Types of appeal

Introduction

There are different types of appeals and each are explained in this section.

  1. Refusal to assess
  2. Refusal to issue an Education Health and Care Plan (EHCP)
  3. Placement / Section I only appeal (appealing for a school to be named)
  4. Contents Appeals (appealing Section B and Section F)
  5. Extended appeals (this is the name of an appeal if you are appealing Health or Social Care as well as Education)
  6. Ceasing to maintain an Education Health and Care Plan (EHCP)
  7. Paper hearings (this is where you don't need to attend as the Judge looks at your evidence - you maybe offered this type of appeal)
  8. Disability discrimination, claim against a school

Refusal to assess

See our information on the appeal process and how to complete a SEND 35a appeals form.

The Independent Provider of Special Education Advice (IPSEA) have created a refusal to assess pack (PDF) which gives a detailed guide to preparing for and carrying out a refusal to assess appeal.

A refusal to assess appeal used to be 'on the papers' only, meaning there was no hearing to attend. This has now changed however, as in all appeals, you have the option to attend a hearing if you wish.

The Tribunal can decide the appeal on the papers without an oral hearing if you and the Local Authority (LA) consent and the Tribunal concludes that it is able to decide the case on the papers. The Tribunal can list paper hearings at short notice, and if you consent to a paper hearing, it may lead to an earlier decision being made in the appeal.

Section 4 on the SEND 35a

To have the Judge look at all your evidence on papers only you can tick the statement that states 'I consent to the appeal being concluded on the papers without an oral hearing'.

Legal test the tribunal will apply

The legal test for deciding whether to secure an Education Health and Care (EHC) needs assessment is contained in the Children and Families Act 2014 section 36(8):

The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that:

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

Children and Families Act 2014

Your right of appeal

The letter from your Local Authority (LA) turning down a request for an Education Health and Care needs assessment (EHCNA) must arrive within six weeks of that request being made (day 1 is when Surrey LA received your request for an needs assessment) and must tell you about:

(a) your right to appeal that decision;

(b) the time limits for doing so;

(c) information about mediation;

(d) the availability of:

(i) disagreement resolution services; and

(ii) information and advice about matters relating to the special educational needs of children and young people.

The SEND Tribunal could waive the two-month deadline if all this information is not provided, and you would be allowed to appeal late.

Surrey LA must also tell you when they refuse a request for assessment from a school or institution or if the LA itself has otherwise become aware that a child or young person may have SEN (Special Educational Needs) and has then decided not to conduct an EHCNA.

In both these cases it must make the decision within six weeks of the request or of becoming aware. Then the LA (Local Authority) will inform you and give you the right of appeal to the SEND Tribunal (by sending the letter mentioned above).

This is an appeal under section 51(2)(a) of the Children and Families Act against a decision made under section 36 of the Act. You will not have the right of appeal if Surrey LA has carried out an EHCNA in the past six months.

You can appeal as the parent or the young person over the age of 16 is able to apply in their own name. A parent is either a birth parent, someone who has acquired parental responsibility or someone who has care of the child (for example a foster parent or grandparent with whom the child lives).

Appeal deadlines and mediation

To check your deadline for sending your appeal to the SEND Tribunal, first, look at the date on the letter from the LA. Make a note of the date two months after this.

You have 2 months to obtain a mediation certificate and make your appeal. When you have your mediation certificate your appeal date is one month from the date on the mediation certificate or 2 months from the date on the decision letter, whichever is the later.

The Law says you have to consider whether to enter mediation before you can register your appeal. This means you must ring the number for Global Mediation who are the Independent mediation organisation that Surrey LA use. You then talk to the mediation advisor and get a certificate from them saying you have done so. This is normally emailed to you within 3 working days.

Considering the appeal

As stated you do not have to engage in mediation to register your appeal, only consider it and if you have had a lot of discussions already with Surrey LA you may feel it would be of little use and you want to save time, then get your certificate and appeal right away.

Going for mediation

Some people, who have not talked to the L-SPA (Learners-Single Point of Access) about why they have refused a needs assessment feel that mediation may help. Some parents also feel that mediation gives them more time to appeal (as mediation has to happen within 30 days and if it doesn't then a certificate is issued after this time and again you have 30 days (1 month) after the date on the mediation certificate to appeal).

Filling out the appeal form

For a Refusal to Assess appeal you must complete the SEND 35a form to appeal:

How to complete the SEND 35a Form

We also have a webinar to help you fill in the appeal form.

Giving your reasons for your appeal

This is where you set out why you think Surrey LA must assess your child, or you, as a young person. Try to put in everything you need to say, your full case, at this point (Section 2: Your reasons for appeal will help you with this). You must send in enough information for Surrey LA to be able to respond.

Do:

  • Keep it short and to the point.
  • Separate your points into paragraphs.
  • Number your paragraphs or organise them under headings.
  • Refer to any evidence that backs up your points. (You can send more evidence later and should say so, if for instance you will be getting a speech therapy report because Surrey LA has not obtained one.)
  • Refer to the legal issues.

