Frequently Asked Questions

SEN Action is dedicated to providing parents with children with special educational needs and young people with SEN with information on the world of SEN and the statutory processes. This includes information on appeals to the Special Educational Needs & Disability Tribunal (SEN Tribunal/ SENDIST). 

The FAQs below are designed to provide you with an overview on particular issues and areas relating to SEN. They are updated on a regular basis and therefore, it is important that you check them regularly to ensure that your knowledge remains up-to-date. 

Please note that whilst the FAQs are intended to be as helpful as possible, they are by their nature general and will not necessarily be specific to your particular circumstances. They also do not constitute formal advice or legal advice. Terms & Conditions apply.  

If you require advice relating to your particular circumstances then please feel free to contact SEN Action on the details above. You can also register for a free consultation with our Specialist SEN Advocate. For more information please click the link on the right.. 

We hope you find our FAQs helpful. 

 

Feedback

If you have a question that is not addressed by any of the FAQs then please let SEN Action know by asking our Specialist Advocate, Sean a question. You can do this by clicking on the ASK SEAN button on the right of the page. We will get back to you with some information and if appropriate will update our FAQs on the website. 

You can also call or e-mail us with your question. 

 

Our FAQs

 

Education, Health & Care Needs Assessments (EHC Assessments)


Is your child struggling in school? Has additional support been provided but they are still struggling? If so, they may have special educational needs. If your child finds it harder to learn than most of their peers and continues to struggle even with extra support, then they may have special educational needs

The question needs to be addressed in two stages

a.    Does my child have a learning difficulty or disability?

Your child would be considered to have a learning difficulty or disability if he or she:

  • has a significantly greater difficulty in learning than the majority of others of the same age or 
  • has a disability which prevents or hinders him or her from making use of facilities generally provided for others of the same age in mainstream schools or mainstream post-16 settings

b.    Does my child require special educational provision

Special educational provision means educational or training provision that is additional to, or different from, that which is generally provided for others of the same age in mainstream schools, nurseries or post-16 institutions. 

There is no published list of what this educational or training provision would include. As a general rule however, if your child is receiving support at school action or school action plus (now referred to as ‘SEN support’) then he or she would be in receipt of special educational provision

When your child’s school identifies that he or she may have special educational needs, the class teacher, with the help from the Special Educational Needs Coordinator (SENCo), should provide SEN support. This was previously referred to as School Action or School Action Plus

The school should involve you in the discussion(s) about how much support your child needs and what that support consists of. It could be that your child requires some support from a teaching assistant or small group intervention for literacy. Maybe the school will ask its educational psychologist (EP) to come in and assess/observe your child. The support that is put in place should be specific to your child and based upon his or her particular needs

Please note however that the amount of support a school can provide to your child will be limited by the amount of funding that it has available to support children with SEN.

This funding will vary, depending on which local authority (LA) the school belongs to.

If your child requires particular intervention that the school is not capable of providing or is unable to fund, then SEN support is unlikely to be sufficient to support your child effectively.

In this case, you or the school may feel that it is necessary for the local authority (LA) to assess your child’s special educational needs via what is called an Education, Health & Care (EHC) needs assessment. (previously called a ‘Statutory Assessment’).

If you think your child has special educational needs then speak to either the class teacher, the Special Educational Needs Co-ordinator (SENCO) or the Head Teacher to discuss these concerns. You can ask about any extra support that your child has been receiving and how the school supports children with special educational needs. This information should also be available in the school's SEN Policy and/or the school’s ‘local offer’

If you are not satisfied that the school is able to put in place the support that your child requires through its existing resources or perhaps you feel that your child requires a more specialist setting then you should request that your local authority (LA) carries out an Education, Health & Care (EHC) needs assessment of your child. 

If the school agrees with you then the application should be made by the Head Teacher or the SENCO

Then you may wish to appeal that decision to the Special Educational Needs & Disability Tribunal (SEND Tribunal/ SENDIST)

Have a look at our Tribunal FAQ’s for more information. 

The local authority (LA) will conduct an Eduction, Health & Care (EHC) Assessment if it thinks that your child may have special educational needs and that it may be necessary for those needs to be supported through an Education, Health and Care Plan (EHCP / EHC Plan). 

This decision is generally based on whether your child’s school is able to put in place the support that he/she needs from within its resources.

If the local authority (LA) decides to conduct an EHC Needs Assessment then your child’s educational, health care and social care needs will be assessed.

This is a multi-agency assessment that involves your child’s school, the educational psychology service and other agencies such as the NHS therapy services, health authority and social services

The main focus of the EHC Needs Assessment will be on your child’s educational needs. Only if there are previous health or social care issues or a reason to believe that they exist now would these areas form a significant part of the EHC Needs Assessment.

If the local authority (LA) has recently obtained professional reports about your child then it may not be necessary for any further assessment to be undertaken. The LA will be able to use the recent reports to form part of the EHC Needs Assessment

If however your child’s needs have changed since the recent assessments or the reports are not recent enough then the LA will have to obtain updated professional advice as part of the EHC Needs Assessment

Yes.

If the local authority (LA) has recently obtained professional reports about your child then it may not be necessary for any further assessment to be undertaken.

This does not mean however that the EHC Needs Assessment does not go ahead. The LA will be able to use the recent reports to form part of the EHC Needs Assessment.

If however your child’s needs have changed since the recent assessments or the reports are not recent enough then the LA will have to obtain updated professional advice as part of the EHC Needs Assessment

Only if there is a reason to, If your child has particular health needs for example or if due to the significance of his or her disability, Social Services are involved i.e. direct payments / respite provision. 

The role that a parent has in the Education, Health and Care Needs Assessment of their child depends on their child’s age and capacity

If the child is under 16 then the views of the parent are of paramount importance. The parent will have a central role in the EHC Needs Assessment and should be fully included by the local authority in the process. Whilst the views of the child are of course important, they are considered secondary to the views of the parent

If the child however is above 16, he or she is considered a young person and as such his or her views are central to the EHC Needs Assessment process. The role and views of the parents, whilst important, become secondary to those of the young person

If the young person however is not able to make decisions for themselves, due to their disability for example, then his or her parent would be able to make decisions for them. In this situation, every effort should be made to ensure that the views of the young person are obtained. 

