Withdrawing/stopping an appeal
Unopposed appeals
An unopposed appeal is where the Local Authority (LA) concedes before it has put in their response (the R1 which is about 6 weeks after your Appeal was registered), it has to comply with the deadlines in SEND Regulations 45 for assessing, issuing or amending an EHCP and this is called an Unopposed Appeal.
Timescales for the LA to follow after the Consent Agreement:
Refusal to Assess/Reassess - If your appeal was about a refusal to assess or a review or reassessment the LA must notify you that they must carry out an assessment or reassessment within 2 weeks.
If the LA decides not to issue an EHCP the LA must notify you of the decision within 10 weeks, giving reasons for its decision.
If the LA decides to issue an EHCP it must send you a finalised Plan within 14 weeks.
Contents - Where the appeal was about the contents of the EHCP or a refusal to amend the LA must issue the Plan to you within 5 weeks.
Section I (placement appeal only) - Where the appeal was about the school or other institution to be named in EHCP the LA must amend the Plan to include the name of the school you wanted within 2 weeks or if it is also a contents appeal within 5 weeks.
Refusal to Issue - Where the appeal is about a refusal to issue an EHCP the LA must issue draft Plan within 5 weeks and issue a final Plan within 11 weeks.
Ceasing a Plan - The LA must continue to maintain a Plan and if the LA has also agreed to amend they must amend the Plan within 5 weeks.
Acceptable delays - The LA need not comply with the time limits above if it is impractical to do so because:
- exceptional personal circumstances affect the child or their parent or the young person during the relevant period;
- the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or
- any of the circumstances referred to in SEND Regulation 13(3) apply. (Regulation 10.4 a-d below).
The Law:
Unopposed appeals
45.—(1) This regulation applies where the child's parent or young person has appealed to the First-tier Tribunal and the local authority notifies the First-tier Tribunal that it will not oppose the appeal before it submits a response.
(2) The appeal is to be treated as if it was determined in favour of the appellant and the First-tier Tribunal is not required to make an order.
(3) Where the appeal concerned a request for a local authority to make an assessment under section 36 or a review or reassessment under section 44, the local authority shall carry out that assessment, review or reassessment within 4 weeks of the local authority's notification to the First-tier Tribunal.
(4) Where the appeal concerns the contents of the EHC Plan, then the local authority shall issue the amended EHC Plan within 4 weeks of the local authority's notification to the First-tier Tribunal.
(5) Where the appeal concerns the name of the school or other institution, or type of school or other institution to be named in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the local authority's notification to the First–tier Tribunal.
(6) Where the appeal concerns the refusal of the local authority to make an EHC Plan, then the local authority will arrange to make an EHC Plan within 5 weeks of the local authority's notification to the First-tier Tribunal.
(7) The local authority need not comply with the time limits specified in paragraphs (3), (4) or (6) if it is impractical to do so because—
(a)exceptional personal circumstances affect the child or their parent or the young person during the relevant period;
(b)the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or
(c)any of the circumstances referred to in regulation 13(3) apply.
SEND Regulations 45
Opposed appeals
Where the LA has already put in a response (the R1, so 6 weeks after your Appeal was registered), this would be an opposed appeal rather than an unopposed as outlined above.
The LA should complete a document setting out what has been agreed and then both sign it. This is called a 'Consent Agreement' or a SEND 46.
This document would be sent by the LA to the Tribunal (and yourselves) with an explanation that the parties have agreed that the appeal is being resolved by consent. If your appeal included contents (sections B and F) then the Working Document would also need to be sent along with the Consent Agreement. The LA should state, in their email, that the deadlines in SEND Regulations 44 apply.
If the tribunal are happy with the agreement, they will issue an Order detailing what must be done and ending (vacating) the appeal.
Timescales for the LA to follow after the Consent Agreement:
Ordered to cease an EHCP- If the order dismisses an appeal against a decision to cease an EHCP, the LA must cease to maintain the EHCP immediately.
Ordered to assess or reassess - If your appeal was about a refusal to assess or a review or reassessment the LA must notify you that they must carry out an assessment or reassessment within 2 weeks.
If the LA decides not to issue and an EHCP the LA must notify you of the decision within 10 weeks, giving reasons for its decision.
If the LA decides to issue an EHCP it must send you a finalised plan within 14 weeks.
Ordered to make and maintain an EHCP (refusal to issue) - The LA must send you a draft plan within 5 weeks of the order being made and send a copy of the finalised plan within 11 weeks.
