Consent orders and agreements

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 you are asking for, so they concede. Concede means that the LA are agreeing with what you are asking for in your appeal.

The LA can concede at any point. Before the LA officially respond to your appeal – send in their response / R1, then this is called an unopposed appeal. If the R1 has been sent, then this is an opposed appeal.

Unopposed appeal (before an R1)

Where the LA concedes before it has put in a response (R1), this is an unopposed appeal and the LA has to comply with the deadlines in SEN Regulations 45 for assessing, issuing or amending an EHCP:

Unopposed appeals

45.(1) This regulation applies where the child's parent or young person has appealed to the First-tier Tribunal and the local authority notifies the First-tier Tribunal that it will not oppose the appeal before it submits a response.

(2) The appeal is to be treated as if it was determined in favour of the appellant and the First-tier Tribunal is not required to make an order.

(3) Where the appeal concerned a request for a local authority to make an assessment under section 36 or a review or reassessment under section 44, the local authority shall carry out that assessment, review or reassessment within 4 weeks of the local authority's notification to the First-tier Tribunal.

(4) Where the appeal concerns the contents of the EHC Plan, then the local authority shall issue the amended EHC Plan within 4 weeks of the local authority's notification to the First-tier Tribunal.

(5) Where the appeal concerns the name of the school or other institution, or type of school or other institution to be named in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the local authority's notification to the First–tier Tribunal.

(6) Where the appeal concerns the refusal of the local authority to make an EHC Plan, then the local authority will arrange to make an EHC Plan within 5 weeks of the local authority's notification to the First-tier Tribunal.

(7) The local authority need not comply with the time limits specified in paragraphs (3), (4) or

(6) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or their parent or the young person during the relevant period;

(b) the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or

(c) any of the circumstances referred to in regulation 13(3) apply.

SENDIST will then write to us to confirm that the appeal has now been closed.

Opposed appeal (after the R1)

Where the LA has already put in a response (R1) and then concede/agree to your appeal, then the LA will complete a Consent Order Proforma (SEND 46) which you will sign.

The Consent Order Proforma (SEND 46) is only completed when all parts of the appeal have been agreed to.

If the LA ask you to withdraw by completing a SEND 8 (Withdrawal of appeal form) then this is not correct process. If SENDIST/Tribunal ask you to complete this form then you must.

If part of the appeal has been agreed then the LA would simply get your written agreement and forward this to yourselves and SENIDST to state part of the appeal has been agreed.

Then SEN Regulation 44 will apply:

Compliance with the orders of the First-tier Tribunal

44.(1) Subject to paragraph (3) or any direction made by the First-tier Tribunal, if the First tier Tribunal makes an order requiring a local authority to take any action, the local authority shall take that action within the period specified in paragraph (2).

(2) Where the order—

(a) dismisses an appeal against a determination to cease an EHC Plan, the local authority shall cease to maintain the EHC Plan immediately;

(b) requires a local authority to make an assessment or reassessment, the local authority shall within 2 weeks of the order being made notify the child's parent or the young person that it shall make the assessment or reassessment and shall—

(i) where, following the assessment or reassessment, the local authority decides that it is not necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, notify the child's parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date of the First-tier Tribunal's order;

or (ii) where, following the assessment or reassessment, it decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to those specified in regulation 13

(2) as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal's order; (c) requires a local authority to make and maintain an EHC Plan, the local authority shall—

(i) issue a draft EHC Plan within 5 weeks of the order being made;

and (ii) send a copy of the finalised EHC plan to the child's parent or young person under Regulation 14, within 11 weeks of the order being made.

(d) refers the case back to the local authority for it to reconsider, the local authority shall do so within 2 weeks of the order being made and shall either send a copy of the draft EHC Plan as required under Regulation 13 or give notice as required under Regulation 5 of any decision not to maintain an EHC Plan;

(e) requires a local authority to amend the special educational provision specified in an EHC Plan, the local authority shall issue the amended EHC Plan within 5 weeks of the order being made;

(f) requires the local authority to amend the name of the school or other institution or the type of school or other institution specified in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the order being made;

(g) requires the local authority to continue to maintain an EHC Plan in its existing form, the local authority shall continue to maintain the EHC Plan;

and (h) to continue and amend an EHC Plan, the local authority shall continue to maintain the EHC Plan and amend the EHC Plan within 5 weeks of the order being made.

If your appeal had a Working Document, this must also be sent.

SENDIST will then draw up an Order if the Judge is happy for the appeal to be vacated / stopped. If they are not happy with an element of the Appeal then they will write an Order to state this. This maybe because they feel that parts of the Working Document have not been agreed.

If the Judge agrees to the Consent Order then they will send an Order to state that the Appeal has now been closed / vacated.

The LA must comply with this Order and there are only a few exceptions to this:

(3) The local authority need not comply with the time limits specified in paragraph (2)(b) and (c) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or their parent, or the young person during that period of time;

(b) the child or their parent or the young person is absent from the area of the authority for a continuous period of 2 weeks or more during that period of time.

Please note: After a Consent Order is received the LA's representative (normally the Tribunal Officer) will share this with the SEN Team. If the EHCP needs to be finalised the TO will also do this within 2 weeks and then pass it to the SEN Team to sign it off.

The actions listed on the Order will be shared with those services from Surrey that are involved in the appeal, e.g. the Case Officer, the Senior and Area Manager and the Inclusion Lead, along with a timeline of when things should happen. You can request a copy of this so you can ensure that the order is being fulfilled.

If you need transport you MUST complete an online form ASAP. If there is an action listed in the Order the Tribunal Officer should complete this form, please ensure this happens ASAP. The Tribunal Officer should also let the Transport Team know that this is part of an order.