This depends on the child’s age and capacity (ability to make decisions for themselves). 

If the child is under 16 then his or her parents’ views are of paramount importance. Whilst the views of the child are of course important they are considered secondary to the views of the parent

If the child however is 16 or over then he or she is considered a young person and as such his or her views are central to the EHC Needs Assessment process. The role and views of the parents, whilst important, become secondary to those of the young person

If the young person however is not able to make decisions for themselves, due to their disability for example, then his or her parent would be able to make decisions for them. In this situation, every effort should be made to ensure that the views of the young person are obtained. 

Once the local authority (LA) decides to conduct an Education, Health and Care Needs Assessment, the EHC Assessment must be completed within 10 weeks from that decision. (That means within 16 weeks of receiving the initial application).

Once the local authority (LA) has completed the Education, Health and Care Needs Assessment, it will decide whether to issue an Education, Health & Care Plan. (EHC Plan / EHCP). (See SEN Action’s EHC Plan FAQs below)

Then you may wish to appeal that decision to the Special Educational Needs & Disability Tribunal (SEND Tribunal/ SENDIST). 

Have a look at our Tribunal FAQ’s for more information. 



Education, Health & Care Plan (EHC Plan)


Introduced in September 2014 an Education, Health & Care Plan or EHCP is a legal document which sets out the education, health and social care needs your child has and the support that is necessary to meet those needs. They replace Statements of Special Educational Needs, which will be gradually phased out. 

The local authority (LA) has a legal obligation to arrange for the special educational provision that is outlined in the EHC Plan to be delivered.

The health service has a legal obligation to arrange the health care provision outlined in the EHC Plan.

The Education, Health and Care Assessment (EHC Assessment) of your child will reveal what education, health and social care provision he or she requires. 

A local authority (LA) will only issue an Education, Health & Care Plan (EHC Plan / EHCP) if it is necessary. 

Whether it is necessary or not will generally be determined by what special educational provision your child’s school is able to put in place. If the school does not have sufficient resources to provide some or all of the support that has been identified for your child then an Education, Health & Care Plan (EHC Plan / EHCP) should be issued by the local authority

For an EHC Plan to be issued it is necessary for special educational provision to have been identified for your child through the EHC Needs Assessment. An EHCP will not be issued if only health and/or social care provision has been identified. 

The current SEND Code of Practice gives guidance, but does not say exactly what the EHCP should look like. This means that every local authority (LA) may prepare the document differently, as long as they are separated into the following sections:

  • A - Views, interests and aspirations of the child or young person
  • B - The special educational needs
  • C - The health needs
  • D - Social care needs
  • E - Outcomes sought for the child
  • F - Special educational provision
  • G - Health care provision
  • H1 - Social care provision
  • H2 - Social care provision
  • I - School placement
  • J - Personal Budget
  • K - List of advice

If, following the Education, Health and Care Assessment (EHC Assessment) the local authority (LA) decides to issue an EHCP / EHC Plan it must do so within 4 weeks of that decision. 

That means within 20 weeks of the initial application for an EHC Needs Assessment an Education, Health and Care Plan (EHCP/ EHC Plan) should be issued if the local authority considers it necessary. 

Then you may wish to appeal that decision to the Special Educational Needs & Disability Tribunal (SEND Tribunal/ SENDIST). 

Have a look at our Tribunal FAQ’s for more information.

Every year the Education, Health and Care Plan (EHCP/ EHC Plan) must be reviewed by the local authority (LA). This is called an Annual Review and it should involve the relevant professionals who have been working with the child/ young person. 

Whether the EHCP / EHC Plan is amended or not depends on what is discussed at the Annual Review about the child or young person’s needs, progress and response to the support that is in place.

Following the Annual Review, the local authority (LA) will decide whether to make any changes to the EHCP / EHC Plan. Changes could be made to any section of the plan, including the educational setting the child or young person attends.

If the local authority (LA) refuses to amend the EHCP/ EHC Plan following the Annual Review or you do not agree with the changes that have been made then an appeal can lodged with the Special Educational Needs & Disability Tribunal (SEND Tribunal/ SENDIST). 

Have a look at our Tribunal FAQ’s for more information.



Statements of SEN


A Statement of Special Educational Needs (Statement of SEN) is a legal document that outlines a child's special educational needs, provision and the school that he or she should attend. A Statement of SEN also identifies the non-educational needs and non-educational provision that the child has. 

It has the following parts:

  • Part 1 – Details of the family and child & appendices 
  • Part 2 – Child’s special educational needs
  • Part 3 – Child’s special educational provision
  • Part 4 – The school identified for the child
  • Part 5 – The child’s non-educational needs
  • Part 6 – The child’s non-educational provision

No.

Statements of Special Educational Needs (Statements of SEN) are no longer issued. An Educational, Health and Care Plan (EHCP / EHC Plan) would be issued instead.

(See SEN Action's EHCP/ EHC Plan FAQs for more information). 

Yes. Your child’s Statement of SEN can be converted into an Eductiona, Health and Care Plan (EHCP / EHC Plan) following what is called a Transfer Review

This is the process in which your child’s Statement of Special Educational Needs (Statement of SEN) is converted into an Education, Health and Care Plan (EHCP / EHC Plan). As part of this process the local authority (LA) will essentially carry out an Education, Health and Care Needs Assessment (EHC Assessment) and will consider the up-to-date information about the child/ young person. If necessary further professional assessments will be arranged. 

The views of the parent/ child and young person form a central part of the Transfer Review. You have a right to provide your views about the transfer process and the contents of any Education, Health and Care Plan (EHCP/ EHC Plan) that might follow. 

No. 

Whilst it is likely that the Statement of Special Educational Needs (Statement of SEN) will more than likely be converted into an Educational, Health and Care Plan (EHCP / EHC Plan) it is not guaranteed. Your local authority can decide, following the Transfer Review, that an EHCP is not necessary. 

