"The hope you give parents is nothing short of a miracle"
How To Win a SEN Appeal (transcript)MAKING AN APPEAL
OVERVIEW Hello, my name is Douglas Silas, and I am a solicitor who specialises in representing parents of children and young people with special educational needs, or SEN for short. I am going to tell you about the various steps that you need to take if you have to bring an appeal to the Special Educational Needs and Disability Tribunal, to ensure that any appeal that you bring is as strong as it can be, so that you then have the best chance of succeeding with it. Introduction The SEN Tribunal appeal is part of the First-Tier Tribunal (FTT) in the Health, Education and Social Care Chamber. It hears appeals regarding a child or young person’s SEN. The Tribunal is independent of both national and local government and has jurisdiction across all of England and Wales. Orders created by the Tribunal must be enforced by Local Authorities (LAs). Types of appeal A parent or carer of a child with SEN who is under 16 years old, or a young person with SEN who is over 16 and who is deemed to have ‘mental capacity’ may appeal to the Tribunal in a variety of situations, including: • Where the LA has refused to conduct an Education, Health and Care (EHC) Needs assessment or reassessment of a child or young person’s SEN; (these make up the majority of appeals by themselves) • Where, following the assessment, the LA has refused to make an EHC Plan (also known as an ‘EHCP’) • Against the contents of any EHCP issued in its final form, in relation to the description of SEN in Section B, the Special Educational Provision (or ‘SEP’) in Section F and/or the school/college or other educational placement named in Section I (which between them are actually the most appeals) These are the three main types of appeal, but appeals can also be: • Against a refusal to change the name of a school/college or other educational placement named in Section I of an EHCP; • Against a decision to cease to maintain an EHCP. Also, following what was known as the ‘National Trial’ (which ran from April 2018 to August 2021), the Tribunal’s powers have now been extended to also include the power to make ‘non-binding recommendations’ about health and social care issues in appeals brought this way, provided that the appeal includes an education element also. Numbers of appeals During the academic year of 2023-2024 there were 21,106 appeals registered with the Tribunal, which was a 54.53% increase from the previous year’s statistics. This is a 5250% increase on almost two decades of only having about 3-400 appeals, prior to the introduction of EHCPs by the Children and Families Act in September 2014. The Act was brought in because there was decreasing parental confidence in the SEN system and it was then hoped it could reduce disputes. However, paradoxically, since then, the number of appeals has risen year on year. Conclusion I am not going to set out here the law in relation to SEN, as that is too detailed and would take me far too long to do. Suffice it to say, we have now built up a plethora of legislation (including various Regulations, Guidance and the current SEND Code of Practice), as well as case law (illustrating how the Courts interpret what the legislation says) over the past few decades, which need to be had regard to. I will now tell you about the deadlines for appealing. DEADLINES FOR APPEALING Introduction The most important thing that you need to know from the outset is that you only have a two-month time limit in which to lodge an appeal with the Tribunal, from the date of the 'decision letter' from the LA. The General Principle This decision letter will either be refusing your request for an assessment or, if following an assessment, it may be informing you of their intention to not make a plan. It may also accompany a finalised version of an EHCP after you have responded to a draft version (following an assessment) or tell you that the LA, if you are requesting amendments to the EHCP when first issued or after an Annual Review, will or will not make all or some of them. It is these “decisions” that trigger the right to appeal. The two-month window from the date of the decision letter used to cause an issue with some parents, as some LA’s would put the letters in the second-class post, so that parents may not see them till much later and thereby have reduced time to appeal. However, most communication is now carried out by email and hard copies are produced later, so the decision letter will usually be emailed first. The Mediation Certificate A bit paradoxically, an appeal can only be made when you have obtained a 'mediation certificate’ unless you are only appealing about a school. However, it is a common mistake to think you are only appealing about a school when, in fact, you should appeal against other parts of an EHCP as well sometimes. By obtaining the mediation certificate, the deadline will be extended by a further 30 days or month from the date of the certificate - i.e. if the certificate is dated 2 January, the deadline to appeal would be 2 February, so it is possible to extend the time for appealing sometimes. Please be careful though, as if you get you mediation certificate soon after you receive a decision letter giving you a right of appeal, you still need to lodge your appeal within the two-months. The deadline for lodging an appeal in these cases will be either the end of the original two-month window, or the date of the mediation certificate, whichever is later. In order to be able to obtain a ‘mediation certificate’, the mediation service (whose details the LA is obliged to give you in their decision letter) must be contacted within the original two-month window. You do not have to participate in mediation though if you feel this would not yield proper results, you can simply contact the mediation service and explain that you waive