Once your appeal is registered
Email from the tribunal explained
The email you receive from Tribunal after lodging an appeal, will include a Parental Registration Letter (sometimes called a Registration Parent Letter) which includes your key dates. Please read this letter carefully as it contains important information. This means that Tribunal have registered your appeal. The subject line will be:
"HD (date) – (then your appeal number EH) - new registration (your surname)".
There could also be an attachment on the email starting in ATT, for example ATT0002, and these are logos or pictures.
Moving forward
From now on any further documents and emails you send to Tribunal send@justice.gov.uk must be sent to the LA send.appeals@surreycc.gov.uk using the subject format below:
For example; 'HD 11/11/2023 | EH 936/23/00567 | Ruby Tuesday | New Evidence'.
This is broken down in to the following format:
- Current hearing date, for example "HD 11/11/2023"
- Appeal number which will start EH936/23/
- Child's/young persons full name
- Subject, for example EVIDENCE or SEND 7.
New parental registration letter
It is important to read this letter in full.
This is a letter about the appeal and as it states the Local Authority (LA) will now be aware that you are appealing but it could take up to 20 days before Surrey are actually aware that you have appealed.
It may be that your Case Officer will direct you to the Tribunal Team from now on (as they are in different teams).
Your appeal number is included in the letter at the top right, in bold. This is the number you must use from now on in all correspondence to the LA and SENDIST but this is explained under Case Directions.
The letter states you must email over a copy of your child's EHCP, the reports listed in Section K along with the decision letter from the LA (the letter you got with the final EHCP) if you did not send them with your Appeal Form. This must be done without delay / immediately.
it also states that the final hearing date is subject to confirmation by the Tribunal about 10 days before the hearing. This is when you should receive a letter to explain how you log onto the virtual Hearing called Notice of Hearing (NOH).
They do make every attempt to ensure that the appeal is heard on your Hearing date but things do change. Your case will be 'case managed' about three weeks before the hearing to ensure it is ready to be heard.
The letter also mentions paper hearings. If you would prefer a paper hearing where the Tribunal panels make a decision on the evidence you and the LA submit, both parties must consent to a paper hearing. You would complete a Request for Changes form (RFC form/SEND 7). It will be treated as an exceptional request and may lead to your appeal being concluded on an earlier date but remember that you won't be attending the Hearing.
The next page after the letter are the Case Directions.
Case Directions
It is important to read the Case Directions.
The Case Directions include a table of useful dates at the end called key dates. The directions set out the timetable for further action to be taken by you and the LA before the appeal hearing.
Final hearing date is at the top of the Case Directions as well as the last date of the Key Dates table.
From now on any further documents and emails you send to Tribunal send@justice.gov.uk must be sent to the LA send.appeals@surreycc.gov.uk using the subject format below (it does not mean that every email to the LA goes to SENDIST too):
For example; 'HD 11/11/2023 | EH 936/23/00567 | Ruby Tuesday | New Evidence'.
This is broken down in to the following format:
- Current hearing date, for example "HD 11/11/2023"
- Appeal number which will start EH936/23/
- Child's/young persons full name
- Subject, for example EVIDENCE or SEND 7.
There should be a blank Case Review Form, guidance on the Working Document and the Bundle.
The Case Directions then goes on to outline what to do at different stages, detail of what is needed and detail of what you will need to provide as the parent - they are numbered 1 to 10. These are linked to the Key Dates table.
Can't attend a virtual hearing
If you need a face to face hearing for any reason, then you must request this and explain why, on a SEND 7/Request for Change form (sending it to the LA first). If a face to face hearing is agreed then you won't get the location and time of the hearing until a few weeks before the date of the hearing (we have known it to be a week before). The hearing will most likely be at the Royal Courts of Justice in London.
Keys dates within the tribunal registration letter
These key dates are really important.
The parents registration letter contains all the information and dates you need leading up to your final hearing, please note that these are not in order.
There is a Key Dates box at the end of the letter that summarises the dates and times, for example when documents are due in. It is important to make a note of them all.
Note the time stated in each box:
| Action | Action and party required to respond |
|---|---|
| 1 | The Local Authority (LA) response to the Appeal The LA must send its response to the parent(s), young person or alternative person and the Tribunal so that it is received by 12 noon on 24 April 2024.
|
| 2 | Final Evidence Deadline You and LA must send to each other and to the Tribunal any final evidence - such as further written information, including professional reports - upon which you intend to rely as soon as it is available. No further evidence will be accepted without express permission of the Tribunal from either party after 12 noon on 20 May 2024. Late Evidence - any evidence after this date needs to be requested. The late evidence will only be considered at the final hearing and so will delay the start of the hearing or result in its being adjourned, as the Tribunal will require time to read the late evidence. |
| 3 | Completion of the Case Review Form (CRF) You and the LA must send a completed Case Review Form to the Tribunal and each other to be received by 12 noon 27 May 2024.
|
| 4 | Issuing the Final Tribunal Bundle The Tribunal Bundle is all the evidence from both yourselves and the LA. |
| 5 | The date of the final hearing, 26 June 2024. |
Each action on the Case Directions is explained below:
The Case Directions explains each action needed by you as a parent or Surrey LA in more detail. These are explained below. Some are linked to the Key Dates box but there is extra information to be aware of.