There must be a good reason not to convert a Statement of SEN into an EHC Plan

The Statement of Special Educational Needs (Statement of SEN) remains in place until the conclusion of the Transfer Review

If the local authority (LA) decides to issue an Education, Health and Care Plan then the Statement of SEN ceases and is no longer valid. 

Equally, if the local authority decides that it is not necessary to issue an EHCP/ EHC Plan following a Transfer Review then it follows that the local authority also considers the Statement of SEN to be no longer necessary. Although the local authority would have to formally notify you that the Statement of SEN is being ceased. 

Then you may wish to appeal that decision to the Special Educational Needs & Disability Tribunal (SEND Tribunal/ SENDIST). 

Have a look at our Tribunal FAQ’s for more information. 

Education, Health and Care Plans (EHCP /EHC Plans) will gradually replace Statements of Special Educational Needs. This means that there will be some children and young people with special educational needs (SEN) who have Statements of SEN and others who have EHC Plans / EHCPs

A Statement of SEN and an Education Health and Care Plan essentially do the same thing. That is, they outline your child’s special educational needs, the special educational provision that your child requires and the school that he or she should attend. They also outline the needs and provision of your child that are not considered to be related to his/ her education. 

There are key differences however between the two processes:

  1. There is added emphasis on the voice of the parent, child and young person;
  2. ECHPs have separate sections for social care and health care needs and support.; 
  3. The health care provision must be put in place by the health authority; 
  4. EHC Plans can be in place up until the child/ young person is 25; and
  5. Further Education settings such as Colleges can now identified in Education, Health and Care Plans


THE SPECIAL EDUCATIONAL NEEDS & DISABILITY TRIBUNAL (SENDIST / SEN TRIBUNAL)


A. About the SEN Tribunal (SENDIST)


The SEN Tribunal is part of The Courts and Tribunals Service. It is a specialist Tribunal specifically formed to hear appeals by parents (and now young people) against decisions of local authorities (LAs) relating to their child (or the young person) and his/ her special educational needs (SEN).

The SEN Tribunal consist of 2 or 3 panel members. One panel member will always be an SEN Tribunal Judge (or chairperson). The SEN Tribunal Judge will be a lawyer (a solicitor or barrister) whose role is to ask questions and to ensure that the Hearing is conducted fairly and justly. They also have to ensure that the decision that is reached is lawful.

The other panel member(s) are known as specialist members of the SEN Tribunal. They are chosen as a result of their particular expertise and experience in special educational needs (SEN). They are at the Hearing to ask questions and to assist the SEN Tribunal in its understanding of the particular issues relating to special educational needs (SEN). A specialist member of the SEN Tribunal is not a solicitor or a barrister.

A Tribunal Judge (or Chairperson) is a lawyer (Solicitor or Barrister) who chairs the Hearing. Their role is to ask questions and to ensure that the Hearing is conducted fairly and justly. They also have to ensure that the decision that is reached is lawful. It is the Tribunal Judge who drafts the final decision.

A specialist SEN Tribunal member has particular expertise and experience in special educational needs (SEN). They are at the hearing to ask questions and to assist the SEN Tribunal in its understanding of the particular issues relating to special educational needs (SEN). A specialist member is not a lawyer (Solicitor or Barrister).

There would be one or two specialist Tribunal members at a hearing. 

The contact details for the central SEN Tribunal office are found below. Please note that this will not be the venue for your hearing.

HM Courts & Tribunals Service Special Educational Needs and Disability Tribunal

1st Floor, Darlington Magistrates Court
Parkgate
Darlington 
DL1 1RU

Fax: 0870 739 4017

Email: sendistqueries@hmcts.gsi.gov.uk

Telephone: 01325 289350

The Tribunal Rules are a set of statutory rules that must be followed by the SEN Tribunal, Parents and local authorities throughout the Tribunal process. They outline the broad case management powers the SEN Tribunal has and provide a mechanism for both parents and local authorities to apply to the SEN Tribunal for certain directions, such as a postponement of the Hearing.



B. Before you appeal


You may decide to appeal if your Local Authority (LA) has done one of the following:

  1. Refused to conduct an Education, Health and Care (EHC) Assessment;
  2. Refused to issue an Education, Health and Care Plan (EHCP/ EHC Plan) following an EHC Assessment;
  3. Has issued an Education, Health and Care Plan (EHCP/ EHC Plan), however you do not agree with the description of the special educational needs (Section B) or special educational provision (Section G) or the educational setting named in the plan (Section I)
  4. Has refused to amend the Education, Health and Care Plan (EHCP) or the Statement of Special Educational Needs following an Annual Review despite your disagreement with what it says. 
    Please note: Following each Annual Review you can appeal to the SEN Tribunal (SENDIST)
  5. Has decided to cease the Education, Health and Care Plan or Statement of SEN. 

     

No. This is not within the jurisdiction of the Special Educational Needs & Disability Tribunal (SEN Tribunal / SENDIST).

No. This is not within the jurisdiction of the Special Educational Needs & Disability Tribunal (SEN Tribunal / SENDIST).

No. This is not within the jurisdiction of the Special Educational Needs & Disability Tribunal (SEN Tribunal / SENDIST)

No. This is not within the jurisdiction of the Special Educational Needs & Disability Tribunal (SENDIST / SEN Tribunal).

No. This is not within the jurisdiction of the Special Educational Needs & Disability Tribunal (SENDIST / SEN Tribunal).

2 months from the date on the local authority’s decision letter or a month from the date of the mediation certificate - whichever is later.

You or your representative must complete the relevant appeal form that can be found on the www.gov.uk website. SEN Action can also provide you with a copy of the relevant form at your request.

You or your representative have to send the form via post or fax to the Special Educational Needs & Disability Tribunal (SEN Tribunal / SENDIST) along with any other documentation you would like the SEN Tribunal and the local authority (LA) to consider at that point.

Before you appeal to the SEN Tribunal you must obtain what is known as a mediation certificate from a qualified mediator.

This means that the local authority (LA) has instructed solicitors to act for them throughout the Tribunal process. You will have to communicate directly with the solicitors for all matters relating to the appeal unless otherwise stated by the local authority (LA) or its solicitors

This is a question for you.