Do not:

  • Get bogged down on history. If there is a long history of difficulties between you and Surrey LA let the evidence (for example letters between you and the LA) speak for itself.

What to send in with your form

It is actually quite straight forward! With the completed and signed form (a SEND 35a) send the SEND Tribunal the following:

  • A copy of the letter Surrey LA sent you that told you of its decision
  • Your mediation certificate
  • Your evidence for your child needing assessment / Your reasons for making the appeal – (this can include the paperwork you sent in with the EHC Needs Assessment and the Request Form as well as any new reports / letters / advice from professionals that you may have received since submitting the original request for assessment to Surrey LA).
  • A document listing all your items of evidence

Please remember not to send original documents, send photocopies and keep a copy of everything you send, including the form.

It is important to tell the Tribunal why you disagree with Surrey LA's decision not to secure an EHC needs assessment and refer to any written evidence you have to support your case.

Timetable of the appeal process

Surrey LA sends a decision letter to you. Your appeal must reach the SEND Tribunal within two months of the date on the letter or one month from the date you obtain a mediation certificate, whichever is the later.

After you send in your appeal, the SEND Tribunal replies within 10 working days of registering your appeal.

In this response, the SEND Tribunal tells you about important dates. It tells you when Surrey LA are required to respond to your appeal, gives you a deadline to send further information and give you the Hearing date or when SEND Tribunal will be considering your case and making a decision (if your case is being heard on papers). This will be a window of time between two dates around ten days apart.

At the same time, the SEND Tribunal writes to Surrey LA, sending them a copy of your appeal documents.

Surrey LA submits its response to the SEND Tribunal within 30 days. Surrey LA must state whether it opposes your appeal and why. They must also send you a copy of its response at the same time: tell the SEND Tribunal if you do not get it within the 30 days.

Ensure that any evidence you didn't send in with your appeal form gets to the SEND Tribunal by any deadline it gives you and send a copy to Surrey LA at the same time.

At least 10 working days before considering your appeal and making a decision, Surrey LA should send you and the SEND Tribunal the 'bundle', a page-numbered set of the documents the SEND Tribunal has been sent in the case.

Generally, you will receive the decision and reasons in writing within ten working days of the SEND Tribunal considering your case.

If the SEND Tribunal decides in your favour, Surrey LA has four weeks to begin the EHC needs assessment.

If you feel there has been an error or have some other serious reason for thinking the decision is wrong, you have 28 days to apply for a Tribunal review.

Expected progress

When considering whether an EHC needs assessment is necessary for a child/young person the LA should consider whether there is evidence that despite the early years provider, school or post 16 institution having taken relevant and purposeful action to identify, assess and meet the special educational needs of the child or young person the child and young person has not made expected progress.

Section 9.14 of the Code of Practice

To inform their decision Surrey LA will need to take into account a wide range of evidence and should pay particular attention to:

  • Evidence of the child or young person's academic attainment (or developing milestones in younger children) and rate of progress.
  • Information about the nature, extent, and context of the child or young person's SEN.
  • Evidence of the action already being taken by the early years provider, school, or post-16 institution to meet the child or young persons' SEN.
  • Evidence that where progress has been made, it has only been as the result of additional intervention and support over and above that which is usually provided.
  • Evidence of the child's physical, emotional and social development and health needs, drawing on relevant evidence from clinicians and other health professionals and what has been done to meet these by other agencies, and
  • Where a young person is aged over 18, Surrey LA must consider whether the young person requires additional time in comparison to the majority of others of the same age who do not have special educational needs to complete their education or training. Remaining in formal education or training should help young people to achieve education and training outcomes, building on what they have learned before and preparing them for adult life.

Some information above is adapted from the IPSEA's pack that can be found on their website.

Refusal to issue an EHCP

After an Education Health and Care (EHC) needs assessment has been carried out Surrey Local Authority (LA) must notify you:

  • of the outcome of the assessment
  • whether it proposes to secure that an EHCP and
  • the reasons for that decision.

Where Surrey have carried out an EHC needs assessment but decided that it is not necessary to issue an EHCP you will have the right to appeal and can decide to appeal to the SEND Tribunal.

The Law

The legal test

The legal test which Surrey LA must apply is found in section 37(1) of the Children and Families Act 2014 and says:

(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan:

(a) the local authority must secure that an EHC plan is prepared for the child or young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.

This is the only legal test and it turns on the question of what is necessary.

The test must be applied in relation to the Special Educational Provision (SEP) required for each individual child or young person – "in the light of" that child or young person's assessment. It should not be viewed in the light of other matters such as LA policies.

Right to appeal

The right to appeal is found in section 51 (2) (b) of the Children and Families Act 2014 and says:

(2) The matters are:

(b) a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

There is also Statutory Guidance within the Special Educational Needs and Disability (SEND) Code of Practice: 0 – 25 Years which contains guidance about SEND Tribunal cases in Chapter 11.