your rights to mediation and a certificate should be granted to you either that day or in the days following. If you wish to participate in mediation however, the LA must then arrange for mediation between it and the child’s parent or young person, within 30 days from the date on which it was informed by the child’s parent or young person that he or she wished to pursue mediation. The LA cannot simply refuse mediation or refuse to attend the mediation. Secondary/post-16 transfers The law sets a mandatory deadline of 15th February for children in Year 6 approaching secondary transfers, or 31st March for children or young people entering post-16 transfers in the year before transfer, for producing a final EHCP naming a placement where the child or young person is to attend for the next academic year. These deadlines were set so that, in theory, the parents or young person should have their appeal heard before the end of July that year, allowing enough time for a decision to be made on placement before the start of the next academic year. However, with some LA’s missing this deadline and the Tribunal currently being inundated with appeals, a large number of these phase transfer hearings are now, unfortunately, being pushed back into the next academic year, or heard exceptionally with both parties’ agreement orally during August or ‘on the papers’ - i.e. at a hearing without the parties or their witnesses being present. Conclusion I am not going to set out here everything in relation to knowing when to appeal, as each case is very different to the next and what may be right for one appeal, will not be right for another appeal. I will now tell you about drafting and lodging your appeal. DRAFTING AND LODGING YOUR APPEAL Introduction The first thing to do when putting together an appeal, is to make sure that you have all of the correct documents and evidence, as well as to ensure that you are putting the best arguments forward. Doing this all properly takes up a lot of time and effort and it is very important to be as objective as you can be, even though you will inevitably be emotionally involved. How do you appeal? Arguably the most important document is the Tribunal appeal form, the correct one of which can be downloaded from the Tribunal’s website. Please make sure that you choose the right one. Although it is many pages long, it is supposed to be as simple as possible to fill out. Unfortunately, there is very little space to fill out your reasons for bringing the appeal, but these can be appended to the form on a separate document or letter, submitted alongside. There is also a checklist in the appeal form to confirm that you have submitted all of the required documents with the appeal. You will also need to set out details of the documentary evidence that you are enclosing with the appeal. As this process is designed to be as ‘parent-friendly’ as possible, when registering your appeal, the Tribunal will give you guidance on what formalities needs to be done throughout your appeal. Reasons for appealing As the appeal form leaves very little space to note your reasons for appeal, a detailed Grounds of Appeal is often submitted alongside your appeal documents (mine are roughly about 5-10 pages or more). They should usually include a detailed analysis of the child's history and assessments and then make arguments, both evidential and legal, as to why you need to bring the appeal and why your appeal should be allowed. The most important point is to be clear about why you are appealing, no matter how long and detailed the appeal is or is not. My general rule is that you want to tell the Tribunal what has happened in the past, what is happening now and what you want to happen in the future. Even though I have conducted and written many hundreds of appeals during my career, it still takes me many hours to prepare a good appeal and I know that some parents often take many weeks to get their appeals drafted. Don't be fooled into thinking that lodging your appeal quickly will always help you. It is also often better to make sure that there is 'quality' to your appeal, rather than ‘quantity’, as even though the hearing may be months away, what you say now will be discussed in detail at the hearing. Remember, this is the very first document that the Tribunal Panel are going to read when they consider your appeal and you only get one chance to make a first impression they say. So, it is therefore very important to make it the very best that it can be. Documents In addition, you will need to refer to relevant documents, such as assessment reports by schools, Educational Psychologists (EPs), Speech & Language Therapists (SaLTs), Occupational Therapists (OTs), Physiotherapists (PTs) and other relevant educational or medical professionals, such as Clinical Psychologists, Paediatricians, Physiotherapists, etc., as well as other reports that are relevant, or statements from other people or professionals working with the child or young person. Again, it is hard for me to say exactly what reports should be put in, or what sections of reports should be referred to, as every case is different to the next. However, remember that your task is to try and make your appeal as strong as it can be and sometimes, although there is the temptation to say a lot, or put in a lot of reports, it can then be more difficult for the Tribunal to work out what you want them to know. Always remember that ‘less is more’ and you have to be careful to not let your 20 ‘good’ points mask your 3 ‘knockout’ points. It is also important to remember that reports are not usually considered to be up to date if they were produced more than a year ago. You may also need to put in prospectuses and Ofsted reports from the school or schools that are involved in the appeal. Conclusion I am not going to try and tell you how exactly you should draft your particular appeal since, as I said, every