range of evidence, and should pay particular attention to:

 

• evidence of the child or young person's academic attainment (or developmental milestones in younger children) and rate of progress
• information about the nature, extent and context of the child or young person's SEN
• evidence of the action already being taken by the early years provider, school or post-16 institution to meet the child or young person's SEN
• evidence that where progress has been made, it has only been as the result of much additional intervention and support over and above that which is usually provided
• evidence of the child or young person's physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies, and
• where a young person is aged over 18, the local authority must consider whether the young person requires additional time, in comparison to the majority of others of the same age who do not have special educational needs, to complete their education or training.  Remaining in formal education or training should help young people to achieve education and training outcomes, building on what they have learned before and preparing them for adult life'

 

When/What you can appeal