Please note: As with all appeals under the Children and Families Act, the person with the right of appeal is the parent until the child reaches the end of compulsory school age, when the right becomes that of the young person.

Filling out the appeal form

Please ensure you complete the SEND 35 form and NOT the SEND 35a.

How to complete the SEND 35 Form.

We also have a webinar to help you find in the appeal form.

Your appeal, making the case

The burden of proof is on you as the parent or young person. You will need to explain why your child or young person fits within the legal test (that is outlined above), explaining why it is necessary for the SEP to be set out in an EHCP.

The letter you received from the LA should have outlined the reasons for its decision not to issue a Plan for example;

  1. It could be where there is a situation where your child's or young person's SEN was not previously fully understood by the school and where SEP may not have been "well matched". The suggestion is that in this case it is not necessary for SEP to be made in accordance with an EHCP because the school will now, in the light of the information from the EHC needs assessment, be able to better match the SEP that is delivered.
  2. It could be that your child or young person is not progressing sufficiently, despite well-targeted provision and it means that the SEP cannot reasonably be provided from the school's own resources, an EHCP should be issued.
  3. It could be that it is not possible to consider the accuracy of prior knowledge or the effectiveness of previous provision. This could be because your child's SEN has only recently been identified because their needs have changed significantly or because they have only been in their current setting a short while. In this case, if the SEP identified as being necessary by the assessment process cannot be provided from the school's (or college or early years provider's) own resources, an EHCP should be issued.

Demonstrating that the school or other setting has assessed and delivered Special Educational Provision (SEP) appropriately

Special Educational Need support in schools and early years settings should take the form of "a four-part cycle through which earlier decisions and actions are revisited, refined and revised with a growing understanding of the pupil's needs and of what supports the pupil in making good progress and securing good outcomes".

Schools are expected to assess, plan, do and review.

For you as parents to show that your child's school has done this you will need to provide evidence in the form of records of assessments that were carried out in school or early years provider and that the SEP that has been put in place. It may be an Individual Education Plans (IEP), Provision Maps or similar.

These should be available from school (ask your child's class teacher and/or SENCo as you are entitled to these). They should show that the school had accurately identified your son or daughter's SEN, put provision in place and reviewed it regularly. Surrey LA have introduced the Graduated Response which includes The Profile of Need document which is divided into four areas:

  • Cognition and Learning
  • Communication and Interaction
  • Social Emotional and Mental Health (SEMH)
  • Sensory and/or Physical.

Each of these areas then has the following sections:

  • Profile of Need (assess)
  • Assessment and Planning (plan)
  • Intervention and Support (do)
  • Evaluating Progress and Reviewing (review).

Demonstrating that the Special Educational Provision (SEP) required cannot be provided from within the school or other setting's own resources

Firstly, the SEP required by your child must be identified and then evidence needs to be presented about the extent to which the school or other setting can deliver it.

(1) Identifying the SEP that is required:

The information and advice gathered by Surrey LA during the assessment process is your starting point. If Surrey LA has gathered advice in accordance with the Law they will have received information about your child's education, health and care needs, desired outcomes and the special educational, health and care provision that is required.

The SEND Code of Practice says that the evidence and advice submitted should be "clear, accessible and specific and provide advice about outcomes relevant for the child or young person's age and phase of education and strategies for their achievement".

The assessment advice needs to be reviewed using the two-coloured highlighter method (a) highlight the needs in one colour and (b) the provision in another. If there is not corresponding SEP (provision) for each identified SEN (need) this should be noted and the professional who identified the SEN should be asked to specify the provision required. It may be useful to look at our Information Sheet about Checking a Plan.

It maybe necessary for you to email Surrey LA to ask them to provide the missing information (remembering to give them a period of time to comply, 3 working days).

(2) Identifying how much SEP can be provided by the school or other setting: It is always helpful if the school (or early years provider or post-16 institution) is in agreement with you that an EHCP is required because of the information required about their ability to meet your child's needs. If the school does support the application, then they can provide written evidence.

Schools are required to publish an SEN Information Report which should be available on the school's website. The report should contain information about the type and extent of SEP that they provide. If it is not on the website, then you should email to ask for a copy.

Surrey LA has a Local Offer which must set out (amongst other things) the SEP it expects to be available for the children and young people for whom they are responsible. If the Local Offer is not helpful, then Surrey LA could be asked to explain how much SEP it expects schools to be able to deliver. (It maybe that Surrey LA refers to having delegated money for the school so that it can provide the SEP your child requires without the need for an EHCP).