The LA make a response to your Appeal 6 weeks after it is registered. This is called an R1 and is their written response to your appeal. It will state whether they are opposing your Appeal or not. (This means whether they agree to your Appeal or not, for example, the Appeal will continue if they oppose it).
This response should include a summary of the facts and may be very brief, the LA will address the issues in detail at the hearing.
Sometimes their response can be extremely negative and disheartening reading. It may even include information you consider inaccurate or misleading. You can send a counter-response addressing these issues by replying to all.
You can, if you wish, seek a meeting with the person from the LA who is dealing with the case at this point, a Tribunal Officer. This can sometimes be a very helpful way forward. You would do this by emailing send.appeals@surreycc.gov.uk
In the first six weeks after your appeal was registered the Tribunal Team should meet with the area SEN team managers to discuss the appeal and whether they will concede (agree with your appeal) or continue with the appeal.
Along with the R1 you will get:
An electronic copy of the EHCP (if you are appealing contents). This is called a Working Document which is explained further on in this section.
The LA must also provide all the evidence listed in the Appendix at the end of the Letter. It is a long list depending on the type of appeal you have. You can highlight if these are missing after this date.
This is any evidence you wish to submit that is relevant to the appeal.
You would have submitted evidence when you lodged your appeal but you may wish to submit further evidence. Both parties must submit evidence they wish to rely on, as soon as it becomes available and not hold onto it until the last minute. The LA will then have the opportunity to review their position. This should help to resolve issues ahead of the hearing.
All further evidence must be sent to both the Tribunal and the LA, together with a covering email or letter explaining the relevance of each piece of new evidence. You could say something like:
"This is further evidence we wish to be considered. We believe it is a clear example of (add your own reasons to this sentence)"
Or you could start with "It highlights, It identifies a need, It recommends", and so on.
- Evidence might include school progress reports, school incident records, emails from the school, minutes from meetings and medical reports or letters. If appropriate, it could even include a video or audio recording of your child.
- If you are finding it difficult to obtain a very relevant document that has been produced about your child, you can ask the Tribunal Judge to order or direct the relevant body to provide that document. (You would need to do this via a Request for Changes Form – a SEND 7 – see our Information Sheet on this).
There are different examples of evidence to help.
Please note that you should send this form which is included with the Registration Letter. All witnesses must be emailed before adding their names to the Form. We have some more information on witnesses.
The LA must produce the Bundle which is all the evidence they sent plus what you sent. This can be a large document.
The LA send one copy electronically to yourself and one to the Tribunal. They should also send you a hard copy.
If there is an issue with emailing a copy then the LA would have to send 4 hard copies to Tribunal and one to you. If this is this case the copies must arrive before the Bundle is due.
Your case will be reviewed by the Tribunal in a two week period. This two weeks is normally a week after the Bundle and Case Review Form is due. You may be required to attend a Case Review Hearing to discuss the progress of the appeal with a Judge by video during this fortnight. You will be given details of any such hearing usually 2 weeks in advance.
If the Tribunal considers that your appeal is not ready to be heard or decided by the Tribunal, your hearing date will be vacated (moved) and further directions will be issued by SENDIST.
You may be asked to participate in a Judicial Alternative Dispute Resolution (JADR) hearing with a Judge to see if you can reach agreement in the appeal.
This is the date your hearing will be heard. At the present this will be a video hearing. You should ensure you are free all day but the joining instructions, the Notice of Hearing (NOH), will arrive 10 days to a week before the Hearing. We have some information on virtual hearings and how to log on.
Withdrawing or stopping an appeal. It also explains unopposed and opposed appeals and the time frame that the LA should follow.
To request a change during a Hearing you must complete a SEND 7 Form.
The Tribunal has power under the Tribunal Procedure Rules 2009, Rule 8 to strike out all or part of the party's case or to bar a party from further participation in the proceedings if they do not comply with the Tribunal's directions. A Party would be the LA or yourself.
Examples could be not following a direction from a Judge.
LA Response Form (a R1)
The LA make a response to your Appeal 6 weeks after it is registered. This is called an R1 and is their written response to your appeal. It will state whether they are opposing your Appeal or not. (This means whether they agree to your Appeal or not, for example, the Appeal will continue if they oppose it, unopposed means they agree with what you are asking. More info below on unopposed appeals).
This response should include a summary of the facts and may be very brief, the LA will address the issues in detail at the hearing.
Sometimes their response can be extremely negative and disheartening reading. It may even include information you consider inaccurate or misleading. You can send a counter-response addressing these issues by replying to all.
You can, if you wish, seek a meeting with the person from the LA who is dealing with the case at this point, a Tribunal Officer. This can sometimes be a very helpful way forward. You would do this by emailing send.appeals@surreycc.gov.uk. It maybe that there is no Tribunal officer allocated for a number of weeks.
In the first six weeks after your appeal was registered the Tribunal Team should meet with the area SEN team managers to discuss the appeal and whether they will concede/unoppose your appeal (agree with your appeal) or oppose your appeal / continue with the appeal.
Along with the R1 you will get:
An electronic copy of the EHCP (if you are appealing contents). This is called a Working Document and you should receive all the information outlined in "Appendices to be sent by LA with their R1'.