You are able to represent yourself throughout the SEN Tribunal process without instructing a representative to act for you. It all depends on whether this is something you are prepared and able to do. Some appeals can be complex and unfortunately very adversarial, which may make it very difficult for you to manage. It can also take up a lot of time, which you will have to balance with other family and work commitments.

You would also have to consider the cost of instructing a representative or whether you would prefer to seek support from a charitable organisation.

A representative also does not have to be a lawyer (solicitor or barrister) and can be what is called an advocate.

If you are intending to instruct a representative to support you in your appeal, it is advisable to consider carefully which representative you are going to instruct. Make sure you speak to the person who will be directly handling your appeal and ask all the questions you feel are relevant before instructing them. There is never a silly question when it comes to SEN Tribunals.

It is important to find out full details of how much representation will cost you.

SEN Action offers a no obligation and genuinely free consultation to enable you to discuss your issues before deciding whether to instruct us.

The Children & Family Act 2014 now requires all parents and young people to speak to a mediator before lodging an appeal to the Special Educational Needs and Disability Tribunal (SENDIST / SEN Tribunal).

There is no obligation to actually go to mediation before appealing to the SEN Tribunal. Although you are of course entitled to go to mediation if this is something you would like to do.

YES. They have no choice and must attend mediation if you decide that this is what you would like to do.

There is no cost to you to go to mediation with the local authority (LA). In fact you are entitled to claim back any reasonable expenses incurred as a result of you going to mediation. This does not include the cost of a representative.

A mediation certificate is a document that is signed by a qualified mediator confirming you have had a discussion prior to lodging your appeal. This is a mandatory requirement prior to appealing to the SEN Tribunal. You do not have not to attend a mediation session in order to obtain the mediation certificate.

No.

It is for the local authority (LA) to make arrangements for the mediation support required by law. The mediators however have to be independent from the local authority (LA) with the only connection being that the mediator is paid for by the local authority (LA).

If your appeal involves the local authority’s refusal to conduct an EHC Assessment, refusal to issue an EHC Plan or if you disagree with the contents of the EHC Plan then your child being 16 or older is significant.

Subject to your child’s capacity, it will be up to him/her to lodge the appeal to the SEN Tribunal and any subsequent appeal would be their appeal and not yours, as their parent. They can of course, elect to have you take the lead on the appeal but they would have to do this in writing.

If your child is over 16 but does not have capacity, then your appeal as his/her parent.

If your appeal involves challenging the contents of a Statement of Special Educational Needs (Statement) then your child’s views may have a greater level of significance than when they were younger. It is the parent however who lodges the appeal and it is a parental appeal.



C. Before the Hearing


All newly registered appeals will now be placed on a 12-week Tribunal timetable (previously 20 weeks). This places a significant time restriction on evidence gathering and it is therefore, advisable to arrange your independent professionals as early as possible. Having a well thought out strategy before you lodge your appeal is highly advisable.

Please note: If you are appealing against your local authority's decision not to conduct an EHC Needs Assessment then the appeal will not be decided by a hearing. Instead, the Tribunal will decide whether an assessment should be conducted by reviewing the evidence submitted by the parties (you and the LA).

If a party would like a hearing they can make an application and would need to explain why this is necessary.

If your child is in Year 6 and has an Education, Health and Care Plan (EHCP/ EHC Plan) or Statement of SEN then your local authority MUST issue an EHC Plan or Statement of SEN identifying the educational setting your child will be attending in Year 7.

This MUST be done by 15 February of Year 6.

You will then have 2 months to appeal against the contents of the EHCP or Statement of SEN.

For secondary transfer appeals the Tribunal timetable will be expedited and every effort is made to ensure that your appeal is heard prior to the summer holidays. This cannot be guaranteed however.

The appeals usually take place in July, which will only leave a small window for supporting your child’s transition into his/ her new school.

This means that the local authority (LA) has instructed a lawyer (either a Solicitor or a barrister) to represent them at the hearing. The representative will present the local authority’s case, ask questions of your witnesses and may ask you questions also. The representative will also ask questions of his or her own witnesses and has a duty to assist the SEN Tribunal with any questions it has for the local authority.

This is a question for you.

You may have done all of the work on the appeal yourself and feel confident to go into a hearing without a representative. There is nothing wrong with you doing that. The Tribunal panel on the day of the Hearing will do its best to make you feel comfortable and will be conscious of the fact that you are not represented.

It is important to note however that SEN Tribunal hearings can be somewhat complex. Often for example, there are complex and detailed discussions on the law and its implications in the appeal. A hearing may also become quite adversarial and an experienced SEN advocate would be well placed to support you through this. The advocate would be in a position to ask your witnesses questions and importantly, challenge the local authority’s witnesses also.

It may be that you have had support throughout the appeal process by a solicitor who has advised that you need a barrister to represent you at the hearing. This again is a question for you. You do not have to agree to this and you do not have to accept the barrister your solicitor has recommended. . It also does not have to be a barrister who represents you at a Hearing. SEN Action’s Specialist Advocates are well placed to support you in this respect and at a fraction of the cost.

It is important that you carefully consider which representative you would like to instruct. Make sure you speak with them first as they will be speaking for you at the Hearing. Make sure you understand how much it will cost you and what the implications would be if the Hearing doesn’t finish on the day.

It would be advisable to consider a representative who is able to offer you a comprehensive service that includes support throughout the appeal process and representation at the subsequent hearing.

There are also charitable organisations who will be able to offer you some support. They can sometimes provide a representative to support parents at SEN Tribunal Hearings.

Yes. Special Educational Needs and Disability Tribunals (SEN Tribunals/ SENDIST) are evidenced based. You or your representative therefore, need to make sure you have the evidence required to show the SEN Tribunal that you are right and that your position should be accepted.

This depends on the particular circumstances of your situation and your child’s specific needs. It will also depend on whether you are relying on evidence already available, which is typically provided by the local authority, or whether you do not accept that evidence.

If you do not accept the professional evidence currently available then you will likely require up-to-date evidence from professionals you will have to instruct and pay for yourself.

The evidence you can gather will therefore, also be determined by the resources you have.