Surrey LA gets delegated money from central government to pay for SEP in maintained schools and there are three elements to this funding:

  • The Age Weighted Pupil Unit (AWPU): this is the basic per pupil funding which schools receive for every child on their roll
  • Additional Support Funding (ASF) – this is an identified figure within the delegated budget which each school receives yearly. It is provided by LAs for mainstream schools and the Education Funding Agency for Academies and Free Schools. This element of funding is used to fund the SEP for children on SEN Support and a proportion of funding for children with Plans
  • The 'Top up' (or 'high needs') funding for individual pupils. This funding comes as and when required and on the basis of the child's assessed needs. It is usually, although not exclusively, used to fund support for children with an EHCP.

Mainstream schools usually have to demonstrate that they have spent the AWPU plus £6,000 per annum from the ASF before they can revert to Surrey LA for further funding. Surrey LA may therefore argue that provision which costs less than this total by definition cannot be provision which it is necessary to be set out in an EHCP.

Just because provision may cost less than this amount does not automatically mean Surrey LA should refuse to issue an EHCP. You (as parents) will need to show that unless the SEP is provided via an EHCP, the provision is not in fact going to be made.

SEP is not always about cost, for example a child with sensory needs may need a completely different environment to that which can be provided in a mainstream school and you would need to show that any reasonable adjustments which were made to help were not been successful. Therefore, you need to show that the SEP required to support your child (in this example) cannot be provided without an EHCP as it is something which the school cannot provide.

Input from external specialists

You should ask which outside / external specialists the School or early years provision is able call in, for example, Surrey's educational psychologist (EP), the behaviour support team, health service speech therapists and/or specialist teachers.

Schools can generally access a certain amount of advice and support from external specialists. If there is evidence that your child or young person needs a high level of on-going input from one of these services, then it is unlikely that it will be possible for it to be provided from the school's own resources.

It is worth remembering that if a School is applying for a certain service (or even resource) then it could be argued that what is required is (SEP) over and above that which is ordinarily available from within the school's own resources.

What if the Special Educational Provision (SEP) required can be provided from within the school's own resources but it is not being delivered?

Whether it is because of poor leadership, lack of expertise or just bad practice, not all settings have regard to their duty under section 66 of the Children and Families Act to use their best endeavours to secure that the SEP.

An appeal with this sort of background can be challenging. Success will rely on the SEND Tribunal accepting that the school's failure or unwillingness to put SEP in place for your child means that it should be made in accordance with an EHCP.

Outcomes of a refusal to issue an EHCP appeal

We would always say that you need to manage your expectations about what can be achieved by an appeal. The form of the EHCP itself is not part of the appeal process. If you 'win' your appeal then Surrey LA will be ordered to issue a draft EHCP, to consult with yourselves and then issue a Final. If you are not happy with the EHCP you will be able to lodge another appeal against the contents of the EHCP or the school named in Section I, once it has been finalised.

Placement/Section I only appeal (appealing for a school to be named)

This section relates to Section I only appeals for a school that falls under the scope of Section 38(3) of the Children and Families Act 2014 (CAFA) and is for after your appeal has been registered.

Section 38(3):

A school or other institution is within this subsection if it is:

(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

Children and Families Act, Section 38 (3)

In this type of appeal, the burden of proof is on the Local Authority (LA) to dislodge the parental preference. They need to do so by evidencing one of the following as contained in Section 39(4) Children and Families Act:

39 Finalising EHC plans: request for particular school or other institution

(4)(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or

(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—

(i) the provision of efficient education for others, or

(ii) the efficient use of resources.

Children and Families Act, Section 39(4)

Whist the burden of proof is on Surrey LA, you must still submit evidence towards your appeal.

If yours and Surrey LA's choice of schools are both saying that they can meet 'need' your appeal would be about the costs of each school. See the following information on costs. So 'the efficient use of resources' by demonstrating that there is a minimal difference in cost to the taxpayer/public purse string.

You also need to look at how each school can meet your child's needs (as outlined in the EHCP). You would do this by, for example, looking at the Schools Ofsted report, SEN Information on their website and their prospectus and talking to the SENCo. The schools would also be called as witnesses to your appeal so they can be questioned and demonstrate this.

If the argument is that you believe that Surrey LA's named school cannot meet your child's needs, then you would need to demonstrate this as well as call them as a witness (if Surrey LA did not do so). You should have visited both schools so that you can be clear about what each can provide.

Building a case

We advise that you make full use of the information in the prospectus, SEN Information Report and any Ofsted reports for both schools. All these will need to be sent as evidence to your Appeal.

You are required to submit the latest Ofsted report for your chosen school and Surrey LA will submit the Ofsted report for theirs.

Make use of any reports which demonstrate the extent of your child's difficulties and/or the extent of provision required to support your child.

  1. In the EHCP

    2. If you have a Section I only Appeal and you feel that there is some important information that is missing from the EHCP, for example assessments that have not been carried out or missing content from Reports then you must change your Appeal to include contents.

