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New SEND Tribunal Direction

The Special Educational Needs and Disability Tribunal has substantially amended the directions that they provide at the outset of an appeal, for the first time in recent memory. This substantial change to the appeal process is likely to have a significant impact upon the way in which the Tribunal manages appeals and for parents bringing appeals.

At the outset of an appeal, the tribunal will make an initial directions order. The first direction in any appeal, is for the Local Authority to provide a response to the appeal. Previously, the Tribunal merely directed the Local Authority to provide a response setting out why they oppose the appeal, and the child’s views. In their more recent orders, the Tribunal now directs the Local Authority to provide the following:

  • The Local Authority’s response must address the legal test to be applied by the Tribunal in deciding the appeal.
  • The Local Authority’s response must also include the child or young person’s views on the issues in the appeal or, if that is not possible, an explanation as to why they have not been obtained.
  • Where the appeal is against a refusal to undertake an Education, Health and Care Needs Assessment (EHCNA) or a refusal to issue an EHCP, the Local Authority must provide;
    • All information it considers when making its original decision.
    • A copy of their reasons for the decision made by any relevant Local Authority Panel or decision-making body.
    • A copy of the child/young person’s attendance record at their educational placement for the last complete year.
    • Details of the provision, progress and outcomes at the SEN Support as recorded in the child/young person’s SEN Support Plan or equivalent.
    • A signed and dated witness statement from a member of the leadership team or SENCO at the educational placement they currently attend addressing the issues raised in the appeal.
    • A short chronology of events which lead to the appeal.
  • Where the appeal is against the wording of the EHC Plan, the Local Authority must provide the following in their response:
    • Four copies of all of the EHCP appendices.
    • A copy of the latest Annual Review document.
    • A copy of the reasons for the decision made by any relevant Local Authority Panel or decision-making body.
    • A copy of the child/young person’s attendance record.
    • Details of the provision, progress and outcomes at SEN Support as recorded in the child’s SEN Plan or equivalent.
    • A signed and dated witness statement from a member of the leadership team or SENCO.
    • A short chronology of events.
    • Confirmation of the name and type of educational placement that the parents or young person have requested named in the EHCP and what law the Local Authority applied in making its original decision.
    • If the Children and Families Act 2014 Section 38 is applied, specification as to which of the exceptions under Section 39(4) they rely upon in not naming the parent or young person’s request educational placement, with supporting evidence.
    • If the Education Act 1996 Section 9 applies, whether the Local Authority accepts that the parent’s preferred placement is suitable and can meet the child’s needs, whether they have evidence that to place the child at the school would result in unreasonable public expenditure.
    • The name and type of the Local Authority’s proposed educational placement.
    • For all educational placements the Local Authority must provide an OFSTED or ISI report, prospectus, SEN information report, consultation response from the school or college, a signed and dated witness statement from a member of the senior leadership team setting out any evidence concerning the child or young person’s placement at the school, and details of comparative costs of the two educational placements. This must include any relevant transport costs.
  • Where the appeal is in relation to a decision to cease to maintain any EHCP, the Local Authority must provide the following:
    • A copy of the latest Annual Review document.
    • A copy of the reasons for the decision made by the relevant Local Authority panel or decision-making body.
    • A copy of the child or young person’s attendance record.
    • Details of the provision progress and outcomes at SEN support.
    • A signed and dated witness statement from a member of the leadership team or SENCO at the educational placement they currently attend addressing the issues raised in the appeal.
  • Any evidence on which the Local Authority are relying in deciding that it is no longer necessary for the EHCP to  be maintained and specifically no longer requires special educational provision specified in the EHCP.
  • If the young person is over eighteen years old, confirmation that the educational or training outcomes in the EHCP have been achieved.
  • A short chronology of events.
  • Confirmation as to whether the parents, young person or alternative person are requesting amendments to the wording of the EHCP if the Tribunal were to decide that the EHCP must be maintained and the views of the Local Authority upon these amendments.

As can be seen by this substantial list, and to anyone who has previously undertaken an appeal with the Tribunal, the Local Authority are being asked to provide more evidence than ever before in their initial response to the appeal. It is our opinion that such a substantial change to the case management of appeals before the SEN Tribunal, is as a result of the Tribunal and parents having received completely inadequate responses to appeals from Local Authorities for a number of years.

When Local Authorities provide such inadequate responses to appeals, it results in the Tribunal receiving a high number of applications to bar the Local Authority taking up their precious and in demand time. Further, we anticipate that such a change to the amount of evidence and specification of the Local Authorities position, reflects the fact that many Local Authorities provide an inadequate response to the appeal due to the fact that they do not have any grounds for objecting to said appeal. By directing the Local Authority to provide their reasons for objecting to an appeal at this early stage, it is hoped that Local Authorities will be encouraged to concede appeals on which they do not have any reasonable prospects of success.

We hope that the Tribunal’s substantial change in case management, will control Local Authorities to a greater extent and prevent appeals running when there is simply no basis for it which will incentivise Local Authorities to properly consider their legal duties and the proper content of an EHCP at the appropriate stage therefore avoiding the need for parents to appeal in the first place. Such an outcome would be beneficial to all, saving parents and the Tribunal substantial costs and time and allowing young people to actually receive the special educational support and provision that they require in a timely manner.

As this change has only just been implemented, it will take some time to see how they affect the ongoing running of appeals however we are hopeful that this is a step in the right direction to avoid year long appeals in which Local Authorities concede very late in the day or indeed at the Hearing itself.

 

If you have an ongoing appeal upon which you require any advice, we would be happy to assist you and you can contact us on 0333 202 7175 or email education@hcbgroup.com. Equally, if you are considering appealing against a Local Authority decision or in respect of your child or young person’s EHC plan, a member of our specialist Education Team would be happy to provide guidance and advice.