Unopposed appeals
This is where the LA agree with what you are appealing and the Hearing will not happen. This information is only when the LA unopposed your appeal in the first 6 weeks after your appeal was registered. No Order will be sent but the LA's Tribunal Team will tell the SEN Team.
The SEND Regulations 2014, outlines the timeline that LA then must follow depending on what you were appealing:
(All dates are from the day that the LA told you and SENDIST that the appeal was unopposed)
Appeal against LA refusing to assess
The LA must notify you in writing within 2 weeks that they are going to assess then:
- if the LA decide not to issue an EHCP following the assessment, they must give reasons for the no to issue, as soon as practicable, but within 10 weeks of notifying the Tribunal, or
- if the LA agree to issue an EHCP following the assessment, they must send the finalised EHCP as soon as practicable, but within 14 weeks of notifying the Tribunal.
Appeal against LA refusing to reassess
The LA must notify you in writing within 2 weeks that they are going to reassess then:
- if the LA then decide not to amend the EHCP after the reassessment, they must give reasons, as soon as practicable, but within 10 weeks of notifying the Tribunal, or
- if the LA agree to amend the EHCP after the reassessment, they must send the finalised amended EHCP as soon as practicable, but within 14 weeks of notifying the Tribunal.
Appeal was for section I only
The LA must send you the final amended EHCP within 2 weeks.
Appeal was section I AND the contents of the EHCP
The LA must send you the final amended EHCP with the changes and naming the agreed school within 5 weeks.
Appeal against refusing to issue an EHCP
The LA must send you a draft EHCP within 5 weeks THEN send you the final EHCP within 11 weeks.
Appeal was against the LA ceasing the EHCP
The EHCP must continue to be maintained during the appeal. If the LA have agreed to amend the EHCP this must be done within 5 weeks.
Appendices to be sent by LA with their R1
This information explains what the LA need to send along with their response (R1) which is by 6 weeks after your appeal has been registered.
You will find the appendices at the end of the Registration Letter, after the Case Directions and Key Dates table but before the blank forms that you will need to complete in the appeals process.
It is important to read this letter carefully.
Depending on the type of appeal you have, will depend on what the LA must sent along with their response form (R1) as outlined below.
LA refused to assess for an EHC needs assessment or LA said no to reassessment or LA refused to issue an EHCP
The LA must provide with its response (R1), the following information:
- all the evidence and information they had when they made their decision.
- a copy of the reasons for the decision. This could be the Governance Board notes or L-SPA's notes.
- a copy of your child/young person's attendance record at their nursery / school or college for the last year.
- details of the provision, progress and outcomes at SEN Support as recorded in your child/young person's SEN Support Plan.
- a signed and dated witness statement from a member of the leadership team or the SENCo at the setting your child attends. This needs to address the issues raised in the appeal for example, if your appeal is a refusal to assess the statement should outline why they feel a needs assessment is needed. This would link to the evidence sent in point 1.
- a short chronology of events which lead to the appeal (one side of A4 maximum).
The Contents of the EHCP (sections B and F)
This is when you do not agree with the wording of the EHCP of Section B or Section F. This would be after you've received a final EHCP:
The LA must provide with its response (R1), the following information:
- all the evidence and information they had when they made their decision.
- a copy of the reasons for the decision. This could be the Governance Board notes or L-SPA's notes.
- a copy of your child/young person's attendance record at their nursery / school or college for the last year.
- details of the provision, progress and outcomes at SEN Support as recorded in your child/young person's SEN Support Plan.
- a signed and dated witness statement from a member of the leadership team or the SENCo at the setting your child attends. This needs to address the issues raised in the appeal for example, if your appeal is a refusal to assess the statement should outline why they feel a needs assessment is needed. This would link to the evidence sent in point 1.
- a short chronology of events which lead to the appeal (one side of A4 maximum).
- A full copy of all the EHCP appendices (so all the reports and assessments listed in Section K of the EHCP) if not already provided by yourselves when the appeal was registered.
- A copy of the latest Annual Review documents (if the right of appeal is triggered following an Annual Review).
Section I (the name of the placement in Section I or if TYPE is named in Section I:
The LA must provide with its response (R1), the following information:
- all the evidence and information they had when they made their decision.
- a copy of the reasons for the decision. This could be the Governance Board notes or L-SPA's notes.
- a copy of your child/young person's attendance record at their nursery / school or college for the last year.
- details of the provision, progress and outcomes at SEN Support as recorded in your child/young person's SEN Support Plan.
- a signed and dated witness statement from a member of the leadership team or the SENCo at the setting your child attends. This needs to address the issues raised in the appeal for example, if your appeal is a refusal to assess the statement should outline why they feel a needs assessment is needed. This would link to the evidence sent in point 1.
- a short chronology of events which lead to the appeal (one side of A4 maximum).
- A full copy of all the EHCP appendices (so all the reports and assessments listed in Section K of the EHCP) if not already provided by yourselves when the appeal was registered.
- A copy of the latest Annual Review documents (if the right of appeal is triggered following an Annual Review).
- Confirmation of the name and type of educational placement that you have requested is named in the EHCP and what Law the LA applied in making its original decision to not name your preference.