  2. Formally notifying your preference of School

    3. If you did not email your preferred School when you completed the SEND 35 then you must do so once the appeal is registered. This is called a 'formal notification' and you should state that you are asking to have their School named on your child's EHCP. You should include something to the effect that you have visited the school and met with staff, you have learnt more about the types of pupils they have and how the school meets their needs and say that you firmly believe it is the right school for your child. If you have not visited it would be worth doing so.

  3. Naming your preferred School or Schools

    4. If you did not state the School you would like named on your child's EHCP, you will need to tell the Tribunal and Surrey LA by emailing them.

    It is important to name a School as soon as possible. If you wait until the 'final evidence' deadline, this may mean that Hearing date is delayed as Surrey LA will not have time to consult with them.

    Once Surrey LA is aware of the school you are seeking to have named they will consult with that school.

    If the school is a wholly Independent, you will need a letter from them confirming that a place is available and how long it will be kept open for. The Tribunal will ask for a POP Form to be completed (a Provision of Place Form).

    Note: some Independent Special Schools are on the Section 41 List. These Schools have agreed with the Government that if their School is named in a pupil's EHCP by an LA or by Tribunal, they will admit that pupil. This means if you have chosen a Section 41 School you should not be required to seek a letter from the school confirming they have space.

    Have a statement ready to say why you would like one School over another – list all the pros and cons and all the reasons why your preference is better than Surrey LA's, for example, the therapies on site at your School compared to Surrey LA's. Remember to reference these to the needs and provision in the EHCP.

    Get School Published Admission Number (PAN) figures, previous year figures and actual numbers on roll for the year your child will be attending. You may need to ask the school / schools for this information.

    Costs

    You need to submit the full costs of your chosen school, together with a full breakdown of what they provide. You also need to communicate with School Transport department and ask them for their costs for transporting your child to and from that school. You will need to send written proof of all this to both Tribunal and Surrey LA. Surrey LA will also be required to do this for the school they have named.

    Be clear on the distances from home to the Schools and the time it will take (on a school day). Include the time it will take to get to School on time. You could have a few examples / various routes and their times/distance. Please note that the distance should be the distance travelled (the road route) and not "as the crow flies".

    You may wish to obtain details on the following provisions to draw up a cost comparison for various schools over the year to strengthen your appeal:

  4. Establishment costs
  5. TA costs
  6. Therapist costs if not included in TA costs, for example OT (occupational therapy), SALT (speech and language).
  7. Transport for the year, solo and shared.
  8. Social care costs, for example respite.

    9. Do this using a table listing each school and state whether they are your preference, your second preference or the School the LA have named.

    Where your School maybe a little more expensive than that of Surrey LA's, this is not an automatic barrier. Surrey LA must consider your parental preference against that of 'inefficient' use of resources (so the public purse string).

    Case Law:

    In Essex County Council v the Special Educational Disability Tribunal [2006] EWHC 1105 (Admin), the Judge said that the SEND Tribunal should balance that extra cost against any extra benefit the preferred school may bring for the child. It is only where the extra cost is 'significant' or 'disproportionate' that the parent's preferred placement is displaced.

Contents Appeals (appealing Section B and Section F)

You can appeal some of the sections of an EHCP. A contents appeal is when you appeal Section B (the needs) and Section F (the provision).

You can also appeal the Health and Social Care sections (H1 and H2 and D) but this would be called an Extended Appeal. (There is a section to explain those).

You can also appeal the School named in Section I.

You can appeal contents and section I at the same time.

In a contents appeal the changes you wish to have made are made on a Working Document.

We have given some advice on examples of the evidence you can send too.

Extended appeals

Information on extended appeals can be found on the GOV.UK website.

Ceasing to maintain an EHCP

The legal test for when Surrey Local Authority (LA) can cease to maintain an EHCP:

Section 45

(1)A local authority may cease to maintain an EHC plan for a child or young person only if (b) the authority determines that it is no longer necessary for the plan to be maintained.

Children and Families Act 2014

9.205 Where a local authority is considering ceasing to maintain a child or young person's EHCP it must:

  • inform the child's parent or the young person that it is considering this
  • consult the child's parent or the young person
  • consult the school or other institution that is named in the EHCP.

The local authority (LA) may issue a notice to cease to maintain an EHCP at any time.

SEND Code of Practice

The SEN Regulations provide for a two-stage process:

  1. when a local authority is considering ceasing to maintain an EHCP it must inform the child's parent or the young person and consult them as well as the head teacher or principal and
  2. having carried out that consultation, if the LA decides to cease to maintain the EHCP it must then notify the child's parent or young person, the institution named and the responsible commissioning body.

This means that you should receive two separate letters from the LA.

In both cases therefore, the question will be the 'necessity' of the EHCP and whether it is still required by the child or young person. (See Case Law B and M v Cheshire East Council (2018) para 84 to 85).

How cease to maintain appeals differ from other appeals

If you want to appeal the decision to cease to maintain an EHCP the first thing to remember is that the LA will always have the burden of proof and will have to make its case that it is no longer necessary for the EHCP to be maintained. They will have to produce evidence to support their case on this and convince the Tribunal that the EHCP is no longer needed.

