Appeals and mediation
What is an appeal
You can appeal to the SEND Tribunal if you are unhappy with a decision made in relation to an Education Health and Care (EHC) needs assessment or an Education Health and Care Plan (EHCP).
The SEND Tribunal is an independent national tribunal which hears parents' and young people's appeals against Local Authority's (LA) decisions about the special educational needs (SEN) of children and young people.
You may hear SEND Tribunal being called SENDIST or First Tier Tribunal.
There are no fees for parents or young people to pay. The SEND Tribunal has the power to order LA's to carry out EHC needs assessments, issue or amend existing EHCPs. LA's must comply with the orders made by the SEND Tribunal.
You must appeal within two months of the date on the letter from the LA that gave you the right to appeal (the decision letter, for example, the letter you received with the Final EHCP). If you are out of this time please contact us for advise.
SENDIST Tribunal is governed by the law, and has to follow the interpretation of that law by higher courts in judgments about previous SEN disputes. The SEND Tribunal must have regard to the SEN and Disability Code of Practice which advises schools and LA's on identifying and making provision for children with SEN.
The SEND Tribunal looks at the evidence put before it and decides whether the LA decision followed the law and the Code of Practice. It will make a decision based on what is right for the child or young person at the date of the hearing. You will then hear their decision up to 10 days after your hearing date.
The different stages of an appeal are explained further on.
Types of appeal
You can appeal against a decision that the LA has made. It may be that:
- Surrey have refused to assess your child after you requested an EHC needs assessment
- Surrey have refused to issue an EHCP after they have assessed your child
- Surrey want to cease your child's EHCP.
You may also appeal if you are not happy with:
- the contents of the EHCP (so you would be appealing Sections B and F of the EHCP)
- the school named in Section I of the EHCP (so you would be appealing the placement named in the EHCP or 'type' in Section I).
- you can also appeal the Health (Sections H1 and H2) and Social Care (Section D) section of an EHCP and this is called an extended appeal.
Visit our page on the different types of appeals for further information.
The different parts of an appeal
We also explain the parts of an appeal which includes the email/letter you get from Tribunal, the key dates, the LA response, attendance forms. working document, evidence, how to request a change, witnesses, Case Review Form position statements, and the Bundle.
What to do first (Legal Aid and Mediation)
Are you entitled to Legal Aid?
Some parents may be eligible for free legal support called Legal Aid for educational law matters. Visit the dedicated page on legal aid linked below for more information.
Legal Aid for educational law matters
Mediation
The first part of the appeal process in most appeals is to consider Mediation. If you are appealing placement only (Section I only appeal) you do not need to consider mediation but you can attend if you wish. You would contact Global Mediation as outlined below.
Consider mediation means that you have to think if you want to meet with the LA for a mediation meeting or not.
You then call the mediation company Global Mediation on 0800 064 4488 and state whether you want a meeting booked (which the LA must book within 30 days) or go straight to appeal so you are asking for a certificate.
Further information on mediation can be found on the dedicated page linked below.
The appeals process - step by step
1. The LA writes to you (parent/carer or young person) giving the right to appeal in a decision letter. (This gives you 2 months from the date on the letter to complete and submit the appeal form below).
2. You will need to call Global Mediation (the company that Surrey use for their mediation) on 0800 064 4488 or 020 8441 1355 within 2 months of the date on the letter. (Visit our mediation page for further information). Please note: If you are appealing Section I only (the placement) you do not need to call Global Mediation, you will just complete the SEND 35 form linked below.
You only need to consider mediation:
If you want to attend mediation then say this when you call Global Mediation. They will then contact Surrey County Council to book a meeting within 30 days. Someone with a decision making power must attend (a decision maker). If Surrey do not reply to Global then they will issue a certificate within 30 working days.
If you don't want to attend mediation and appeal straight away then tell Global Mediation this who must issue you with a certificate within 3 working days. (This gives you 1 month from the date on the certificate to complete the appeal form below).
3. You must complete the next stage by the latest day you have from above, for example whichever date is the latest out of the 1 month from the date of the certificate or the date 2 months from the letter from the LA.
4. Complete the SEND 35 or the SEND 35a form (GOV.UK)
We also have webinars which can help you to complete the appeal forms.
Remember to include everything listed in the checklist section:
- Section 8 on the SEND 35a form
- Section 10 on the SEND 35 form.
If these are not attached you could have your paperwork returned and the appeals process has NOT started otherwise the LA maybe asked to send the missing information on your behalf .
Things to remember
- Write in the subject line of your email 'New appeal' to ensure it is dealt with quickly
- Send your email to send@justice.gov.uk (please note the address on the old forms was different to this address but this is the address to use. You use this address for everything after your appeal is registered)
- Keep copies of everything you are sending
- Add a delivery and read receipt to your email if you can.