- If the LA have not named your preference of school as long as it is one of the following (listed under the Children and Families Act 2014):
(a) a maintained school
(b) a maintained nursery school
(c) an Academy
(d) an institution within the further education sector in England
(e) a non-maintained special school
(f) an institution approved by the Secretary of State under section 41
Then the LA must state which exceptions they will reply on under Children and Families Act 2014, Section 39 (4):
(a) it is unsuitable for your child
(b) it would result in the inefficient education of other pupils (so other children would be affected by the placement taking another child. This is normally used when the school are saying they are 'full')
(c) it would result in the inefficient use of resources (so the placement is too expensive or it would cost too much to make changes). - If the Education Act 1996, Section 9 applies:
Pupils to be educated in accordance with parents' wishes.
Then the LA will have to state whether they:
(a) accept that your preference of placement is suitable and can meet the child's needs BUT
(b) the LA will evidence that to place your child at that school would result in unreasonable public expenditure. - The LA have to provide the name and type of their proposed educational placement.
- For all the placements proposed by yourself and them, they must provide;
(a) The latest OFSTED report / Independent School Inspectorate report
(b) The prospectus
(c) The SEN Information Report (sometimes there is only a policy)
(d) The response received from the statutory consultation to your preference and the LAs named placement (the LA's would be the nearest suitable school that they feel can meet your child's needs)
(e) A signed and dated witness statement from a member of the senior leadership team or SENCo outlining any evidence concerning your child/young person's place at the placement
(f) Details of the placements costs for your and their proposed placement(s) along with supporting evidence for those costs. This must include any relevant transport costs.
Cease to Maintain an EHCP
The LA must provide with its response (R1), the following information:
- Full copies of all the EHCP appendices (listed in Section K of the EHCP).
- A copy of the latest Annual Review document.
- A copy of the reasons for the decision. This could be the Governance Board notes.
- A copy of your child/young person's attendance record at their nursery/school or college for the last year.
- Details of the provision, progress and outcomes at SEN Support as recorded in your child/young person's SEN Support Plan.
- A signed and dated witness statement from a member of the leadership team or SENCo regarding the ceasing of the EHCP.
- Any evidence on which the LA are relying in deciding that it is no longer necessary for the EHCP to be maintained and specially no longer requires the special educational provision specified in the EHCP.
- If the young person is over 18 years old, confirmation that the educational or training outcomes in the EHCP have been achieved.
- A short chronology of events which lead to the appeal (one side of A4 maximum).
- Confirmation as to whether your are requesting amendments to the wording of the EHCP (Sections B, Section F or Section I) if the Tribunal were to decide that the EHCP must be maintained and the views of the LA on these amendments.
Working document
The Working Document (WD) is an important part of a contents appeal. It is a Word version of the EHCP which will be amended by both parties in the run up to the hearing, it will go back and forth, like a game of tennis!
The WD should be sent along with the R1 and the LA Attendance Form but sometimes this is asked for earlier if your Hearing Day has been moved. It is the first date in the key dates box at the bottom of your Parental Registration Letter (the letter you got when the appeal was registered). It will state:
The LA must send its response, attendance form and an electronic copy of the EHCP to the Parents and the Tribunal so that it is received by (then a date).
When it states "electronic copy of the EHCP" this is what the Working Document is. It may only be Sections B and F or the whole EHCP in full. Whatever it is it must be in Word.
The SEND Tribunal directions (Parental Registration Letter) will include a deadline for when the working document with both parties' amendments needs to be submitted to the SEND Tribunal.
You should use the information below to mark your suggested amendments to the EHCP on the working document. You then send it to the Tribunal Officers Team send.appeals@surreycc.gov.uk (do look at our 'Checking a Plan' for help if needed).
Surrey LA should then come back to you accepting anything that they agree with or it may be that they suggest other amendments (again using the table below). The Working Document then goes back and forth between you and the LA before the hearing date. The idea is that the key issues which you and the LA disagree about are narrowed down to make the hearing much more efficient.
We have produced a webinar on the Working Document to show how it works.
Key for amending the working document
The Working Document is a draft EHCP of the relevant appealable sections for you to make your evidenced representations and changes using the key below. This will be sent to you as an editable Word document and will go back and forth between yourself and the Tribunal Officer, both updating the version each time until agreement has been reached. Anything not agreed will be taken to your appeal for the Judge to make a decision.
| Format | Meaning |
|---|---|
| Normal type | Original EHCP plan |
| Underlined type / | Amendments agreed by both parties |
| Bold type | Parents' proposed amendments |
| Parents' proposed deletions | |
| Italic type | LA's proposed amendments |
| LA's proposed deletions |
Other points to take into account
- Please ensure that you clearly reference all requested changes using footnotes (at the bottom of the page where the requested wording occurs), for example, Smith, EP, 28/02/2019, p.1, para. 5.
- Please do not use embedded comments or track changes.
- Please only use black type and Arial 12 pt for changes within the WD, though you can use a dark colour for any comments.
- Footnotes and other comments will be removed from the amended EHCP.
See 'Checking a Plan' – you need to look at the changes you feel are needed in the Plan. You need to go through all the evidence making note of the SEN (special educational needs) identified and the SEP (special educational provision) recommended. Make sure that all of this is in the EHCP and it is in the right sections. It needs to be clear and specific.