The Tribunal Judge will make a decision on the way in which they wish to hear the appeal and the way in which they wish to hear the evidence presented. The Judge will outline this at the beginning of the hearing but it will always be helpful to be prepared to meet the LA's case.

You should gather any evidence to show that the EHCP is still needed as this will strengthen your appeal. You should contact the School or College for help with this.

Any provision within the EHCP must be maintained pending the hearing and determination of the appeal.

Evidence and the approach to take in a cease to maintain appeal

It will be helpful to show either that the LA have failed to give adequate (or any) consideration to whether it is necessary to maintain the EHCP or that that there is some other good reason why it must be maintained.

The LA must have considered whether the educational outcomes in an EHCP have been met before deciding to cease to maintain and the case will be about whether the plan is still needed whilst the young person continues their education / training or not.

In both cases, the sorts of evidence you would be looking to gather would be similar to that needed when appealing against a decision about a refusal to issue and could include:

  • Evidence from the school or College for example, details of the SEN support to show that such support would not be sufficient to meet the child or young person's needs
  • Expert reports to show that the child or young person's SEN or requirement for special educational provision have not changed and that they still require the provision within their EHCP
  • Evidence from the child or young person themselves about the level of support that they still require and the effect that the cessation of the EHCP would have on them.

The cease to maintain notice

The cease to maintain notice must include the right of appeal and the time limits. If the parent or young person does not appeal, the EHCP will remain in place until the end of the time limit in which an appeal can be made and then come to an end.

If the parent or young person does appeal, the EHCP will remain in place and must continue to be implemented until the appeal is decided by the Tribunal.

When Surrey LA decides to take away or end an EHCP, this is called 'ceasing to maintain'. This means that the EHCP will come to an end and the LA will no longer have the legal duty to ensure that the educational provision specified in the EHCP is received by your child or young person.

Combining a cease to maintain appeal with a contents appeal

When appealing against the decision to cease to maintain it will also be possible to ask the Tribunal to order amendments to the contents of the EHCP. This may be because the Plan is vague or doesn't specify the provision required to continue in education or training. In such a case, the young person may well still require their EHC plan to move onto college for example.

If it is likely that the EHCP would need to be amended in order to continue to offer the young person the necessary support they require during their course, it would make sense to invite the Tribunal to consider the amendments which the young person is seeking first.

If this is done first, the Tribunal then go on to consider whether the EHCP, in its amended form, should continue and whether the LA can, in fact, establish that it is not necessary to do so. As always it is down to the individual Tribunal Judge to determine the order in which matters were heard and determined during the hearing, and they have wide powers to decide how they will do that.

An appeal against a decision to maintain can, therefore, become an appeal against the contents and the same considerations in terms of evidence gathering and presentation would apply in such circumstances.

Possible orders following a cease to maintain appeal

If the parent or young person's appeal is successful, Surrey LA will have to continue to maintain the EHCP and that will take effect immediately.

If the cease to maintain was also an appeal about the contents of the EHCP and the Tribunal ordered Surrey LA to make amendments to be made to the Plan, they would have 5 weeks from the Tribunal's order to make any such amendments.

If however, the appeal is unsuccessful, Surrey LA would be able to cease to maintain with immediate effect.

What the Law states

Circumstances in which a local authority may not cease to maintain an EHCP where the person is under the age of 18.

29.(1) A local authority may not cease to maintain an EHC plan for a child or young person under the age of 18 unless it determines that it is no longer necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

(2) Where a child or young person under the age of 18 is not receiving education or training, the local authority must review the EHC plan in accordance with regulations 18 and 19 and amend it in accordance with regulation 22 where appropriate, to ensure that the young person continues to receive education or training.

SEND Regulations

Circumstances in which Surrey LA may not cease to maintain an EHCP where the person is aged 18 or over

30. (1) When a young person aged 18 or over ceases to attend the educational institution specified in his or her EHC plan, so is no longer receiving education or training, a local authority may not cease to maintain that EHC plan, unless it has reviewed that EHC plan in accordance with regulations 18 and 19 and ascertained that the young person does not wish to return to education or training, either at the educational institution specified in the EHC plan, or otherwise, or determined that returning to education or training would not be appropriate for the young person.

(2) Where following the review, the local authority ascertains that the young person wishes to return to education or training either at the educational institution specified in the EHC plan, or at another educational institution, and determines that it is appropriate for the young person to do so, it must amend the young person's EHCP as it thinks necessary in accordance with regulation 22.

SEND Regulations

Procedure for determining whether to cease to maintain EHCP

31. (1) Where a local authority is considering ceasing to maintain a child or young person's EHC plan it must:

  • inform the child's parent or the young person that it is considering ceasing to maintain the child or young person's EHC plan; and

(b) consult the child's parent or the young person;

  • consult the head teacher, principal or equivalent person at the educational institution that is named in the EHC plan.