You may be able to obtain support from charitable organisations that sometimes can assist in arranging assessments by professionals. Legal aid might also be available to you, which can be used to secure professional involvement. This however is a limited public resource and is not available to everybody. 

Generally advice from an Educational Psychologist (EP) would be necessary.  Depending on the circumstances and the needs of your child, you may also require the involvement of a Speech and Language Therapist (SALT), Occupational Therapist (OT), Physiotherapist (Physio), Specialist Teachers (for Autism or dyslexia) or even a child psychiatrist.

It all depends on the circumstances and the needs of your child.

The evidence you require for your appeal will also be determined by what you are appealing against.

Yes. After you or your representative have lodged your appeal the Special Educational Needs & Disability Tribunal (SENDIST / SEN Tribunal) will send you its Case Management Directions. These outline the deadlines for the appeal, which includes the date by which the parents and the local authority have to submit their final evidence.

This is typically at week 16 of the appeal process.

Yes.

This however will be subject to the agreement of the Special Educational Needs & Disability Tribunal (SENDIST / SEN Tribunal). You or your representative will have to make an application on a ‘Request for Changes Form’ for permission to have the evidence admitted stating your reasons for why it was not submitted on time.

The SEN Tribunal will then decide whether it should be admitted or not. Often the SEN Tribunal office will respond by indicating that the application should be made on the day of the Hearing.

It is important to note that this applies to both parties: the parents and the local authority (LA).

This depends on the particular circumstances of your situation and your child’s specific needs. It will also depend on whether you are relying on evidence already available, which is typically provided by the local authority, or whether you do not accept that evidence.

If you do not accept the professional evidence currently available then you will likely require up-to-date evidence from professionals you have to instruct and pay for yourself.

The evidence you can gather will therefore, also be determined by the resources you have.

You may be able to obtain support from the charitable organisations that sometimes can assist in arranging assessments by professionals. Legal aid might also be available to you, which can be used to secure professional involvement. This however is a limited public resource and is not available to everybody.

Generally, advice from an Educational Psychologist (EP) would be necessary.  Depending on the circumstances and the needs of your child, you may also require the involvement of a Speech and Language Therapist (SALT), Occupational Therapist (OT), Physiotherapist (Physio), Specialist Teachers (for Autism or dyslexia) or even a child psychiatrist.

It all depends on the circumstances and the needs of your child.

The evidence you require for your will also be determined by what you are appealing against.

Yes.

This is important and should be included. As a general rule, reports that are over 3 years old may be considered to be too old to be relevant. This however depends on the particular circumstances of the appeal and your child.

Yes.

Even though you are unable to appeal against the health element of the Education, Health & Care Plan (EHCP / EHC Plan) the SEN Tribunal will still need to aware of the evidence relating to those needs.

Yes.

Even though you are unable to appeal against the social care element of the Education, Health & Care Plan (EHCP / EHC Plan) the SEN Tribunal will still need to aware of the evidence relating to those needs.

Yes

Your child’s views are important and should be provided. It is important to note however that neither your views or those of your child are determinative. The SEN Tribunal may make a decision that goes against yours and your child’s views.

The local authority (LA) has to decide whether it will defend the appeal or not. If the LA decides to defend the appeal then it must explain why within 6 weeks of receiving the appeal. The exact date for the response will be stated in the SEN Tribunal’s Case Management Directions.

The local authority (LA) then has to follow the directions of the SEN Tribunal. If it intends to submit evidence for the SEN Tribunal’s consideration then it must do so by the deadline stated in the Case Management Directions.

If the appeal involves a challenge to the contents of EHC Plan or Statement of SEN then the local authority (LA) will be required to respond to the parental working document.

If the appeal involves an Education, Health and Care Assessment or Plan then before the Hearing, the local authority (LA) is required to produce what is called a Tribunal Bundle. A Tribunal bundle is a paginated copy of all of the documentation provides as part of the Tribunal process.

The local authority (LA) would also have to attend the SEN Tribunal hearing.

The local authority’s response is a written document by the LA that sets out why it is defending the appeal. This must be submitted by the LA within 6 weeks of receiving the parental appeal. The exact date for the response will be stated in the SEN Tribunal’s Case Management Directions.

No. If you consider it to be unreasonable for the local authority (LA) to send in one or more of its professionals to assess/ observe your child at school then you can say no. These professionals would need your permission before they can see your child.

Please note however that the local authority (LA) can make a request to the SEN Tribunal for a direction compelling you to allow the LA professionals to see your child. The SEN Tribunal does have the power to order this.

If your request for your professionals to visit the local authority’s proposed school is refused or ignored then you or your representative should make an application to the SEN Tribunal for permission. The SEN Tribunal has the power to order the LA and its proposed school to allow you and your professionals to visit.

There are a number of ways for you or your representative to address this situation:

  1. Make an application to the Special Educational Needs and Disability Tribunal (SEN Tribunal / SENDIST) objecting to the evidence and requesting that it not be admitted.
  2. Make an application to Special Educational Needs and Disability Tribunal (SEN Tribunal / SENDIST) requesting a postponement of the Hearing; and/or

  3. Make an application Special Educational Needs and Disability Tribunal (SEN Tribunal / SENDIST) requesting additional time to respond to the new evidence.

If you or your representative are having difficulties gathering your evidence in time for it to be submitted by the deadline set in the SEN Tribunal’s Case Management Directions then you or your representative should make an application to the SEN Tribunal requesting additional time.

There are two options available to you or your representative:

  1. If it is the first time the local authority (LA) has failed to cooperate then this would warrant an application being made to the SEN Tribunal (SENDIST) seeking a direction compelling the LA to cooperate.

  2. If the local authority (LA) has persistently failed to cooperate then you might want to consider making an application to the SEN Tribunal (SENDIST) seeking a direction barring the LA from taking any further part in the Tribunal process.

If your appeal involves a challenge to the contents of your child’s Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs then something called a Working Document must be produced.

The Working Document is a Microsoft Word version of your child’s Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs (depending of course on which one your child has).