You only need to use quotes or even highlight the key points which show the relevant needs or provision. There is no need to copy large sections from professional reports.
If you are asking for a particular School or College placement do think about how the child or young person's needs and provision can show that this placement is needed.
If you are not able to reach agreement with the LA about the contents of the EHCP, the case will proceed to a hearing.
What is a footnote?
Footnotes appear at the bottom of the page. A number on the footnote matches up with a reference mark in the document.
How to add a footnote?
Put your cursor where you want to add a Footnote in the Working Document text. Go to 'References', then 'Insert Footnote'.
A small number will appear where your cursor was/where you wanted to Footnote, like this [1].
As you do the above, the page will jump to the bottom so you can type what you are referencing, for example, Smith, EP, 28/02/2019, p.1, para. 5.
The following key explains each part of the example above:
- Smith is the surname of the professional that wrote the report.
- EP is the type of report.
- 28/02/2019 is the date of the report
- p.1 is where the information can be found on Page 1 of the Report
- para. 5 is where the information can be found, in paragraph 5 of the report.
To delete a Footnote just delete the small number of the one you want to delete.
To Edit a Footnote then double click on the information at the bottom of the page that you want to edit.
Saving a Working Document
You must use save as and not save, as you need to rename the Working Document as the next version, for example, Version 2 or 3, for example:
- V.1 – LA to Parents (12/03/2022)
- V.2 – Parents to LA (16/03/2022)
- V.3 – LA to Parents (20/03/2022)
- V.4 – Parents to LA (21/03/2022)
Remember to add your reference at the top of the Working Document too before using the save as option.
Evidence
As you will see in the Registration Letter you would have received when your hearing was registered (the letter with the date of your hearing), you (or the Local Authority (LA)) also need to provide further information.
Please note this is not an exclusive list and some of the documents should be sent by the Tribunal Officer on behalf of the LA. If they do not send them it would be worth requesting them to be sent or sending them yourself as the lack of these types of evidence may lead to the appeal being adjourned and a decision delayed. Its reccomended to provide all written information, including professional and expert reports, upon which you intend to rely.
Examples of evidence for the different types of appeals
Table 1. Refusal to assess
| Type of evidence | What the evidence could provide |
|---|---|
| Position statement | See our guidance on this. Would show the background, what outcomes you want, express your feelings and wants and may include a timeline. As Refusal to Assess is on papers then this would include everything you want the Judge to know about the situation and your child, their needs and the provision you believe they need to meet those needs |
| Diagnosis letter/ paediatrician reports | Evidence of Special Educational Needs (SEN) or any recent changes to the child's medical condition or diagnosis |
| Provision map/IEP/ISP | Shows support the school has been putting in place prior to the Education, Health and Care Needs Assessment (EHCNA) request being made |
| Exclusion letter or Behaviour Support Plan if applicable | Showing behaviour displayed could be the result of unmet needs |
| School progress report | Shows progress made or not made with or without support(some positives or areas of development maybe evidence of lack of progress) |
| Team around the child/family (TAC/TAF) | Background information |
| Reports from professionals: Education Psychologists (EP), Occupational Therapist (OT), Speech and Language Therapist (SALT), Inclusion Team, Post 14 Team | Identify specific recommendations |
Table 2. Refusal to issue an EHCP
The types of evidence in table 1 is also relative to a refusal to issue an EHCP appeal along with the following items:
| Type of evidence | What the evidence could provide |
|---|---|
| Private EP report | Details of needs and provision required that were not identified in Education, Health and Care Needs Assessment (EHCNA) |
| Witness statement from school or any other professional involved in child's life | How the school cannot provide what is included within the EHCNA outline without funding timetable of support needed/ hours of support needed Also, outlining any needs/provision required not identified in the EHCNA |
| Voice of child | To capture the voice of the child (see our guidance on this) |
The LA should provide, with its response (R1 form), the following information:
- a copy of the child's attendance record at school for the last complete year
- details of the provision, progress and outcomes at SEN support and
- a short chronology of events (one side of A4).
Remember if you would like to have the hearing heard on Papers and you didn't tick the box on the SEND 35 you should send your consent to the appeal being concluded without a hearing by sending your written consent for the appeal to be dealt with on the papers and include the LAs response to this happening. (You would compete a SEND 7).
Table 3. EHCP contents appeal – special v's mainstream appeal
The types of evidence in tables 1 and 2 are also relative to EHC plan content appeal - special v's mainstream appeal, along with the following items:
| Type of evidence | What the evidence could provide |
|---|---|
| Special school prospectus and Ofsted report | Outlining the facilities and provision in place which would meet the need of the child. Maybe able to highlight difference between one school and another |
| Report or witness statement from mainstream school | If applicable, outlining how a mainstream setting cannot meet need |
| Transport costs | If applicable, outlining difference in cost |
| Fees if independent special school | If applicable, outlining difference in cost |
| If independent school – a letter showing that there is a place available | Tribunal service will request this if not submitted – the form would be called Provision of Placement (POP) |
| Annual Review recommendations (if applicable) | What is the outcome of the Annual Review? Have the school been reviewing the EHCP adequately? Exhausted all options? Sought appropriate support of outside agencies? |
Table 4. EHCP contents appeal (sections B and F)
The types of evidence in tables 1, 2 and 3 are also relative to the EHC plan content appeal section B and F, along with the following items:
| Type of evidence | What the evidence could provide |
|---|---|
| Social care assessment or Child in Need report | Applicable if National Trial/Extended Trial |
| Any medical reports or letters issued after the EHCNA | Up to date information |
| Any professional reports issued since the EHCP was issued or last amended | Up to date information |
| Witness statements or reports from setting or professionals | Do these identify specific recommendations? The children and young people's needs - have these all been included? |
You would send all these if they were not sent with your SEND 35:
- Full copies of all the EHCP appendices which are all the reports and assessments listed in section K. You would also send any other reports or assessments that are not listed in Section K that you feel are necessary.