(2) Where, following that consultation the local authority determines to cease to maintain the child or young person's EHC plan, it must notify the child's parent or the young person, the institution named in the child or young person's EHC plan and the responsible commissioning body of that decision.

(3) When notifying the child's parent or the young person of its decision to cease to maintain the EHC plan, it must also notify them of:

(a) their right to appeal that decision;

(b) the time limits for doing so;

(c) the information concerning mediation, set out in regulation 32; and

(d) the availability of

(i) disagreement resolution services; and

(ii) advice and information about matters relating to the special educational needs of children and young people.

SEND Regulations

The following sections are about the procedure:

9.206 Where, following the consultation, the local authority decides to cease to maintain the child or young person's EHC plan, it must notify the child's parent or the young person, the institution named in the child or young person's EHC plan and the responsible CCG of that decision. The local authority must also notify the child's parent or the young person of their right to appeal that decision and the time limit for doing so, of the requirement for them to consider mediation should they wish to appeal, and the availability of information, advice and support, and disagreement resolution services.

9.207 Support should generally cease at the end of the academic year, to allow young people to complete their programme of study. In the case of a young person who reaches their 25th birthday before their course has ended, the EHC plan can be maintained until the end of the academic year in which they turn 25 (or the day the apprenticeship or course ends, or the day before their 26th birthday if later). It is important that a child or young person's exit from an EHC plan is planned carefully, to support smooth transitions and effective preparation for adulthood. See paragraphs 8.77 to 8.80 of Chapter 8 on 'Leaving education or training' for more information.

9.208 Where a young person aged 18 or over is in receipt of adult services, the local authority should ensure that adult services are involved in and made aware of the decision to cease the young person's EHC plan.

SEND Code of Practice

Young people turning 19 who have EHCP

9.151 In line with preparing young people for adulthood, a local authority must not cease an EHCP simply because a young person is aged 19 or over. Young people with EHC plans may need longer in education or training in order to achieve their outcomes and make an effective transition into adulthood. However, this position does not mean that there is an automatic entitlement to continued support at age 19 or an expectation that those with an EHC plan should all remain in education until age 25. A local authority may cease a plan for a 19- to 25-year-old if it decides that it is no longer necessary for the EHC plan to be maintained. Such circumstances include where the young person no longer requires the special educational provision specified in their EHC plan. In deciding that the special educational provision is no longer required, the local authority must have regard to whether the educational or 191 training outcomes specified in the plan have been achieved (see the section on Outcomes, paragraphs 9.64 to 9.69).

9.199 A local authority may cease to maintain an EHCP only if it determines that it is no longer necessary for the plan to be maintained, or if it is no longer responsible for the child or young person. As set out in the Introduction (paragraph xi.), the legal definition of when a child or young person requires an EHCP remains the same as that for a statement under the Education Act 1996. The circumstances in which a 203 statement can be ceased or not replaced with an EHCP during the transition period are the same as that for ceasing an EHCP. 9.200 The circumstances where a local authority may determine that it is no longer necessary for the EHCP to be maintained include where the child or young person no longer requires the special educational provision specified in the EHCP. When deciding whether a young person aged 19 or over no longer needs the special educational provision specified in the EHCP, a local authority must take account of whether the education or training outcomes specified in the EHCP have been achieved. Local authorities must not cease to maintain the EHCP simply because the young person is aged 19 or over.

SEND Code of Practice

Paper hearings

Please note, unless you have specified to the Tribunal that you want your hearing to be a paper hearing, the hearing will be an oral / virtual hearing.

You will send in all your evidence and explain your arguments in writing. The Tribunal will consist of 2 or 3 professionals/SEND specialists on the Panel, including 1 Judge and an expert in SEND related matters.

Within ten working days of submitting your appeal 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 Surrey Local Authority (LA) aware you that have lodged your appeal against them.

The email will have some attachments to it, namely the 'parent registration letter' and advice on how to communicate with the Tribunal Service and will explain the Tribunal process and give dates by when actions need to be taken by yourself and Surrey LA. Your registration letter will also confirm if you have an oral or a paper hearing.

There is a summary of Key Dates at the bottom of the 'parent registration letter' which are in a box. Please note that these dates are not in order and it is important to note that some have a time next to them to, for example by noon by such a date.

It is important to remember that the Judge and professionals/SEND specialists will only have the evidence in front of them (in the Bundle) and will not be able to ask you any questions, so it is important to ensure that every piece of evidence or report has been emailed to Tribunal to be contained within the Bundle. Don't assume they will 'read between the lines', it's all about the evidence in front of them.

There will be a window of time between two dates, around ten days apart and your appeal could be heard anywhere between these two dates. Approximately 2 weeks before the hearing date you will receive a' Notice of Hearing', which will advise you on which date your appeal will be heard.

You will receive the Tribunal decision (and reasons for the decision) ten working days after the hearing.