The Working Document is used by the Parties (Parents and local authority (LA)) to propose changes to the EHC Plan (EHCP) or Statement of SEN. It is sent back and forth between the Parties in an attempt to reach as much agreement as possible. Each time the Working Document is amended a separate version is created ie. Version 1, Version 2, Version 3 etc

The final version of the Working Document is then sent to the SEN Tribunal by the local authority (LA) a couple of weeks prior to the Hearing date.

The Working Document is then used at the Hearing as the basis for the discussion regarding what changes should be made to the EHC Plan (EHCP) or Statement of SEN.

On each Working Document there should be a key, which outlines the format in which changes should be indicated. SEN Action’s Specialist Advocate, Sean has in his time seen a number of different keys being used and is aware of different approaches when it comes to amending the Working Document.

Typically however the following Key is used:

Normal Type

The wording already in the EHC Plan / Statement

Bold Type

Additional wording being proposed by Parents

Bold Strikethrough

Wording in the EHC Plan / Statement that the
....Parents would like deleted

Italic Type

Additional wording being proposed by the LA

Italic Strikethrough

....Wording in the EHC Plan / Statement that the LA
....would now like deleted

Underlined type / Underlined .Strikethrough

Additional wording or proposed deletions that are
....agreed between the Parents and the LA

 

As a Parent, any wording you would like added to the EHC Plan or Statement should be included in bold and any wording you would like deleted from the EHC Plan or Statement should be indicated by highlighting the wording in bold and striking it through. The strikethrough button is usually on your toolbar at the top and looks like this; abc. Your representative will be able to support you through the Working Document process.

Yes. The SEN Tribunal Case Management Directions will stipulate that the final Working Document must be submitted by the local authority (LA) within 10 working days of the Hearing.

Yes. The SEN Tribunal expects the Parties (Parents and local authority (LA) to attempt to reach as much as agreement as possible prior to the Hearing. It is not unusual for another version of the Working Document to be produced on the day of the Hearing.

There are two options here:

  1. If there is just one failure by the local authority to cooperate with the Working Document process then you or your representative should make an application to the SEN Tribunal (SENDIST) seeking a direction compelling the LA to respond; or

  2. If the local authority (LA) persistently fails to respond to the Working Document then you or your representative might want to consider applying to the SEN Tribunal (SENDIST) for a direction barring the LA from taking any further part in the appeal process.

If you agree then you can just say so and the Hearing will likely be postponed.

If you do not agree however then you or your representative should put this in writing to the SEN Tribunal (SENDIST) outlining why you do not agree and the impact that a postponement would have on you and your child.

You or your representative can make an application to the Special Educational Needs and Disability Tribunal (SEN Tribunal / Tribunal) requesting that the Hearing be postponed. It is advisable to have a number of available alternative dates to propose to the SEN Tribunal.

You or your representative can apply to the SEN Tribunal (SENDIST) for a Witness Summons. You will need to demonstrate that you have asked the professional to attend but they have refused and explain why that professional needs to be at the Hearing.



D. At the Hearing


The Tribunal Service will try to arrange for the Hearing to be held as close to the parents as possible. This however cannot be guaranteed and you may therefore, be expected to travel a reasonable distance to your Hearing. 

Please note: If you are appealing against your local authority's decision not to conduct an EHC Needs Assessment then the appeal will not be decided by a Hearing. Instead, the Tribunal will decide whether an assessment should be conducted by reviewing the evidence submitted by the parties (you and the LA).

If a party would like a Hearing they can make an application and would need to explain why this is necessary.

When you first arrive at the Hearing venue you may have to sign in and depending on the venue, your bag may be inspected and you may have to go through a metal detector.

You will then be directed where to go, whether that be a particular floor or a waiting room/ area.

If you have not been allocated a room but there are waiting rooms available on a first come first serve basis then try and secure one.

A Tribunal Clerk will then come and find you to take your details and those of your witnesses. The Clerk will pass on any initial instructions from the SEN Tribunal panel and will take any additional documentation you have that you intend to submit.

If you have any preliminary applications that you would like to make then you need to tell the Clerk so that he or she can let the SEN Tribunal Panel know.

The local authority (LA) or its representative may request to speak with your or your representative prior to going into the Hearing room. This may be to discuss the Working Document or to provide you with copies of additional documentation that the LA intends to submit.

You will then wait with your witnesses until the Clerk informs you that it is time to go into the Hearing. If there are preliminary issues the SEN Tribunal would like to raise or if the Parties (Parents or local authority (LA) have indicated that there are preliminary issues to discuss then the SEN Tribunal may request that you and the LA go into the Hearing room initially without your witnesses.

A Tribunal Clerk is an employee of the Courts & Tribunals Service who assists the SEN Tribunal and the Parties (Parents and LA) on the day of the Hearing.

This depends on the venue. Many Tribunal venues allocate rooms to the parties due to the sensitive nature of the appeal. This however cannot be guaranteed.

In other venues, rooms are allocated on a first come first serve basis or are simply not available.

If you arrive at the venue and there are no rooms available BUT the local authority has secured one, you or your representative should ask them to allow you to take the room instead. The Tribunal Clerk might assist here.

If you have additional evidence to provide to the SEN Tribunal on the day of the Hearing then you will need to bring along sufficient copies. It is advisable, if possible, to send copies to the SEN Tribunal and the local authority (LA) prior to the Hearing day.

On the day, you will have to make the Tribunal Clerk aware that you have additional evidence to submit. The Clerk will more than likely take copies from you at that point and will then advise the SEN Tribunal of the situation.

You or your representative will then have to go into the Hearing room and make an application to the SEN Tribunal Panel for the additional documentation to be admitted as evidence. You or your representative will have to explain why the documentation is being provided so late and why it could not have been produced sooner. You or your representative will also need to explain to the SEN Tribunal Panel why the documentation is relevant to the issues in the appeal and why your case would be prejudiced if it is not allowed in.

The local authority or its representative may object to your additional evidence being admitted and if so will outline its reasons following your application.

If the local authority has produced additional evidence on the day of the Hearing then you have a number of options available to you. If you have no objection to the evidence then you or your representative can simply advise the SEN Tribunal that you do not object.