- The LA must send to you with their response (called a R1 form) an electronic (emailed) copy of your EHCP.
The copy of the EHC plan would form the Working Document and be sent in by the deadline outlined in the key dates on the Registration Letter. The Working Document will show any agreed amendments and proposed further amendments as well as all the issues remaining in dispute. This final version is sent so it is received at least 10 working days before the hearing.
Section I/placement appeals
The form states that you and the LA must state how much a placement at your proposed school or schools is likely to cost. The LA normally do this. You should include, where relevant, extra costs such as Transport, Additional Therapies, Additional Learning
or Specialist Teaching, Age weighted pupil unit costs, the cost of any respite care and any other costs relevant to the placement.
- If you are asking for an independent school, you must provide written confirmation signed by a representative of the school that a place is available and the date from which the place is available from.
- You must provide a copy of the most recent Ofsted report and prospectus or brochure for the school you wish to name in Section I. LA will do the same for their school.
- When you completed your SEND 35 you should have stated that you had contacted the school you wish to name to tell them and given the date you contacted along with any response. If you did not do this, you must do so and send the details to Tribunal and the LA within 10 working days of the date of the Registration Letter.
Cease to maintain appeal
- You must state whether you want the Tribunal to consider any amendments to sections B, F or I of the EHCP.
If you do, you must use a SEND 7 to ask Tribunal to consider these changes therefore changing the grounds of appeal to include B, F and or I. See our Information on 'How to complete a SEND 7'. Amendments would be discussed if the EHCP were to be maintained.
Please note that this is not a complete list of evidence needed in an appeal. You must read the Registration Letter in full.
Late evidence
Late evidence is anything after the Final Evidence Deadline.
Remember that all written or recorded evidence must be provided to the other parties (Tribunal and the LA) as soon as it becomes available.
No further evidence will be accepted after the deadline without the express permission of the Tribunal. For the evidence to be admitted as late evidence, the application must prove that the evidence was not available at the time of the final evidence deadline and that it is relevant to the issues in the appeal.
Requests asking for late evidence to be accepted after the final evidence deadline will only be considered at the final hearing and so will delay the start of the hearing or result in its being adjourned, as the Tribunal will require time to read the late evidence.
Request for changes (SEND 7) form
Once your appeal has been registered you must complete a Request for Change (SEND 7) Form (GOV.UK) to make any changes to your appeal. This could be to ask for:
- a witness summons (your witness has not confirmed they are attending)
- permission to amend grounds of appeal/response (so if your appeal is section I only and you want to include contents - sections B and F)
- you now want to include Health and Social Care sections in our appeal (this is called an Extended Appeal)
- permission to bring an additional witness (if you feel that you need more than three).
- you want to ask for an earlier hearing date (also know as an expedited hearing) a reason to ask for an earlier hearing could be that your child is out of school or that their mental health is being affected as not in school. Another reason would be that your child is going through a key stage transfer (so from primary to secondary for example) and no school will be named from next September or you are appealing because you aren't happy with the school named from September.
Your completed SEND 7 must be sent to the LA by email send.appeals@surreycc.gov.uk before submitting to SENDIST and you must give them 5 working days to reply. Their reply is then added to the form.
If there is no reply you must state this on the SEND 7 after 5 working days. If there is a reply you must include it.
Guidance on how to complete a request for change (SEND 7) form (PDF)
Once the form is completed send it to send@justice.gov.uk and send.appeals@surreycc.gov.uk.
Witnesses for appeals
The Tribunal need to know who you want to attend your Hearing to give evidence in your appeal. It is important that evidence is given by those who know your child/young person and are able to give information that is relevant to the areas of dispute.
Three is probably the maximum number that would need to give evidence in your appeal but witness statements can be submitted in place of personal attendance for any number of witnesses (these will need to be detailed). The Tribunal (SENDIST) has the power to limit the number of witnesses who attend as too many witnesses could prolong a case unnecessarily.
Your Registration Letter may mention an Attendance Form for both the LA and yourselves however this is now incorrect. The Form will be replaced by a Case Review Form or a SEND 45.
Special Educational Needs and Disability Tribunal forms can be found on GOV.UK website.
As a parent it is important to put down anyone that you think is important to hear from during your Hearing. Remember that there is no such thing as a hostile witness. It is also important to remember that not asking the appropriate witnesses could delay your hearing, for example if you are appealing Section I and the LA have named a School you don't agree with and want to name another school you should call both Schools.
