Parents, carers and young people can appeal to the SEND tribunal about decisions that the local authority has made about your child or young person or young adult up to 25 years old. You can also appeal to the SEND tribunal about disability discrimination about schools, educational establishments and local authorities.
The tribunal can now make non-binding recommendations about the health and social care aspects of education, health and care plans (EHCP), as well as the education aspects. This gives you the opportunity to raise all your concerns about an education, health and care plan in one place.
It is only possible for the tribunal to consider the health and/or social care aspects of the education, health and care plan if you are already making an appeal in relation to the education aspects of the plan, and the education aspect must remain live throughout the appeal.
Standard appeals to the SEND tribunal
The kind of decisions you can appeal against include refusal to carry out a statutory assessment, and refusal to make an education, health and care plan.
In regard to schools, you can make a claim of disability discrimination under the Equality Act 2010 if your child is disabled within the meaning of the Act (not all children with special educational needs are disabled) and you feel they have been discriminated against.
Appeals you might make
You might ask the tribunal to:
- assess your child's educational, health and care (EHC) needs
- reassess their special educational needs
- create an educational, health and care plan (EHCP)
- change the educational, health and care plan
- reject or stop the educational, health and care plan
For someone under 18 and in custody, you can appeal if:
- the council doesn't make an educational, health and care needs assessment
- the council doesn't think an educational, health and care plan is needed after an assessment
- the school or other institution that they'll attend once they're released isn't suitable
You can also appeal to the tribunal if a school or local authority has discriminated against your child or someone else because of your child's disability, such as if they haven't provided support.
You can find more about appealing to the SEND tribunal at GOV.UK.
Mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal.
Before you can register an appeal with the tribunal, you must contact a mediation adviser within two months of the local authority decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the local authority.
If you want to appeal only about the school or other institution named in the educational, health and care plan you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an educational, health and care plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.
If mediation resolves the educational issues, you will not be able to appeal to the tribunal on any health and/or social care aspects of the educational, health and care plan. This does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.
Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate. This will be necessary if you are still unhappy and wish to progress to an appeal with the tribunal. An appeal to the tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is later.
The SEND Tribunal national trial
From April 2018 to 31 August 2021, the Special Educational Needs and Disability Tribunal (the 'SEND Tribunal') ran a trial period whereby its powers were extended beyond disputes in relation to education, to include health and social care issues too. This is referred to as the 'national trial'.
The national trial was ended in 2021, and the Department for Education confirmed that the extended powers given by the trial would continue. This includes giving you the opportunity to request recommendations about the health and social care content of the plan at the same time as the educational content. This will mean the tribunal will take a more holistic, person-centred view of the needs of the child or young person.
You can request the tribunal makes recommendations about the health and/or social care aspects of education, health and care plans as part of an appeal relating to:
- the description of the child or young person’s special educational needs in an education, health and care plan
- the special educational provision specified in an education, health and care plan
- the school or other educational institution named in an education, health and care plan
- a decision by the local authority not to issue an education, health and care plan
- a decision by the local authority not to carry out a re-assessment for a child or young person who has an education, health and care plan
- a decision by the local authority not to amend an education, health and care plan following a review or re-assessment
- a decision by the local authority to cease to maintain an education, health and care plan
This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures. You should seek advice about the different routes available, including from your local information advice and support service.
If the SEND tribunal makes a recommendation about health or social care elements of a plan, the local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman or Parliamentary and Health Service Ombudsman or seek to have the decision judicially reviewed.
Local authority SEND teams and tribunals
The trial placed responsibility on local authority SEND teams to:
- inform parents and young people of their new rights through decision letters and the local offer
- provide evidence to the tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the tribunal, seeking permission to bring additional witnesses to the hearing as necessary
- if a recommendation has been made, send the health and social care response letters to the evaluators
It also places responsibility on health and social care commissioners to:
- respond to any request for information and evidence within the timeframe set by the tribunal
- send a witness to attend the hearing as required
- respond to the parent or young person and the local authority SEND team within five weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation
Request a health or social care recommendation
If you wish to appeal against a local authority decision on any of the grounds above and want to request that the tribunal considers your concerns about the health and/or social care aspects of the education, health and care plan, you should follow the normal process for bringing an appeal to the tribunal and tick the box on the form relating to a health and / or social care appeal.