LexisPSL Local Government, in partnership with Shazia Akhtar of Hardwicke Chambers, look at the role and procedures of the Special Educational Needs and Disability Tribunal, and set out the issues of which local authorities should be mindful.
What is the Special Educational Needs and Disability Tribunal (SENDIST)?
The Special Educational Needs and Disability Tribunal (SENDIST) is part of the First Tier Tribunal (FTT) (Health, Education and Social Care Chamber (the Tribunal)).
Appeals in respect of decisions of the First Tier Tribunal are made to the Upper Tribunal (UT)
The FTT deals with appeals in relation to children and young people with special educational needs (SEN) as well as claims of disability discrimination in relation to school and local authorities (such as exclusions from schools).
How is a panel constituted?
Panels of the FTT are usually made up of three members (although increasingly there are two member panels). The panel always has a legally qualified chair, and the other members are experienced in SEN and disability issues.
The UT is comprised of one legally qualified member.
When can an appeal be made to the First Tier Tribunal?
All parents/guardians and young people have a right to appeal to the FTT:
- against any amendment to an education, health and care plan (EHC) Plan (or old Statement of SEN) (CFA 2014, s 51(3)(b))
- against a decision to refuse to conduct a needs assessment (CFA 2014, s 51(2)(a)). The test for when an assessment should be carried out is set out at CFA 2014, s 36(8)—see: Special educational needs in England under the Children and Families Act 2014—Assessment
- against a decision refusing to secure an EHC Plan following a needs assessment. The test is whether an EHC Plan is ‘necessary’ following an annual review (CFA 2014, s 51(2)(b))
- against disability discrimination in relation to children either from schools or local authorities
The FTT also handle appeals against decisions to refuse people under 18 in custody:
- an EHC assessment (CFA 2014, s 73(2)(a))
- an EHC plan after assessment (CFA 2014, s 73(2)(b))
- a placement to a suitable school or other institution after their release (CFA 2014, s 73(2)(c))
Frequent issues at tribunal that local authorities should be mindful of are:
- format of EHC plans - problems such as plans not being legally compliant — see: SEND code of practice: 0 to 25 years, para 9.1
- decisions by the local authority (LA) not being based on the applicable legal test — depending on the basis of the appeal, LAs should be mindful of the correct legal test to apply and ensure decision letters confirm the reasons for decisions with reference to the legal test
- lack of evidence from the EHC needs assessment — see: Special Educational Needs and Disability Regulations 2014, SI 2014/1530, reg 6
- lack of evidence on comparative costs — this should include total costs, including transport
Time frame for hearing an appeal
Rules brought in, in August 2016 mean that the timetable for hearing cases once an appeal has been registered is now 12 weeks (as opposed to 20). An appeal timetable will look like this:
LA response and attendance form
All further evidence
The applicants’ attendance form, if completed by parents/guardian, Form SEND 11, or SEND 11YP if a young person is appealing in their own right, will be due between week six and week nine. This form lets the LA and the Tribunal know who their legal representatives are and which witnesses they intend to call.
In addition, decisions against refusals to carry out a needs assessment will generally be considered on the papers unless a specific request is made in writing and there are sound reasons for having an oral hearing.
There are no prescribed ‘grounds of appeal’, each case will be fact dependent, for example an appeal against a refusal to issue an EHC Plan is likely to be centred upon the fact that the child or young person has not progressed and therefore requires support that is specified by way of an EHC Plan.
A disability discrimination claim will be based upon a school’s obligations (and failure to fulfil its statutory duty) under the Equality Act 2010 (EqA 2010). See Practice Note: Equality Act 2010—discrimination in schools.
The procedure to be followed in relation to appeals to the FTT are set out within The Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (FTT (HESCC)), SI 2008/2699 as amended.
There is no requirement for leave to bring proceedings in relation to SENDIST cases in the FTT.
An applicant must start proceedings before the Tribunal by sending or delivering an application notice to the Tribunal within the prescribed time limit which is within two months of the written decision being sent to the applicant (see SI 2008/2699, r 20)
The respondent (LA or school) must reply within 30 working days setting out why they disagree with the appeal and any further information/application for directions (see SI 2008/2699, r 21).
In a disability discrimination schools case that includes a claim for reinstatement of a child who has been permanently excluded, the respondent must reply within 15 working days after receipt of the application notice (see SI 2008/2699, r 21(1)(cc)).
The standard forms which must be used are available on the government website: justice.gov.uk.
Before an appeal is issued, there is a requirement to consider mediation under Regulation 33 of the Special Educational Needs and Disability Regulations 2014, SI 2014/1530 and the Children and Families Act 2014 (CFA 2014), or failing that, to inform the mediation adviser that he or she does not wish to pursue mediation and obtain a mediation certificate within the first two months of receiving the decision which will form the subject of an appeal to the Tribunal (reg 39). This does not apply when the appeal is about the school placement only.