Calling a witness
You must email the people/organisation that you are calling as a witness before completing the Attendance Form or the Case Review Form.
You would do this by simply emailing them using the following email template and entering your own details where the [ ] appear:
Dear [name of school],
We are writing to let you know that we have an appeal against Surrey County Council because [state why, for example, they have not named a school] and we are calling you as a witness.
My child's name is [add your child's full name] and their date of birth is [add this].
The hearing is on [add date]. The time, including the joining instructions will be forwarded once we have them. We will also send the Bundle via email once this has been received from the LA.
Please let us know the full name and job title of the person that will be attending.
We must tell the First Tier Tribunal of these details by [insert date] so please reply before this time.
Further information about calling a witness, useful information for witnesses can be found on the dedicated page witnesses for appeals.
Case Review Form (SEND 45)
The Tribunal has introduced a new Case Review Form to assist with case management and which will replaced the LA and parent Attendance Form.
Each appeal is reviewed by a Judge prior to your hearing day and this is called a Case Management Review. A Judge will look at your case and use the SEND 45 / Case Review Form to see if they feel it is ready to be heard. The forms purpose is to help the Tribunal manage cases as efficiently as possible, by getting an update on the case and to see if there has been any progress on agreeing issues that were in dispute ahead of the hearing.
The Key Dates table and the Case Directions (within your registration letter) has the date your form must be emailed in. You should send the completed form to Tribunal (send@justice.gov.uk) as well as the LA (send.appeals@surreycc.gov.uk).
The Case Review Form would be part of the Registration Letter. For a copy please email us at sendadvice@surreycc.gov.uk.
Case Review Form guidance (PDF)
The form includes a list of the remaining issues to be decided by the Tribunal.
You would also send in the latest version of the Working Document if you have one (have a Contents Appeal).
Any issues not identified at this stage in the appeal process will not be considered by the Tribunal at the hearing unless the Tribunal accepts that there are exceptional reasons for doing so.
The form must include the name and occupation of all your witnesses. It must confirm that all witnesses have provided a signed/ dated witness statement or report as written evidence in the appeal.
You can have up to three witnesses, additional witnesses will not be allowed to appear at a hearing without there being an exceptional reason and only with the permission of the Tribunal.
Both parties must confirm on the form whether they give their consent to the Tribunal deciding the issues in a Paper Hearing - an appeal where neither party attends and the panel make the decision on the basis of the written evidence submitted.
Position statement or chronology timeline
Before your hearing date, it is worth writing a position statement or chronology timeline which would be part of your evidence.
A position statement is a useful document which you may choose to write (it is not obligatory unless ordered by the court) in preparation for a court hearing. As the name implies, it is a written statement setting out your position, which at a first directions hearing, should briefly set out what it is you want the court to do, and why. At later hearings, position statements can also be useful to give both the court and the other party to proceedings pre-warning of any change in your position (for example, what you want to happen).
Position statements are useful for the court, in that they give the court a brief outline of your position in advance of the hearing. For yourself, they ensure there is a written record of your position at that time, ensuring points do not get forgotten in the stress of proceedings. They may help bring a case to an early conclusion if the other party accepts your position. It can be used to give you a brief plan of what you want to achieve at the hearing.
A position statement should be brief. ideally, no more than a couple of pages long. One important point: do not assume your position statement has been read by the judge when you walk into court. Paperwork gets mislaid, and time pressures may mean the judge has had little or no opportunity to read the paperwork. In a hearing, you should verbally set out your position (and a written position statement helps you ensure important points do not get forgotten in court). Judges will state if they have read all the paperwork at the beginning of hearings and will check that the witnesses have also received and read the bundle. (Remember to send your witnesses the Bundle once you receive it).
A chronology timeline is a timeline that is presentation of a chronological sequence of events along a drawn line that enables a viewer to quickly understand what has happened and when.
When should I write a position statement or a chronological timeline?
Technically, a judge should tell you when a statement is required, and the date by which it should be ´filed and served´. That said, people often write a position statement without such an instruction (and with no criticism for doing so without having been told to).
Filing means delivering or posting a copy of the statement to the court, while serving means delivering or posting a copy of your position statement to the other party or their solicitor if they are legally represented.
Some people have a worry that giving people advance knowledge of what you intend to say in court gives them an advantage. Making clear your position is more important, and so long as it is reasonable, practical and child focused, nothing is lost in giving the opportunity for people to think about it, rather than risk them missing those points, or your points being lost due to your not having the opportunity to express them in court, proceedings being rushed due to limited court time, or simply due to you feeling stressed.
Position statement
A position statement should be brief. Two to three pages is plenty. As with any statement, we recommend you keep content:
- Fair and Accurate: What you write in your statement must be true, fair and accurate.
- Simple: Your statement should be easy to understand.
- Timely: File and serve your statement so the court and other party receive it ideally before your last evidence date. Allow for the time it will take to be delivered if you are sending it by post. Just in case it is not delivered on time, take five copies to court with you. Hand in your position statement to the court usher on arrival at the court building, asking that it be passed to the judge prior to the hearing starting.
- Short: Keep it short. Ideally, it should be no more than two to three pages.
- Appropriate: Think of who you are writing for! Wording which is aggressive, confrontational, overly emotional and unnecessary is not going to assist your children, your case or you.