If you do object to the LA’s additional evidence then you have two options:

  1. Object to the evidence being admitted; and/or

  2. If the evidence is admitted then you can apply for an adjournment of the Hearing as a result of being prejudiced by the late submission of the evidence.

You or your representative will need to make sure you have brought along sufficient copies of the new version of the Working Document to the Hearing. You or your representative will then need to seek out the LA or its representative as soon as you get to the Hearing venue and provide them with copies of the new Working Document.

You or your representative will also have to provide the Tribunal Clerk with 3 copies for the SEN Tribunal Panel.

What you need to do will depend on the additional amendments and their significance. If the local authority (LA) has simply agreed to some of your changes then that is a good thing and you do not have to do anything.

If however the LA is proposing significant amendments that effectively change its position on one or more of the issues then you will need time to consider them. This may result in a delay to the start of the Hearing.

After considering the amendments you will have to decide whether the changes are so significant that you cannot deal with them on the day. You or your representative can do the following in this situation:

  1. Object to the local authority (LA) changing its position so late in the day and seek a direction from the SEN Tribunal Panel barring the LA from doing this; or

  2. If the SEN Tribunal permits the LA to change its position then you might want to consider requesting an adjournment of the Hearing to enable you to properly consider the change in position and if necessary respond to it.

This depends on the venue that has been allocated for your Hearing. There are some specific Tribunal venues, however at times the Tribunal Service needs to arrange Hearings in alternative venues. They are sometime held in hotels, conference venues or sometime actual court settings (i.e. the magistrate’s court).

The Tribunal however will do everything in its power to make the Hearing room less formal. If it is in the magistrate’s court for example, the Tribunal panel will often have a separate table set up so they can sit at the same level as the Parties and do not have to sit at the raised bench.

The SEN Tribunal panel will usually sit on a table at the front of the room. The parents and their witnesses and the local authority and its witnesses usually sit in a row in front of the SEN Tribunal.

An example of a possible layout is included below:

 

                                                           

How the Hearing room is set up however very much depends on the venue, the rooms available and the number of people attending. The parties for example might sit in a curve in order to make more space. At times, due to space restrictions, it may be necessary for those attending to sit in more than one row.

This means that the local authority (LA) has instructed a lawyer (either a Solicitor or a Barrister) to represent them at the Hearing. The representative will present the local authority’s case, ask questions of your witnesses and may ask you questions also. The representative will also ask questions of his or her own witnesses and has a duty to assist the SEN Tribunal with any questions it has for the local authority.

This is a question for you.

You may have done all of the work on the appeal yourself and feel confident to go into a Hearing without a representative. There is nothing wrong with you doing that. The SEN Tribunal panel on the day of the Hearing will do their best to make you feel comfortable and will be conscious of the fact that you are not represented.

It is important to note however that SEN Tribunal Hearings can be somewhat complex. Often for example, there are complex and detailed discussions on the law and its implications in the appeal. A Hearing may also become quite adversarial and an experienced SEN advocate would be well placed to support you through this. The advocate would be in a position to ask your witnesses questions and importantly, challenge the local authority’s witnesses also.

It may be that you have had support throughout the appeal process by a solicitor who has advised that you need a barrister to represent you at the Hearing. This again is a question for you. You do not have to agree to this and you do not have to accept the barrister your solicitor has recommended. It also does not have to be a barrister who represents you at a Hearing. SEN Action’s Specialist Advocates are well placed to support you in this respect and at a fraction of the cost.

It is important that you carefully consider which representative you would like to instruct. Make sure you speak with them first as they will be speaking for you at the Hearing. Make sure you understand how much it will cost you and what the implications would be if the Hearing doesn’t finish on the day.

It would be advisable to consider a representative who is able to offer you a comprehensive service that includes support throughout the appeal process and representation at the subsequent Hearing.

There are also charitable organisations who will be able to offer you some support. They can sometimes provide a representative to support parents at SEN Tribunal Hearings.

Yes.

If you want the SEN Tribunal Panel to meet your child then the Hearing room will be arranged to make sure it is as informal as possible. The SEN Tribunal Panel will then invite you and your child into the Hearing room along with the LA or its representative. This will be a brief, informal ‘chat’ with your child, if that is possible and then your child will be expected to go back home or to school. The SEN Tribunal Panel generally prefers that the child does not sit in the Hearing room for the Hearing itself, although that does not mean this cannot happen if it is something you feel strongly about.            

You are advised to bring someone along who can look after your child as you will be involved in the Hearing.

The Special Educational Needs & Disability Tribunal (SENDIST / SEN Tribunal) only permits the Parties (both Parents and the local authority (LA)) to bring 3 witnesses to a Hearing. Only in exceptional circumstances will more than 3 witnesses be permitted.

Yes.

The SEN Tribunal understands how stressful the appeal process can be for you. You are able to bring someone along to support you during the Hearing, however they are not permitted to participate in the Hearing itself.

Yes.

You or your representative will have to notify the SEN Tribunal in advance so that a suitable venue can be identified and the appropriate arrangements made.

Yes.

You or your representative will have to notify the SEN Tribunal in advance so that a translator can be arranged.

As you go into the Hearing room you will notice that everyone has been allocated a place to sit. Once everyone has taken their seats the SEN Tribunal Judge will introduce him or herself and the Specialist Panel Members. The Judge will then invite everyone present to introduce themselves.

The Judge will explain the role of the SEN Tribunal, the decisions it is able to make and its independence from the local authority (LA). The Judge will then deal with the particular appeal and will set out an agenda for the Hearing.

The Hearing will then follow that agenda and the SEN Tribunal will hear evidence from you, as parents, and the witnesses who are present. Questions will be put by the SEN Tribunal Panel and both Parties (Parents and the LA, or their representatives) will have an opportunity to ask question of any of the witnesses. Some Tribunal Judges allow witnesses themselves to ask questions of other witnesses, others however prefer for questions to go through the representatives.

This is the process until all of the issues identified in the SEN Tribunal Judge’s agenda have been addressed.

Following completion of all of the evidence, the SEN Tribunal will invite the Parties to make closing submissions on the issues. The local authority (LA) or its representative will go first, followed by the parents or their representatives. Even if a parent is represented there will be an opportunity for them to say something at the end if they would like to.

