EHCP Appeal Process Guide

7th February 2023

The ehcp appeals process provides a procedure for parents or carers to challenge decisions made about their child’s special educational needs provision.

Here we provide a comprehensive overview of the EHCP appeals process and what you need to know to navigate it successfully.

1. The decision letter

The Local Authority should send you a covering letter with the Final EHCP that sets out your right of appeal to the SEND (Special Educational Needs & Disability) Tribunal.

This letter should inform you of the following:

  • Your right of appeal to SEND & the timescale for appeal
  • How to contact the mediation service

2. Timescales & mediation

The decision letter should explain that you must contact the mediation service and it should provide their contact details.

Mediation must be considered but you do not have to mediate; at this stage in the process, parents often feel they have exhausted most communication with the Local Authority and that mediation would not further assist any agreement. But the letter you receive should provide details about mediation and that the option is available.

Whether you agree to mediate or not, a mediation certificate must be obtained. This should be sent to you within 3 working days of contacting the mediation service.

If you have chosen not to mediate, the certificate will simply state this, and it does not ‘look bad’ if you choose not to mediate!

The decision letter should also set out the timescales for your appeal. You must appeal within 2 months of the date of the decision letter or within 30 days of the date of the mediation certificate. Whichever date is the latest and do not miss this date!

3. SEND appeal form

In order to lodge your appeal, you must complete the SEND 35 form, which is available on the government website. You will need your mediation certificate before you can complete this form.

You will need to provide your details, the details of the final EHCP and the sections of the EHCP that you wish to appeal.

You will be asked to provide reasons for your appeal, and we advise you provide as much detail and supporting evidence as you can at this stage.

Whilst there will be further opportunity to provide information once the appeal is lodged, the timescales are short, and it is beneficial to have your ‘case’ as prepared as possible before you lodge the appeal. If this isn’t possible then provide as much as you can and don’t miss that deadline.

4. Supporting evidence & submitting the ehcp appeal

You will need to give reasons for your appeal and explain why you disagree with the Local Authority’s decisions about the contents of the EHC Plan; what you think needs to change and supporting reasons and evidence. Depending on the sections of the final EHCP that you disagree with, supporting evidence could include:

  • Evidence of your child’s attainment or rather, lack of progress. You could provide examples of work, school reports, attainment results
  • Any relevant correspondence with professionals working with your child
  • Independent experts reports that you can obtain such as Independent Educational Psychologist, Speech and Language Therapist, Occupational Therapist
  • Refer to any relevant legal issues regarding the Local Authority’s decision; are they acting unlawfully, not having due regard to the statutory guidance

If you are appealing against the school named in the EHC Plan, then you will need to provide evidence about why the Local Authority’s school cannot meet your child’s needs and evidence about the school you want to be named.

Once your ehcp appeal is ready to submit, then do so either by email (you will receive a confirmation email) or by post (make sure you have it signed for upon receipt). Keep a copy of everything you send.

It will then take approx.10 working days for the SEND Tribunal to register your appeal. Once registered they will notify you in writing and set out the next stages and relevant deadlines. You should expect the appeal hearing date to be approx. 12 weeks from the date your appeal was registered.

Our specialist team can provide advice throughout each step of the ehcp appeal process. Contact us for further information…..

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FAQs

Who can make an EHCP appeal?

An EHCP appeal can be made by the parent, carer or young person who the
EHCP is for. However, it is important to note that there is a prescribed window of
time available to be able to make an appeal.

The right of appeal is given, after consultation on the draft EHCP, when the EHCP is
finalised.

The right of appeal will also be given if the EHCP is amended following an
interim or annual review.

How long do I have to make an EHCP appeal?

You typically have two months from the date of the local authority’s decision to
make an EHCP appeal.

What decisions can be appealed in an EHCP process?

Decisions that can be appealed include:

  • the refusal to conduct a statutory
  • assessment or issue an EHCP, the content of an EHCP (description of pupil’s needs and provision)
  • the school named in an EHCP.

Which sections of EHCP can be appealed?

  • Section B (description of needs)
  • Section F (special educational provision)
  • Section I (Placement).

Can I get legal help for an EHCP appeal?

Yes, you can seek legal help for an EHCP appeal, either through a solicitor/specialist education law firm authorised to provide this support without charge, or you can commission your own legal team/specialist SEN Advocate, such as Education Advocacy.

Legal representation can increase the chances of a successful outcome due to the complexities and technicalities of the SEN Legal Framework.

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EHCP Appeal Scenario Example

Pupil A was aged 10, attending a specialist Independent Day School close to home where his SEN had been met since he started school at the age of 4. Pupil A had severe and complex special educational needs and life-limiting disabilities (PMLD) which meant he was unlikely to live to adulthood.

The Local Authority who maintained his EHCP fulfilled an internal strategy to cut costs by developing a new provision on the site of an existing Local Authority special school for pupils with Severe Learning Disabilities. The Local Authority decided it would be an efficient use of resources to move Pupil A from the local Independent School to the new provision for Year 7. Prior to making their decision the Local Authority did not meet with the parents or visit Pupil A in the placement to gain a better understanding of his existing needs.

At the Independent School Pupil A was accessing his education programme throughout the school day, even whilst being tube-fed, as this was undertaken in the classroom environment and not in the medical room. In the new placement, his parents were informed this would have to take place in the medical room and therefore there would be a pause in education as the Nursing team did not continue with the education programmes.

At the Independent School Pupil A, who was non-verbal, had hydrotherapy sessions twice a week which were multi-disciplinary and involved physical skills to maintain the efficacy of his twice-yearly botox treatments, as well as social and communication programmes. The hydrotherapy pool was thermo-netrual which meant Pupil A did not need to expend vital energy on keeping warm or cooling down because the water was the same temperature as his body. This empowered him to concentrate fully on the activities in hand.

The new Local Authority provision did not include a Hydrotherapy Pool. The school had a swimming pool which was a much colder temperature. It was only available for Pupil A once each week and was not actually accessible due to the type of hoist at the side of the Pool. The hoisting system in the Independent School was the length and breadth of the pool and was thus far more accessible. The education programme in the swimming pool was taught by swimming instructors and Pupil A needed members of the Therapy Team to deliver his programme. He did not have the cognitive potential to learn to swim.

The Local Authority school opened for 38 weeks each year, including a 6 week summer holiday. The Independent School did not close for 6 weeks in the summer and thus the pupils were able to access their physical and social programmes. Attendance at the Local Authority school would mean he would have to attend a different holiday club for respite provided through social care. For a pupil with such Severe and Complex needs the inconsistency in care would have been very confusing for the pupil and would mean a completely different team of professionals would have to be trained to take over for a relatively short period of time.

In opposing the Local Authority’s decision, the parents utilised the services of Education Advocacy and produced professionals’ written and verbal evidence which demonstrated in totality the needs of Pupil A. The Tribunal Panel agreed that his needs were being met in the existing placement and to move him would be detrimental to his physical and emotional well-being, and in addition the proposed school could not offer provision sufficient to meet all of his very complex needs.

Participating in the Appeal process was insightful for the parents who realised why the EHCP needed to be updated with an accurate description of each and every one of Pupil A’s special educational needs and disabilities to ensure there was a detailed provision quantified and specified. The “efficient use of resources” is a valid reason for naming a school which is not the parent’s preference, however, the school named must be able to demonstrate they can meet every one of the proposed pupil’s needs.