Once mediation has been completed, or the mediation service has been informed that mediation is not being pursued, a Mediation Certificate will be issued. This will need to be sent to the Tribunal when the appeal is lodged.
The Tribunal will issue directions in relation to evidence relied upon and other matters. Expert evidence is crucial in order to have any chance of success at Tribunal. Due to the now shorter 12-week time frame it is of importance that parents/young people obtain any evidence supporting their appeal prior to issue. This can include reports from an educational psychologist, speech and language therapist, occupational therapist, child and adolescent psychiatrist, independent social worker or a staff member of the proposed school. This may need to be updated once the appeal has been lodged.
Any party may apply for permission to rely upon late evidence lodged after the evidential deadline—see also: HJ v London Borough of Brent  UKUT 15 (AAC).
Where appealing the contents of an EHC Plan, a working document ought to be prepared setting out the proposed changes being sought.
An appellant can rely upon up to three expert witnesses at the oral hearing (permission needs to be sought from the Tribunal if you wish to bring along any more). See section: 'Witnesses' in HM Courts and Tribunals Service guidance How to appeal an SEN Decision—A guide for parents. Their evidence is crucial to the likely success of an appeal. There is no limit on the number of written expert reports relied upon.
Amending an appeal notice
You can apply to amend an appeal notice if necessary. The procedure to be followed is to use SEND 7 Form and make a ‘request for change’.
Withdrawal of an appeal
You can withdraw an appeal following FTT (HESCC), SI 2008/2699, r 17 orally at a hearing or by sending written notice of withdrawal. Notice of withdrawal will not take effect unless the Tribunal consents to the withdrawal. The Tribunal must notify each party in writing that a withdrawal has taken effect under this rule.
Decision: what orders can the Tribunal make?
The Tribunal can uphold an appeal in part or full or dismiss an appeal.
A decision is usually made in writing within 14 days of the hearing and written reasons for the decision must be provided to each party (FTT (HESCC), SI 2008/2699, r 30)
The Tribunal can, at the request of the parties, make a consent order disposing of the proceedings and making any such appropriate provision as the parties have agreed (see FTT (HESCC), SI 2008/2699, r 29(1)). However, in SENDIST cases, if the matter settles less than five days before the hearing date, representatives may still be called to explain why settlement was not reached at an earlier stage. See section: 'Can I withdraw my appeal?' in HM Courts and Tribunals Service guidance How to appeal an SEN Decision—A guide for parents.
A decision of the Tribunal is binding but can be subject to appeal if there is an error of law.
An order for costs is not usually made unless the Tribunal is of the view that a party has acted unreasonably in bringing, defending or conducting the proceedings. The power to award costs in such circumstances is set out at FTT (HESCC), SI 2008/2699, r 10.
Appeals—how to appeal a tribunal decision
Clerical mistakes and accidental slips or omissions can be corrected under FTT (HESCC), SI 2008/2699, r 44.
Under FTT (HESCC), SI 2008/2699, r 45 the Tribunal may set aside a decision or part of a decision and re-make a decision if it considers it is in the interests of justice to do so; and if a document relating to the proceedings was not sent to, or was not received at an appropriate time; or a party or a party’s representative was not present at a hearing relating to the proceedings or there has been some other procedural irregularity.
Appeals are made using the standard forms and with reference to FTT (HESCC), SI 2008/2699, r 46 which provides that a person seeking permission to appeal must make a written application to the Tribunal for permission to appeal. Such an application must be made within 28 days of the decision. It must include the original decision of the Tribunal, identify the alleged error(s) of law and state the result the party making the application is seeking.
On receiving the appeal, the Tribunal must firstly decide whether there are grounds to review the original decision.
If the Tribunal decides not to review the decision, or reviews it but decides to take no action in relation to the decision, the Tribunal must consider whether to give permission to appeal in relation to the decision or part of it (FTT (HESCC), SI 2008/2699, r 47(2)).
The Tribunal must send a record of its decision to the parties as soon as ‘practicable’.
If it refuses permission to appeal it must send a statement of its reasons for such refusal and notification of the right to make an application to the UT for permission to appeal and specify the time frame within which and the method by which such application may be made. If an LA refuses to comply with a decision of a tribunal then this can be subject to judicial review.
Under FTT (HESCC), SI 2008/2699, r 48, a party can make an application for review of the Tribunal decision if circumstances have changed since the decision was made. Such an application must be made within 28 days of receipt of the decision notice.
The power to extend these time limits is contained within FTT (HESCC) 48 and 46 and also within the general case management powers of the Tribunal within rule 5(3)(a).
Old law vs new law
- under the CFA 2014, EHC Plans can continue until a young person is 25—under the old regime Statements of SEN lapsed at 19
- there is a new SEN Code of Practice
However, the actual process of appealing to SENDIST within the FTT system has not changed since the CFA 2014.