The process of appealing to the First-tier Tribunal (Special Educational Needs and Disability)
By Samantha Hale, Solicitor at HCB @hale_samantha
The number of EHCP related appeals registered in the First-tier Tribunal (Special Educational Needs and Disability)(the ‘Tribunal’) are on the rise with the latest Ministry of Justice statistics confirming that 8,579 appeals were registered between 01 September 2020 to the 31 August 2021. This is more than double the figure that were registered just 5 years earlier. With so many families having to resort to the Tribunal for help, what does the process of an appeal involve?
Submitting your appeal
The first task is to complete the Tribunal appeal form and to send to it to the Tribunal. There is more than one appeal form, so you need to make sure you are using the right one. The forms include sections for you to explain why you are appealing but you can set out your reasons in a separate document and attach that to the form. Once completed go through the checklist at the end of the form, to make sure you are enclosing all the necessary documents.
Once ready, send your appeal to the Tribunal either by email (which is preferable) or if sending by post, make sure you obtain proof of postage. Either way make sure it arrives within your deadline to appeal.
So long as you have included the necessary documents and have submitted your appeal in time, the Tribunal will register it. Once registered they will write to both you and the Local Authority at the same time and will provide you with Case Management Directions. The Local Authority will also be sent a copy of your appeal.
Case Management Directions are basically a timetable of who needs to do what, and by when for the remainder of the appeal process, so it is very important that you take time to read this document. It could take 2-3 weeks, and sometimes longer, for this document to be sent to you.
Local Authority response to the Appeal
The first deadline in the Case Management Directions is usually for the Local Authority to submit a written response to the appeal. This must be sent to you at the same time they send it to the Tribunal. They are likely to send with it, evidence which they are relying on. I recommend you read through it all when it arrives so you have time to think about what further evidence, if any, you need to counter argue the Local Authority’s grounds for opposing your appeal.
You and the Local Authority will be required to submit an Attendance Form to the Tribunal and the other person at the same time. This should confirm who each of you intends to call as witnesses.
Normally the Local Authority will call a witness from the child’s current school and/ or a witness from the school they want them to attend (where applicable and unless it is an independent school). There is a cap of the number of witnesses that can be called and any remaining witnesses up to that cap will usually be made up of experts such as an educational psychologist, speech and language therapist, and occupational therapist. A social worker may attend as a witness if you are appealing against the social care needs/ provision in an EHCP.
If you are appealing for an independent school to be named in your child’s EHCP you should ask for someone from the school to attend as one of your witnesses. If you have any independent experts working with your child you could also ask them to attend as a witness for you as well, although make sure you are aware of any fees they may charge to attend. If you are not sure who to ask to be a witness you can put ‘TBC’ on the form and inform the Tribunal and the Local Authority of the witness details at a later date.
The Case Management Directions will include a date for both you and the Local Authority to submit your final evidence, and again you must send it to the other person at the same time as sending it to the Tribunal.
I recommend you include with any final evidence, some further written arguments to support your appeal, setting out why the additional evidence you are submitting is important. You can also include in those written arguments, points to counter argue or clarify points made by the Local Authority in their response to the appeal. This is particularly important for appeals against a refusal to assess as those appeals are decided on the papers only.
Evidence cannot be accepted after the deadline for final evidence. However, you can submit a form to the Tribunal called a Request for Change to ask the Tribunal’s permission to submit late evidence. You must send this to the Local Authority first to see if they consent to it or not and then send it to the Tribunal, copying in the Local Authority.
The Local Authority must also follow this process if they want to submit late evidence. This process can also be used by you or the Local Authority if you want to request changes to deadlines set out in the Case Management Directions, or the Hearing date.
In appeals against the contents of an EHCP, or a refusal to amend an EHCP following an Annual Review, you will be required to set out the amendments you would like to be made to the EHCP in a Word version of the Plan. You will then need to send it the Local Authority to see if they will agree to any of the changes before the Hearing.
The Local Authority is required to send this to the Tribunal 10 working days before the Hearing date. However you can continue working on this document with Local Authority after that date so long as one of you sends an updated copy to the Tribunal the day before the Hearing.
For appeals against a refusal to assess, these will be heard on the papers only. You will be informed of the date that the Tribunal will be considering the case but you will not be able to attend unless you have requested and in person/ virtual Hearing and that request has been granted.
For all other appeals the Hearing will be held in person or virtually and you will therefore be required to attend. You will not find out the decision on the day of the Hearing and it could take up to 2 to 3 weeks for the decision to be communicated to you and the Local Authority in writing, after the Hearing date.