- Child Focused: As with any statement, keep the wording child focused.
- Reasoned: Be clear and give your reasoning behind the requests, but succinctly. Short paragraphs are more likely to be read.
- Be sure to make YOUR points: Remember it is your statement and why you are writing it. It is important to consider the balance of the overall document to ensure that your own arguments and your reasoning is prominent.
- Re-draft if necessary: Read and re-read your statement once it is finished. Aside from checking spelling and grammar, consider:
- whether the points you wish to make are clear. Try not to make paragraphs too long.
- whether each paragraph/point you raise is necessary. If it is not, then delete it. Do not risk your main points being obscured with waffle, padding or repetition.
- whether language / sentences / paragraphs can be simplified to make them easier to understand
- if what you have written could be misread or misinterpreted. - Closure: When it is finished and you are happy with it, put it away and come back to it a bit later. Read it again before sending it.
Tribunal Bundle
Local Authorities in every Appeal must prepare a tribunal Bundle. The Bundle includes all documents that were sent by both you and the LA as evidence in the appeal. (It's all the evidence that has already been sent to the other party and the tribunal).
The Bundle can be a large document and maybe sent in a few separate emails. The LA cannot choose which evidence from the other party to include in the bundle or leave out. There will be a summary at the beginning with all the attachments listed under Sections. It is worth checking that everything you think should be contained within the Bundle, is which is why we advise that you make a list of all the evidence that your email.
Bundle guidance
This is guidance for producing a Tribunal Bundle for the First-Tier SEND (called a SEND 40).
This outlines what the LA will be doing to produce the bundle for the Tribunal and what must be included.
It shows how the bundle will be divided into sections – Part A to Part D.
It also outlines the maximum pages allowed in each Appeal type in addition to the core Tribunal Bundle (Part A) and the EHCP plus appendices (Part B).
It also includes guidance on How to send the bundle, Supplementary Evidence, Late evidence, Working documents, Adjourned hearings, Non-Compliance with the Tribunal's directions. Manually produced Tribunal Bundles and Application for permission to appeal following a Tribunal decision.
Do
- Please quote the full case number on all correspondence to the Tribunal as this will help us link it to the file quickly.
- If you have access to email, this is our preferred method of receiving correspondence; you should include the hearing date first along with the case number and the child's/young persons name in the subject title box. (Please refer to the tribunals guidance titled electronic documentation).
- Only send one copy of your correspondence (there is no need to send an original in the post if you have sent it by fax or email). We will destroy any duplicate copies sent into the Tribunal.
- When possible please send us single-sided documents.
- Let us know promptly either by phone, email or post if your case is withdrawn or settled. This will avoid any unnecessary action on your case and may enable us to reallocate your hearing day to another case.
Don't
- Please do not telephone their office to confirm receipt of emails and faxes. You will receive an automated response to confirm receipt of emails and your fax machine can produce a transmission report.
If you have any questions for Tribunal Bundles please call the Tribunal Helpline on 0300 303 5857 or email send@justice.gov.uk
The Bundle deadlines
The tribunal will tell the LA what the deadline is for sending its Bundle to the tribunal in the Key Dates box within the letter you get when your hearing is registered - Parents Registration Letter.
Bundle maximum page numbers
Normally your Bundle would be sent by the Tribunal Officers on behalf of the LA using the email address send.appeals@surreycc.gov.uk.
Where cases are more complex the Bundle maybe sent by the SCC Legal Services Team. The Bundle should never be sent via a secure site like Egress or in a zip file.
The Local Authority can email the bundle to sendbundles@hmcts.gsi.gov.uk.
Taken form SEND 40 form:
Number of pages of evidence
In addition to the core Tribunal Bundle (Part A) and EHCP plus appendices if applicable in a SEN appeal (Part B), both parties will be automatically entitled to submit a limited number of pages of evidence depending on the type of appeal or claim registered by the Tribunal. This will be taken from the information on the registration form.
The maximum numbers of pages automatically allowed as evidence in the appeal or claim for each party are:
- Refusal to carry out an EHC needs assessment/reassessment appeals, 100 pages each party.
- Refusal to issue an EHCP, 100 pages each party.
- Appeal against Section B and/or Section F of an EHCP – specification of special educational needs and/or special educational provision, 100 pages in total each party.
- Appeal against Section I of an EHCP – educational placement, 75 pages each party.
- Decision to Cease to Maintain an EHCP, 75 pages each party. Plus, if also appealing sections of the EHCP: Sections B and/or F = 100 pages each party, Section I = 75 pages each party.
- Appeal following Annual Review decision = page limits applicable for Parts/Sections under appeal, for example, Section B, F & I = 100 + 75 = 175 pages each per party or Section B and/or F = 100 pages each per party.
- Request for the Tribunal to make a recommendation concerning health issues under the National Trial, 50 pages each party.
- Request for the Tribunal to make a Recommendation concerning social care issues under the National Trial, 50 pages each party.
- Claim of disability discrimination, 200 pages each per party.
Most cases will require fewer pages of evidence. The page limits given are not a target numbers of expected pages.
Guidance for producing a Tribunal Bundle for the first-tier Tribunal SEND 40 (PDF)