Between 10 and 20 working days of submitting your appeal form, you will receive a confirmation email from the tribunal service that your appeal has been successfully lodged. At this point the tribunal service will also make the LA aware you that have lodged your appeal against them, but it could take another 20 days for the LA to be aware.
The email will have some attachments to it; the parent registration letter, advice on how to communicate with the Tribunal Service, will explain the tribunal process and give dates by when actions need to be taken by yourself and the local authority.
After your appeal has been registered, any further correspondence and/or paperwork you send in, must be sent to both the send@justice.gov.uk and to send.appeals@surreycc.gov.uk.
You can request to change your appeal any time using the request to change form (GOV.UK).
The Courts number is 0300 303 5857 should you need to contact them. Again, make a record of your call for your records.
The appeal forms and how to complete and send them
If you believe an appeal is necessary you need to make sure you complete the correct form, each are explained below:
- SEND 35a - use this form to appeal the Local Authority's (LA's) decision not to secure an EHC needs assessment (EHCNA) of a child or young person (called a Refusal to Assess). This form can be used by parents or those with parental responsibility or by a young person aged 16 to 24.
- SEND 35 – use this form if you:
- disagree with what the plan says in Section B
- disagree with what the plan says in Section F
- disagree with the school / college / Institution named in Section I
- refusal to issue
- refusal to re-assess
- refusal to amend
- cease to maintain.
And:
- are asking the tribunal to make a recommendation for Health and Social Care needs
- disagree with what the plan says about health or
- disagree with what the plan says about social care.
Help with completing an appeal form
Once your appeal form is complete - where and how to send it
For new appeals, please send your appeal form (SEND 35 or 35a) and attachments to send@justice.gov.uk and add the words 'new appeal' to the subject box. Remember that further evidence can be sent once your appeal is registered.
You should get an automatic email response which means SENDIST has your email.
You then need to wait up to 10 days to hear if your appeal has been registered. If you do not hear within this time you should call on 0300 303 5857 for an update.
Once your appeal is registered
Further information on what to do when your appeal is registered can be found on the dedicated page linked below. This explains each element of the process from the email from SENDIST when your appeal is registered, the key dates, how the LA response, how to complete the attendance forms, what the working document and bundles are, evidence deadlines and what could be sent, how to request changes, how to call a witness and summary forms and documents.
Once you have sent your SEND 35 or 35a appeal form off it should be registered in about 20 working days, if everything was included. You will receive an email should any items be missing as soon as possible, as the appeal may not be registered without all of the necessary information.
If your emails to SENDIST (First Tier Tribunal) are received you will get an automated response, (there is no need to call them to check your email has arrived if you get this).
We advise that you start making a record of all the evidence you send from this point.
Once your appeal has been registered
Important information to consider that may be relevant to your appeal
Placement only or Section I only appeals
Schools challenging the local authority
Local authority tribunal officers
VCMH, JADR, Case Review Hearings
Video Case Management Hearing (VCMH)
The purpose of a VCMH is to gain clarity and direction from the Judge when things have become stuck or very confused. This is in no way a final Hearing.
Often, the Tribunal Judge calls this type of Hearing because they can see that things are unclear and not properly ready. Occasionally they may lead the Judge to determine there is still so much work to be done, that he or she decides to postpone the Hearing.
If a VCMH is arranged, you will be sent details of how it works and what to do. Everyone is given the log in details for a Video Case Management Hearing. The Judge will give everyone an opportunity to speak and the call will last approximately 30 minutes.
Either party can seek a VCMH, for example, you might seek one if you believe the LA is not doing what is required of them within the appeal process.
Parents can ask for a VCMH as early as they like after successfully lodging their appeal but after the LA response however the Judge can refuse and there must be good reason.
This route can be particularly helpful when the appeal is mostly about evidence gathering. If your appeal is at least in part about the LA's failure to commission specialist assessments for the purpose of identifying the extent of your child's educational needs, then a VCMH may be very helpful in getting these assessments started.
Following the VCMH the Tribunal will send an Order to both parties confirming what the Judge has ordered each party to do and by when.
There are sometimes a Telephone Case Management Hearings (TCMH) but these are the same as above just on the phone.
Judicial Alternative Dispute Resolution (JADR) Hearing
These Hearings are for Section I only appeals of an EHCP. The JADR Hearing will be listed after the final evidence date and approximately 5 days before the date of the final hearing. They last about 1 hour.
The purpose of the JADR Hearing is to support parties to resolve their disputes by agreement. At the Hearing the Judge, will consider how to assist the parties to reach an agreement.
It may be possible for the Judge at the JADR Hearing to provide a view as to whether either party is being unrealistic, either in respect of the evidence provided to support the placement they propose or the grounds of Appeal or response. In some cases, it may be possible for the Judge to express an opinion as to the strength or weakness of the appeal or response (or parts of them).