case is very different to the next and what may be right for one appeal, will not be right for another appeal. The trick is to always ensure that what you say or submit is as relevant and straightforward as possible. I will now tell you about registering your appeal and the appeal timetable REGISTERING YOUR APPEAL AND THE APPEAL TIMETABLE Introduction Following lodging your appeal, the next step is for the Tribunal to register it. With the ever-rising number of cases, registration of an appeal can take up to three weeks. However, this will of course be delayed if you have not lodged all of the required documents so, should the Tribunal still consider your appeal, they will write to you to tell you what they need for your appeal to be registered and will usually allow you 10 working days to submit this information. Registering the appeal Before registering your appeal, the Tribunal will have to consider whether they are able to deal with it and they may not be able to so if, for example, you do not have a right to appeal, or your appeal falls outside of their jurisdiction. If, for some reason, the appeal cannot be registered, the Tribunal may write to you to give you the opportunity to provide more details or to provide an explanation - e.g. if your appeal was lodged out of time. Similarly, if you have not provided enough information for the LA to respond to, the Tribunal will again write to you explaining what you must send to them, which they will then send to the LA. The appeal timetable Provided you have done everything right and submitted the correct information and documents, the Tribunal will register your appeal. This will involve the receipt of a ‘registration’ letter from the Tribunal automatic directions, providing lots of pieces of important information and relevant dates, such as: • The appeal number; • The date for the LA to respond to your appeal by; • The date by which Final Evidence must be lodged; • The date by which the Case Review From must be lodged, which sets out the appeals readiness for hearing; lists your witnesses and your representative (if you have one); • The date the LA must produce a Bundle for the hearing (this is usually the same as the Case Review Form); and • The Hearing Date (or Hearing Date ‘window’). After registration, the Tribunal will send a copy of your appeal to the LA. As a general rule now, as the Tribunal is inundated with appeals, the hearing is currently being listed over a year from the appeal being registered. However, this will vary based on judicial and court availability. However, if the appeal concerns a ‘Phase Transfer’ – a transfer to primary, secondary, or post-16 or post-19 education - the appeal should be expedited nd heard earlier. An expedition may also be provided when the child is out of school, which may affect other timescales. If you or any key witnesses cannot make this date, you will have to submit a ‘Request for Change’ form (SEND7). On this form, you set out the change you want and your reasons, but you must obtain the LA’s views first (or leave at least 5 clear working days before submitting the request). Even if the request submitted complies with all of the rules, the request may still be refused and it is within the Tribunal's discretion, in line with “the overriding objective" whether to allow the request or not. The LA are also allowed to submit a ‘Request for Change’ should they require any changes to the Tribunal process, as can you. The hearing date for secondary/post-16 phase transfer appeals The LA have to make decisions on secondary transfers by a set date oin law (15th February), or post-16, 18 or 19 phase transfers (31st March), in order to allow enough time for any potential appeal to be concluded hopefully before the start of the next academic year and the child or young person to have their placement confirmed before then. The Hearing for appeal can be held at any time of the year, but it may be considered unfair to parents or young people if a hearing to decide on a placement for September takes place after the start of the academic year has already started, so going to this placement can often undermine a case for a child or young person to go elsewhere, if they have already started at the LA’s proposed placement. If parents are adamant that they will not send their child to the LA’s proposed placement, they can be left with no other option but to then educate them at home. With delays and other factors involved, this can amount to a child being out of formal education for a significant amount of time. In an attempt to try and reduce the number of appeals that this happens to, a few years ago, the Tribunal began hearing appeals in August without an oral hearing if both parties agree (i.e. ‘on the papers’ only and a hearing without the parties or their witnesses being present), thereby reducing the risk of the child or young person not starting the academic year at a placement on the first day of the Autumn term in September. However, with the advent of video hearings during the Covid-19 pandemic in March 2020, appeals can now also be heard exceptionally (again with both parties’ agreement) orally during August. This does not apply to all cases, however, and therefore sometimes parents or young people are forced to either accept the LA’s proposed school, privately fund a preferred placement, or educate the child or young person at home, until their appeal is resolved. This can also result in a child or young person starting at one school at the start of the academic year when the appeal is ongoing, to then transfer to another school once a decision is reached. If the school you are appealing for is an independent school then (if it is not a ‘section 41 ‘approved’ school) you will also need to provide proof that there is a place available at the school through a ‘Provision of Place’ form, signed and dated by the Headteacher of the school, which