Case referred back to the LA - If the order refers the case back to the LA for it to reconsider, the LA must do so within 2 weeks and must either send a copy of the draft EHCP or give notice of its decision not to maintain an EHCP together with mediation and appeal advice.
Ordered to amend the EHCP - If the order requires a LA to amend the special educational provision (SEP) specified in an EHCP, the LA must issue the amended EHCP within 5 weeks.
Ordered to amend the school named - If the order requires the LA to amend the name of the school or other institution or the type of school or other institution specified in the EHCP, the LA must issue the amended EHCP within 2 weeks.
Ordered to maintain and amend a plan - If the order requires the LA to continue to maintain an EHCP in its existing form, the LA must continue to maintain the EHCP.
If ordered to continue to maintain and amend an EHCP, the LA must continue to maintain the EHCP and amend the EHCP within 5 weeks.
When the tribunal have made an order the tribunals job is finished
Once Tribunal have issued their decision, they cannot take any further actions. They have no power to supervise how and when the order is carried out. Even if the LA does not do what has been ordered within the time limit, Tribunal cannot take further action. Parents would need to pursue as a complaint.
The Law:
Compliance with the orders of the First-tier Tribunal
44.(1) Subject to paragraph (3) or any direction made by the First-tier Tribunal, if the First tier Tribunal makes an order requiring a local authority to take any action, the local authority shall take that action within the period specified in paragraph (2).
(2) Where the order—
(a) dismisses an appeal against a determination to cease an EHC plan, the local authority shall cease to maintain the EHC plan immediately;
(b) requires a local authority to make an assessment or reassessment, the local authority shall within 2 weeks of the order being made notify the child's parent or the young person that it shall make the assessment or reassessment and shall—
(i) where, following the assessment or reassessment, the local authority decides that it is not necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, notify the child's parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date of the First-tier Tribunal's order;
or (ii) where, following the assessment or reassessment, it decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to those specified in regulation 13
(2) as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal's order; (c) requires a local authority to make and maintain an EHC plan, the local authority shall—
(i) issue a draft EHC plan within 5 weeks of the order being made; and
(ii) send a copy of the finalised EHC plan to the child's parent or young person under Regulation 14, within 11 weeks of the order being made.
(d) refers the case back to the local authority for it to reconsider, the local authority shall do so within 2 weeks of the order being made and shall either send a copy of the draft EHC plan as required under Regulation 13 or give notice as required under Regulation 5 of any decision not to maintain an EHC plan;
(e) requires a local authority to amend the special educational provision specified in an EHC plan, the local authority shall issue the amended EHC plan within 5 weeks of the order being made;
(f) requires the local authority to amend the name of the school or other institution or the type of school or other institution specified in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the order being made;
(g) requires the local authority to continue to maintain an EHC plan in its existing form, the local authority shall continue to maintain the EHC plan;
and (h) to continue and amend an EHC plan, the local authority shall continue to maintain the EHC plan and amend the EHC plan within 5 weeks of the order being made.
(3) The local authority need not comply with the time limits specified in paragraph (2)(b) and (c) if it is impractical to do so because—
(a) exceptional personal circumstances affect the child or their parent, or the young person during that period of time;
(b) the child or their parent or the young person is absent from the area of the authority for a continuous period of 2 weeks or more during that period of time;
or (c) any of the circumstances referred to in regulation 13(3) apply.
SEND Regulations 44
Consent orders
A Judge will then look at the Consent Agreement and ensure they are happy with the contents, if they are then an Order will be sent but this can take about 20 working days. This will state that your Hearing has been vacated.
If the Judge has questions then an email will be sent to state this and the Hearing may still take place. The Tribunal do not HAVE to issue a Consent Order but will do so if "they consider it appropriate".
29.(1) The Tribunal may, at the request of the parties but only if it considers it appropriate, make a consent order disposing of the proceedings and making such other appropriate provision as the parties have agreed.
(2) Notwithstanding any other provision of these Rules, the Tribunal need not hold a hearing before making an order under paragraph (1), or provide reasons for the order.
Rule 29 of the HESC (Health, Education and Social Care Chamber)
After a Consent Order is received from SENDIST, the LA's representative (normally the Tribunal Officer (TO)) will share this with the SEN Team. If the EHCP needs to be finalised the TO will also do this within 2 weeks and then pass it to the SEN Team to sign it off.
The actions listed on the Order will be shared with those services from Surrey that are involved in the appeal, for example, the Case Officer, the Senior and Area Manager and the Inclusion Lead, along with a timeline of when things should happen. YOU can request a copy of this so you can ensure that the Order is being fulfilled.