Note: In most cases there would appear that the advantage in asking for a paper hearing is that it may decrease the time taken to reach a decision in your case (rather than it resulting in a different outcome).

Disability discrimination, claim against a school

Disability discrimination is when someone is treated less favourably or put at a disadvantage for a reason that relates to their disability.

The definition of disability is:

(1) A person (P) has a disability if:

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

section 6(1) of the Equality Act

The treatment could be a one-off action, the application of a rule or policy or the existence of physical or communication barriers which make accessing something difficult or impossible.

The discrimination does not have to be intentional to be unlawful.

The Equality Act 2010 sets out a number of ways in which a pupil may be discriminated against because of disability:

  1. when a school treats a pupil badly because of something connected to their disability, such as not allowing their assistance dog into the school or penalising them for needing time off for medical appointments, and the school does not have a good reason for doing so.
  2. when the school treats the pupil worse than a non-disabled pupil in a similar situation because of their disability.
  3. where a school has a particular policy or way of working that has a worse impact on disabled people compared to people who are not disabled. This is unlawful unless the organisation or employer is able to show that there is a good reason for the policy and it is proportionate.
  4. schools should make reasonable adjustments to accommodate pupils with disabilities. What is reasonable depends on the facts – the Equality and Human Rights Commission have published guidance on reasonable adjustments in schools which can help you work this out.
  5. When the pupil is treated by a staff member in a way that makes them feel humiliated, offended or degraded.
  6. When the pupil is treated badly because they or their parents have made a complaint of discrimination under the Equality Act 2010.

If you feel that your child or young person has experienced a form of disability discrimination at the hands of their educational setting then you may wish to lodge a formal complaint against them. Each school will have their own internal complaints process which you will need to follow in the first instance. You will be able to find information on this on their website.

If the complaint remains unresolved, or you wish to escalate this to a disability discrimination claim then you can bring an appeal to the SEND Tribunal. You must do this within 6 months of the alleged discrimination (if the discrimination took place over a period of time, the six months begins at the date of the last discriminatory act).

Any appeal will actually be against the responsible body of that school, for example the governors.

To submit a Disability Discrimination appeal you must complete a Special Educational Needs and Disability Tribunal forms (GOV.UK).

When you have completed and signed the claim form, please make sure you keep your own copy, and then send it and all other relevant documents to:

HM Courts & Tribunals Service Special Educational Needs and Disability, 1st Floor Darlington Magistrates' Court, Parkgate, DL1 1RU.

Phone: 0300 303 5857

Or email it with electronic copies of all the necessary documents to send@justice.gov.uk

We recommend sending via email to ensure that there is a paper trail.

Evidence

You will need to evidence the legal tests and definitions that link with disability discrimination when preparing your claim. The first step would be to be evidencing that your child is classed as 'disabled' within the meaning under the Equality Act 2010.

You would need to evidence this in section 6 of the SEND 4a or SEND 4b forms. If there is a diagnosis of a particular condition for example, you must provide copies of documents showing this. It is very important to bear these legal tests in mind throughout the claim.

When explaining the situation in which you feel that your child has been discriminated against because of their disability, it is really important that you are clear about what happened and explain it in a chronological order.

You should have a look at the schools' policies such as SEN policy, behaviour policy, equality statement; any that may relate to the unfavourable treatment. You may want to outline specific policies alongside your claim, pointing out exactly what it is they are failing to do when supporting your child.

You will need copies of professional reports or other documents which help explain the disability in question. You should submit this evidence with your claim form.

You should also send copies of any documents which might help the SEND Tribunal to understand what the disability discrimination claim is about. This could include correspondence, copies of documents sent from the school, or written statements from people who witnessed events.

If your child has an EHCP you should also include a copy of this and highlight the specific parts that you do not feel that school are failing to meet.

Outcomes

Discrimination claims are 'backward looking' and do not look forward to what support is needed in the future. While the SEND Tribunal can order reasonable adjustments to be made, if what you really want is for better support to be put into place and a different school to be named in then you might be better focusing your time and energy on liaising with the case officer in order to find a more suitable school. If however, you think it is important to bring the claim so that the school are held to account, to prevent future discrimination against other children then absolutely this is the right path to take.

If the claim against a school was successful, it might be ordered to:

  • Arrange training for school staff
  • Change school policies or guidance
  • Provide extra tuition, to make up for lost learning
  • Provide a written apology
  • Provide trips or other opportunities to make up for activities the child or young person may have missed
  • Make reasonable adjustments to accommodate the pupil's disability
  • Change the location of lessons or activities within the school
  • Where a child had been refused entry to an independent school in a manner that was discriminatory, the school
  • could be ordered to admit the child or young person
  • If a child was permanently excluded and this was found to be discriminatory, the school could be ordered to re-admit the child or young person.

The following things cannot be ordered:

  • Financial compensation
  • Physical alterations to school buildings
  • The dismissal of a particular staff member.