The SEN Tribunal Judge will then conclude the Hearing and everyone will leave.

Yes.

The SEN Tribunal Panel will undoubtedly have questions for you, as a Parent. The LA or its representative may also ask you questions.

Yes.

Although if you have a representative it will be the expectation that the majority of your questions will come through him or her.

If the Hearing does not finish in one day then it will have to be adjourned to the next available date.

This will not be the next day and it may take several weeks before a new Hearing date can be found. Also depending on how much evidence there is left to be heard, you may need to bring back all of your witnesses too.



E. After the Hearing


Depending on the type of appeal the Special Educational Needs and Disability Tribunal (SENDIST/ SEN Tribunal) can make the following final decisions:

  1. Order the local authority (LA) to conduct an Education, Health and Care Assessment (EHC Assessment);
  2. Order the local authority (LA) to issue an Education, Health and Care Plan (EHC Plan / EHCP);
  3. Order the local authority (LA) to amend the contents of the Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs;
  4. Order the local authority (LA) to name a particular school or educational setting in the Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs;
  5. Order the local authority (LA) to name a particular type of school or educational setting in the Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs;
  6. Order the local authority (LA) to cease the Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs; and/or
  7. Order the local authority (LA) to maintain the Education, Health and Care Plan (EHC Plan / EHCP) or Statement of Special Educational Needs.

     

The SEN Tribunal aims to issue final decisions within 2 weeks of the Hearing. This however is not a guarantee and it may take longer.

In this situation you can either wait and then re-appeal at a later stage or you can lodge an appeal if you consider the SEN Tribunal’s decision to be unlawful. Your appeal against the SEN Tribunal Panel’s decision is lodged with the Special Educational Needs and Disability Tribunal (SENDIST) itself and if that is unsuccessful then you can appeal to the Upper Tribunal.



F. Cost of Appealing


There is no cost in lodging an actual appeal.

Whether you incur costs depends on whether you intend to instruct educational professionals to provide you with evidence to prove your case. It also depends on whether you will be instructing a representative. 

Yes but only if the local authority (LA) has acted unreasonably. If you consider the LA to have acted unreasonably during the Tribunal process then you or your representative can make an application to the SEN Tribunal (SENDIST) for costs.  You may not recover all of your costs.

Yes but only if you are considered to have acted unreasonably. If the LA consider you to have acted unreasonably during the Tribunal process then it can make an application to the SEN Tribunal (SENDIST) for costs.  

You can lodge an appeal if you consider the SEN Tribunal’s decision not to order costs to be unlawful. Your appeal is lodged with the Special Educational Needs and Disability Tribunal (SENDIST) itself and if that is unsuccessful then you can appeal to the Upper Tribunal.

You can lodge an appeal if you consider the SEN Tribunal’s decision to order costs against you to be unlawful. Your appeal is lodged with the Special Educational Needs and Disability Tribunal (SENDIST) itself and if that is unsuccessful then you can appeal to the Upper Tribunal.



THE UPPER TRIBUNAL


The Upper Tribunal has the equivalent status of the High Court and has been established to hear appeals against decisions of the Special Educational Needs and Disability Tribunal (SENDIST/ SEN Tribunal).

The Upper Tribunal does not re-hear the appeal that was before the SEN Tribunal. It instead decides, upon hearing argument, whether the SEN Tribunal’s decision was unlawful. The Upper Tribunal is therefore, not an opportunity for the Parties to re-argue their case.

The Upper Tribunal generally consists of just one Upper Tribunal Judge and there are no specialist panel members as no evidence is heard. 

If you have been unsuccessful in your appeal to the Special Educational Needs and Disability Tribunal (SENDIST/ SEN Tribunal) then you or your representative can appeal the decision.

You or your representative firstly make an application for permission to appeal to the SEN Tribunal itself. The application can only be based on a principle of law. That is, you consider the decision to be unlawful. Simply disagreeing with the decision is not a sufficient basis to appeal it.

If the SEN Tribunal refuses you permission to appeal then you or your representative can re-new your application to the Upper Tribunal. Again, this can only be on the basis that you consider the SEN Tribunal decision to be unlawful.

The Upper Tribunal will decide whether your application for permission to appeal is ‘arguable’. If the Upper Tribunal concludes that it unarguable then your application will be denied. You or your representative will however have an opportunity to request an oral Hearing, which will be before an Upper Tribunal Judge. You or your representative will then make your application for appeal orally.

If the Upper Tribunal decides that your application or permission to appeal is arguable then it will proceed to a full appeal before the Upper Tribunal.

Please note: you may also be required to attend an Upper Tribunal Hearing even if you have been successful in your appeal to the SEN Tribunal. The local authority (LA) equally has a right to appeal against the decision of the SEN Tribunal and the same process as above can be followed.

As the parent you have a right to attend the Upper Tribunal Hearing, although you do not always have to.

No. The Upper Tribunal is concerned with legal argument not hearing evidence.

This is a question for you. You do not have to have a representative at an Upper Tribunal hearing and you can represent yourself.

It is important to bear in mind however that the Upper Tribunal involves a discussion on whether the SEN Tribunal’s decision was unlawful. The Upper Tribunal will therefore, require you to explain why you consider the decision to be lawful or unlawful with reference to the relevant law.

It would therefore, be advisable to instruct a representative to support you with the Upper Tribunal appeal. SEN Action is able to offer this service to you at a highly competitive rate. If we have supported you in the appeal before the SEN Tribunal then there would be no additional cost for the Upper Tribunal appeal.

If the Upper Tribunal decides that the SEN Tribunal’s decision was lawful then the appeal before the Upper Tribunal will be dismissed.

If the Upper Tribunal decides that the SEN Tribunal decision is unlawful then it would generally (although will not always) mean that the full appeal is sent back to the Special Educational Needs and Disability Tribunal (SEN Tribunal / SENDIST) for reconsideration.

This means that the process starts again, although often the appeal is placed on an expedited timetable.

If SEN Action has represented you thought-out this appeal process, then we will offer our services at a 50% reduced rate for the new SEN Tribunal appeal.

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