EHC needs assessments and EHC plans
You have a right to appeal to the First Tier Tribunal (SEND), also referred to as the SEND Tribunal, if the local authority refuses a request to:
- carry out an EHC needs assessment or reassessment
- issue an EHC plan
- change what’s in an EHC plan after a review of needs
- maintain an EHC plan
You also have a right to appeal if you are unhappy with a decision made by the local authority on the placement or type of placement named in the draft EHC plan.
From April 2018, the Government trialled extended powers of the First Tier Tribunal (SEND) to hear appeals and make non-binding recommendations about health and social care aspects of the EHC plan, provided those appeals also included education elements. These extended powers have now been granted full approval. From September 2021, Tribunal appeals which include health and/or social care aspects will be known as ‘extended appeals’.
This gives you the opportunity to raise any concerns you have regarding decisions made about health or social care aspects of the EHC plan at the same time.
The first stage of the appeals process is to contact an independent mediation adviser to discuss whether mediation may help before considering an appeal. Whether or not you choose to take up mediation, you will need to obtain a mediation certificate to confirm you have considered this option before going to appeal.
You don’t need to consider mediation if your appeal is solely about the name or type of school, college or other institution named on the EHC plan.
Warwickshire has contracted three independent companies to provide this mediation service for you:
Post: Charles Horn
49 Calthorpe Road
KIDS SEND Mediation
249 Birmingham Road
Post: Hugo Besterman
Meeting Point House
You can appeal to the First-Tier Tribunal (SEND) if you disagree with your local authority’s decision made about your child’s special educational needs in relation to an EHC needs assessment or an EHC plan. There are no fees for parents or young people to pay.
The SEND Tribunal has the power to order the local authority to carry out an EHC needs assessment, issue an EHC plan and/or amend an existing EHC plan.
Prior to 2018, it was only possible to appeal the educational aspects of EHC plans. The continuation of the extended powers given to the SEND Tribunal maintains the right to request recommendations about the health and social care needs and provision specified in EHC plans.
This means that you can raise all your concerns in one place and takes a more holistic, person-centred view of the needs of the child or young person named in the plan.
It is only possible for the SEND Tribunal to consider the health and social care aspects of the EHC plan where an appeal is already being made in relation to the educational aspects of the EHC plan and the education aspect must remain live throughout the appeal.
If the SEND Tribunal makes a recommendation about health or social care elements of the EHC plan, it is non-binding. This means that the local authority is generally expected to follow such recommendations but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set out in writing to you and to the Department of Education.
If they are not followed, you have the right to complain to the Local Government and Social Care Ombudsman (LGSCO) or the Parliamentary and Health Service Ombudsman (PHSO) or seek judicial review.
The SEND Tribunal will also handle appeals against discrimination by schools or local authorities due to a child’s disability.
The Tribunal is independent of government and will listen to both sides of the argument before making a decision.
Video hearings at the Special Educational Needs and Disability Tribunal
More hearings are now being conducted over video link. To help explain this process, HM Courts and Tribunals Service has created a short video on what to expect.