These Hearings are private and confidential. The Judge who conducts the JADR Hearing will not conduct the final Hearing, (if there is no agreement). If the Judge expresses a view about the strength or weakness of the Appeal or response, or about the strength of the evidence, that is not binding on the parties, but it is hoped that it will help them to reach their own agreement.
Anything said at the JADR Hearing should be kept confidential, will not be recorded in the Order following the JADR and should not be referred to after that Hearing.
The Judge may issue a Consent Order if an agreement is reached. If the parties are not able to reach agreement at the JADR Hearing a short report will be prepared identifying the issues to be decided by the Tribunal and relevant legislative provisions to be taken into consideration.
The LA may send an Education and Inclusion Service Manager to this Hearing/meeting.
Case Review Hearing (CRH)
SENDIST will list certain types of appeals for a Case Review Hearing (CRH). These will be cases which involve appeals against the contents of an EHCP and also Extended Appeals where the Tribunal are asked to decide and make recommendations on issues concerning Health and Social Care.
A CRH is a form of judicial care management allowed under Tribunal Procedure (HESC) Rules 2008 Rule 5.
These are held by video after the return of the Case Review Form (CRF) and evidence bundle deadline. They will last about an hour.
The purpose is for the Judge to consider whether the appeal is ready to be heard and decided by the Tribunal, deal with any outstanding issues between the parties and estimate the amount of time required at any oral hearing for parties to present any additional evidence. It will rely on the responses to the Case Review Form to do this and the Bundle.
A LA Tribunal Officer will attend.
The day of the hearing
At present, hearings are held virtually.
The page on virtual hearings linked below provides instructions on how to join the cloud video platform and guidance for video hearings from SENDIST.
After the hearing day
Unfortunately you will not get an answer from the Judge on the day of your hearing and you will have to wait up to 10 days for and order that will outline what was said during the hearing and then their decision will be near the bottom of the letter.
Note: There is talk of a trial which is about Judges making a decision for section I only appeals on the day but this is only a trial and hasn't stated yet. You will be told if this happens at your hearing.
The LA must carry out any tribunal orders within a specific time after the tribunal decision is issued. The requirements would be as follows:
- Start an EHC needs assessment/reassessment within four weeks,
- Make an EHCP within five weeks,
- Make changes to an EHCP within five weeks,
- Change the school named in line with the parents' wishes within two weeks,
- Continue an EHCP immediately,
- Cease an EHCP immediately.
If there is a combination of the two, for example a contents and a section I appeal then the timescale would the later date so would be 5 weeks (not 2 weeks).
If there was a Working Document (so a contents appeal) then the Tribunal Officer should make a 'clear copy'. This means that any comments will be removed, all the writing agreed will be changed to normal text and everything that was agreed to be deleted will be removed. Your case will be closed to the Tribunal Team and everything passed to the area SEN team for them to get the EHCP signed off and then sent to you. They will also be told the timeline for this to happen - 5 weeks!
It is worth:
- checking the changes to the Working Document have been made as you understood them
- asking to be copied into the email to the SEN Team
- keeping a date of the 5 weeks (or any other dates) and chasing if you have not heard.
Any issues can then be followed up in writing.
Withdrawing or stopping an appeal
A number of appeals won't get to the hearing date because the parties come to an agreement or the Local Authority (LA) agrees to what the parent or young person is asking for.
If the LA ask you to complete a SEND 8 - 'Withdrawal of an Appeal' form then we would advise not to do this. The link below will explain how to stop a hearing happening when the LA agree to your hearing before their response (called unopposed appeal) or agree to your hearing after the R1 (concede to your appeal).
The SEND 8 is only completed by a parent if requested by a Judge or you have appealed and have changed your mind, for example the LA were naming a school you are now happy with.
Depending on where you are in your appeal timeline would depend on whether it is an Unopposed or an Opposed Appeal. The dedicated page below provides further information on withdrawing or stopping an appeal.
Some times part of an appeal is agreed for example a school is named you are happy with. In these cases an email would be sent by the LA to outline this. Consent Orders which are explained further in this link are only used when every element is agreed.
Withdrawing or stopping an appeal
How do I contact SENDIST/Tribunal?
If you are not being represented in your appeal and need to contact Tribunal, their number is 0300 303 5857. They can also be contacted by email send@justice.gov.uk.
There are also other ways to contact the First-tier Tribunal.
Remember to use the following subject when emailing:
HD(Hearing date) | EH(Appeal number) | (child's full name) | (the type of document or form you are sending for example EVIDENCE).
For example - HD11/11/2023 | EH936/23/00567 | Ruby Tuesday | New Evidence.