Ensuring your Tribunal appeal is brought against the correct EHCP - What steps to take?

The number of appeals being brought to the Special Educational Needs and Disability Tribunal continues to rise. As a result, many parents are experiencing significantly longer wait times for their final appeal hearings to be heard. This increase in delays is leading to a common but complex situation: Local Authorities issuing new Education, Health and Care Plans (EHCPs) during the course of an ongoing Tribunal appeal.

When Can This Happen?

A new EHCP may be issued during a Tribunal appeal for several reasons, including:

• An annual review of the EHCP takes place while the appeal is still ongoing, resulting in a revised and amended version of the plan being issued.
• A child or young person is transitioning to a new phase of education (e.g. moving from primary to secondary school) and the Local Authority issues an updated EHCP to reflect this change.

Why Is This a Problem?

A Tribunal appeal must be brought against the most recent version of a child or young person’s EHCP. If a new EHCP is issued mid-appeal, the version being appealed against is no longer valid. Continuing with the original appeal may therefore be considered as somewhat incorrect.
To address this, we have found the Tribunal often has a preference in terms of the process that should be followed. However, this process is not always straightforward.

For example, parents may be required to lodge a new appeal against the most recent version of the EHCP. This results in two concurrent appeals; one being brought against the previous EHCP and the other being brought against the ‘new’ and most recent EHCP.

This situation is both confusing and of course unsuitable. Only one appeal needs to remain live.

To resolve this, parents must request that the two appeals be consolidated into one, after the new appeal has been registered. Once consolidated, the Tribunal will proceed with a single appeal against the most up-to-date EHCP. Any changes or amendments to the description of special educational needs (SEN) or the provision set out in the EHCP will then apply to the most current version of the Plan — the one that is legally in force. All related and relevant issues are therefore addressed together leading to a more coherent decision.

This process can be lengthy and difficult to navigate. There are important procedural steps that must be followed correctly in order to ensure the appeal is valid and progresses efficiently. It is therefore preferable to seek advice as to how best to address the situation.

If your Local Authority issues a new EHCP during the course of a live SEND Tribunal appeal, we strongly recommend seeking legal advice as early as possible. Our team of specialist education law solicitors have extensive experience in guiding parents through the Tribunal appeal and consolidation process. We can help ensure that your child’s needs remain at the heart of the proceedings, without unnecessary delay or confusion being caused.

If you are currently in the midst of a Tribunal appeal and have any queries regarding a new EHCP being issued by your Local Authority during the process, or if you have any questions in relation to the appeal generally, our specialist education lawyers can assist with providing you with advice in respect of the steps that should be taken. Please contact our specialist education team on 0333 202 7175 or education@hcbgroup.com.