What is the SEND Tribunal?
SEND Tribunal is the commonly used term for the First-tier Tribunal (Special Educational Needs and Disability). It is an independent national tribunal, hearing appeals by parents and young people against Local Authority (LA) decisions about special educational and disability.
Who can appeal?
To be able to appeal, you must be a parent or a young person over the age of 16. In education law ‘parent’ means you are either a birth parent, have acquired parental responsibility or have care of the child (e.g. a foster parent or grandparent with whom the child lives).
If the decision concerns a child, the parent has the right of appeal. If the decision concerns a young person (16-25), then it is the young person who has the right of appeal. They may ask a parent or other person to help them.
There are no fees for parents or young people to pay to the Tribunal.
Mediation is a disagreement resolution process, where parties meet to discuss the matters under dispute with the help of a trained and independent mediator. The mediation may also be attended by other relevant parties, such as representatives from the child or young person’s school or college. It is free of charge.
Mediation meetings are arranged at a neutral venue and parties are expected to comply with any agreement reached through mediation. Mediation meetings are confidential and without prejudice to the Tribunal process. If the dispute is not resolved and an appeal to the Tribunal follows, the Tribunal will disregard any offers or comments made during mediation.
Mediation is not compulsory. However, in most instances, before bringing an appeal to the SEND Tribunal, you must first consider mediation. In practice, this means contacting the mediation service for mediation advice. If you have never had a proper discussion with the LA about why they have reached their decision, mediation may help.
If you decide not to proceed with mediation, the mediation service will provide you with a Mediation Certificate to prove that you have considered it. The exception is if you are only appealing about Section I of an EHC Plan - the school or other educational placement named, or where no school or other educational placement is named.
In RBWM, mediation is provided by Global Mediation https://www.globalmediation.co.uk/service/special-educational-needs-disability/
When can you appeal?
You must register your appeal with the SEND Tribunal within 2 months from the date of your decision letter from the Local Authority or 1 month from the date you obtain a mediation certificate, whichever is the later.
Educational needs and provision
You can appeal against the contents of Section B (special educational needs), Section F (special educational provision), or Section I (the school or other setting to be attended) of an EHC plan.
The contents appeal can be about any of:
The child’s special educational needs set out in Section B;
The special educational provision to meet those needs set out in Section F;
The school or other setting in Section I; and/or
If no school or other setting is named in Section I, that fact.
All of Sections B, F and I can be appealed. It is normally not advisable just to appeal Section I, as the SEND Tribunal will be considering whether the placement is able to meet the needs and provision set out in Sections B and F.
Health and social care
Health care provision and social care provision which educates or trains a child or young person is capable of being special educational provision and, as such, should be specified in Section F of an EHC Plan (see the section on what an EHC plan contains for more information). Therefore, you might appeal where this provision has been specified in the wrong part of the EHC plan and you are asking for it to be specified in Sections B or F instead.
The SEND Tribunal’s powers now extend to the health and social care sections of EHC plans. From April 2018, parents and young people who are dissatisfied with the sections of the plan relating to health and social care, and who have not been able to resolve their disagreement locally, have been able to take these issues to the SEND Tribunal. They must appeal about the education parts of the EHC plan as well (Sections B, F and/or I) in order to do so.
The SEND Tribunal only has the power to make ‘non-binding recommendations’ on health and social care (unlike the binding decisions they make in relation to special educational provision). However, the expectation is that the recommendations will generally be followed. Appeals involving health and/or social care are referred to as “extended appeals”.
What the SEND Tribunal does
The SEND Tribunal is governed by the law and makes decisions based on the evidence put before it. It has to follow the interpretation of the law by higher courts in judgments about previous SEN disputes. This is referred to as Case Law.
The SEND Tribunal looks at the evidence put before it and decides whether the LA decision has followed the law and the SEND Code of Practice. It will look in detail at the decision made by the LA and make its Order based on what is right for the child or young person at the time of the hearing.
The SEND Tribunal produces a free booklet, How to Appeal, and other guidance forms which can all be accessed on their website. The SEND Tribunal has also produced a set of videos which explain more about what appealing to the SEND Tribunal is like – these are available on YouTube or you can request a DVD from the SEND Tribunal.
The SEND Tribunal has the power to order LAs to carry out EHC Needs Assessments, issue EHC Plans, and amend existing EHC Plans. LAs must comply with orders made by the SEND Tribunal.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC Plan, this is non-binding. However, there is an expectation that Tribunal recommendations will be followed.
The SEND Tribunal also hears claims of disability discrimination against schools. Different timescales apply to disability discrimination appeals and you do not need to seek mediation advice if it is a disability discrimination claim. Disability discrimination | (IPSEA) Independent Provider of Special Education Advice