will be provided to you by the Tribunal on registration. Conclusion Dealing with the Tribunal’s timetable and fixing a hearing date can be a real problem sometimes. However, it is usually always important to try to think of any potential problems as far in advance as you can, because the LA or Tribunal often takes a long time to reach a decision and sometimes these decisions also need to be challenged for the overall good of the case. I will now tell you about the LA’s response to your appeal and preparing final evidence. LA’S RESPONSE TO YOUR APPEAL AND PREPARING FINAL EVIDENCE. Introduction It can be very interesting to see how the LA formally responds to your appeal; but it can then also be difficult to know how to deal with the next Final Evidence stage, when you have the chance to put in further documents. The LA’s Response to your appeal The LA’s Response is usually submitted by week 6 after registration. Theoretically, it should deal with your appeal in detail and answer it point by point. However, it is quite normal for the LA’s Response to be quite vague or ambiguous sometimes, to just recite the law generally, or to just refer to their wish to now obtain further reports or documents, which is a bit ironic sometimes, as they should be able to justify their original decision using the information already within their possession, before they reached a decision! The LA may choose to not oppose an appeal, for example, they may now agree to carry out an assessment or. reassessment; make an EHCP after an assessment; or change an EHCP. If that is the case and the LA has agreed to provide you with what you have asked for, the Tribunal will treat the appeal as decided in your favour and the matter can then be closed by you either withdrawing your appeal (not always advisable as this then leaves limited comeback), or by having both parties sign a ‘Consent Order’, which will then be treated as a decision of the Tribunal, once signed by the Tribunal. The ‘Working Document’ process When you are appealing against the contents of an EHCP, the LA should provide a ‘Working Document’ with their Response to the appeal. A ‘Working Document’ is essentially an electronic draft of the EHCP that goes between the parties with amendments each party is seeking and whether they are agreed or not – a document on which both parties have worked! The ‘Working Document’ may go back and forth a number of times and be used in conjunction with both side’s reports and information, in an attempt to narrow down the issues in dispute. The ‘Final Evidence’ stage If the appeal is not settled, the ‘Final Evidence’ stage allows you to submit other information that you were unable to include with your original appeal, such as more up-to-date documents, new reports or any other relevant new information which has come into being. The LA will also be afforded this same opportunity and may take this opportunity to submit up-to-date reports of their own or statements from relevant people or professionals. After seeing all of your evidence, the LA may contact you if they feel the appeal can be settled without the need for a hearing. The Tribunal actively encourages parties to work together to try and settle an appeal before the hearing. The date for ‘Final Evidence’ will be set when your appeal is registered but, as a general rule, will usually be a few weeks after the date for the LA’s Response to the appeal. This should give you enough time to consider the LA’s Response and submit further information and also allow the LA time to engage assessments and gather further information. In my experience, at this stage, it is good practice to respond to points the LA have raised, if any, in their Response to the appeal. This will include forwarding relevant LA commissioned reports to any professional experts you have involved (e.g. having a private EP review the LA’s EP report), or getting other relevant people or professionals (e.g. a school) to also review the LA’s Response to your appeal and ask them to make comments on it. You may also wish to submit a commentary on the LA’s Response to your appeal. Although this is, seemingly, your last chance to submit evidence, you can also submit ‘Late Evidence’. This is any evidence that is relevant to the case, but that has only become available after the ‘Final Evidence’ deadline has passed. To submit ‘Late Evidence’, you must submit a ‘Request for Change’ to have it admitted and the LA (who can also submit ‘Late Evidence’ as well) will be allowed the opportunity to object to it being considered. ‘Late Evidence’ will usually be accepted if you send it to the Tribunal and the LA to arrive at least a week (i.e. 5 working days) before the hearing. After the deadline for ‘Final Evidence’, the Tribunal can still accept ‘Late Evidence’, but usually only if there would be significant prejudice to the child or young person if the evidence was not admitted. Case Review Form The Tribunal has introduced a Case Review Form (SEND45) that must be submitted by both parties after the ‘Final Evidence’ deadline. This is for both sides to set out headline points left for the Tribunal to determine, as well as the appeals’ readiness for hearing. Other than listing the points left to be determined, you must also set out your details, whether the child will be attending the hearing, details of any Representative or Helper and details of any witnesses, up to a maximum of three. You must also include on this, any alternative timetable agreed by the parties. This form must be lodged by the same deadline as the bundle, and both parties must also include the most recent version of the Working Document. Conclusion Dealing with the LA’s Response, Final and Late Evidence stage needs to be looked at with one eye on timing and one eye on the appeal timetable. So too should the ‘Working Document’ process. I will now tell you about preparing for the hearing. |
|
