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Visual Impairment :
Special Educational Needs
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APPEALING AGAINST LA DECISIONS

The Appeal Process

Since the changes to the Tribunal system in 2007 and the introduction of the Children and Families Act (2014) the appeal process has evolved and been refined. Procedures change, for example, it was originally intended that the judge would have a three-way case management phone conversation with the two parties, but it proved too difficult to organise and too time consuming so has been dropped. It is essential to go to the SEND web-site and obtain the latest information and appeal forms before handling any appeal.

This is the usual pattern of an appeal where a final EHCP has been issued. The sections that can be appealed are B, F and I, which correspond to Parts 2, 3 and 4 of a statement of special educational need.

 

The parents make a request for change at an annual review or a new EHCP is issued and the parents request requests or amendments have not been agreed.

 

The final EHCP is issued and sent to the parents. This should also include all of the documents etc. listed in section K. If this is not included parents should ask the LA to provide a complete set. The LA must also include a letter with their decision and informs the parents of their right to appeal and arrangements for mediation. It is important to note the date that the letter written and the date it was received (It can take a few days for the letter to move through the LA’s post room and be delivered to the parents). Parents have two months to appeal or request mediation. After that they lose the right to appeal.

 

Parents contact the LA requesting mediation. The LA will put them in touch with an independent mediator. They can not appeal to SEND without going to mediation first (unless the appeal is just about placement, i.e. just Section I).

 

The mediator will contact the parents to discuss the issue and then arrange a mediation meeting. The LA must attend the mediation session. At the meeting both sides put their case and the mediator tries to find a resolution to the dispute. Parents are not bound by the mediation outcome. The mediator issues a certificate which entitles the parents to lodge an appeal to SEND.

 

Parents can appeal to SEND. Parents should ask their potential witnesses if they will be available and willing to attend the hearing. The appeal should include :

The SEND appeal form (Click here to download a form from SEND)

The letter from the LA which came with the final EHCP

The final EHCP

Appendices to the EHCP

Details of the reasons for the appeal, summarising the child’s special educational needs and giving details of the nature of the appeal, including amendments to the EHCP

The mediation certificate

All the additional supporting documents (i.e. assessment and reports not included in the appendices)

If the appeal is to request a change of school in Section I,  the letter to the school requesting a place and the school’s offer of a place should be included, together the OFSTED reports of the school named by the LA and the parents’ choice of school.


NB. Send the complete appeal by special delivery so that it is tracked and signed for.

 

SEND will acknowledge the appeal and issue a reference number and a case direction letter which provides dates by which various actions must happen and useful information about appeals. Dates must be checked with witnesses so that they know the final date by which evidence etc. can be submitted and the date of the hearing. If there is a need to change to date of the final hearing then a request for an alternative date must be made immediately using a request for changes form, (download from the SEND web-site). Note that all request for changes sent to SEND must also be sent to the LA. If the changes are agreed a new court direction will be sent to all parties.

 

The LA must respond to the appeal within 30 days.

 

Forms (attendance and case progression forms) must be submitted in accordance with case directions. Copies of all documents must also be sent to the LA. The attendance form must include the names of everyone attending, i.e. representative, parents/carers, the child/young person (if attending), witnesses and any observers/supporters (Note that observers and supporters are not permitted to participate in the hearing). If parents do not have a representative then one will act as representative, conducting the case at the hearing.

 

We try to keep an ongoing dialogue with the LA, by email, phone calls or meetings, so that some or all of the issues can be resolved prior to the hearing. The majority of the appeals we have managed over the past 10 years have been resolved without the need for a Tribunal hearing.

 

Parents can make a request for a local hearing (usually this is due childcare difficulties, particularly with a severely VI child). These can be held in local offices, magistrate’s courts or hotels.

 

Requested amendments to the EHCP should be sent to the LA so a working document can be agreed. These may be those requested during the consultation period for the EHCP, but there may be new amendments, particularly if additional assessments have been carried out. This must be done in accordance with the SEND working document guidance. This shows requested amendments which have been agreed and those still in dispute.

 

Any additional assessment reports etc., the final evidence, and the case statement have to be submitted by the date in the case directions. The case statement is a detailed account of the case and the supporting evidence, summarising the recommendations of assessments and reports. No further evidence can be submitted after this final date.

 

The agreed working document will be sent by the LA to the Tribunal. This will show amendments that have been agreed between the parents and the LA, and those which have not, i.e. the issues still in dispute.

 

All documentation is incorporated into the “Bundle” which is sent to both parties. A bundle can be large, we have had cases where the bundle is between 600 and 700 pages. The bundle should be checked carefully for errors. Make sure that all the pages have been numbered sequentially and that all of the documents submitted, including any late evidence, are included in the bundle. Any errors – contact SEND immediately. The bundle will also contain details of the hearing. Check the names against the attendance form and the venue, if a local hearing was requested.

 

The bundle needs to be copied so each witness has a copy. In preparation for the hearing the bundle should be “marked up” and referenced to the working document. We produce a “Tribunal document” in which we print a page from the EHCP on the left side of a double page with the right side for notes about sources of evidence (page numbers from the bundle, and details of which witness will be asked to provide evidence or discuss his/her report. We use post-it notes and highlighters to mark the evidence in the bundle. Detailed preparation is essential so that it is easy and quick to turn to the evidence in the bundle during the hearing. The “Tribunal document” should be copied for the parents and the witnesses so that each knows in advance what evidence he/she will give.

 

The hearing will take place at the venue agreed. They vary considerably depending on the case and the judges. At the hearing the judging panel consists of a legally trained chair with 2 SEN specialists, though in some cases this can be reduced to a single SEN specialist. Both sides should be represented. In many cases we have handled the LA have been represented by solicitors or barristers. All those named in the attendance forms will be at the hearing. No one else will be admitted. We advise parents to bring photos of the child to the hearing as this makes it more personal and everyone at the hearing knows who is being discussed. In addition judges often ask the parents to describe the child.

 

The Tribunal panel will all have read the cases from the parents and the LA thoroughly and usually only the issues in dispute will be discussed. The parents’ representative will usually be asked to introduce the appeal and the judge will ask both sides to present their case for each of the unresolved issues, presenting the evidence and asking their witnesses for their evidence. Members of the panel can ask additional questions to clarify issues. A representative is not a witness and can not give his/her own evidence. The chair of the Tribunal will keep detailed notes of the proceeding. At the end of the hearing the judge asks the representatives to give a summary. The LA present their summary first so the parents. We prepare an outline summary in advance of the hearing, incorporating issues that have arisen during the hearing, and asking the parents to say something at the end of the summary. The hearing is not like a court and the hearing will end without a decision being made. The two sides leave the hearing and the Tribunal members will discuss the issues in the case and will make their decisions.

 

The decision letter, with a summary of the evidence, is issued about two weeks after the hearing.

 

Appeals against the decision can be made to the second tier tribunal. However these can only be made if there is an error in procedure or law, not because the parents don’t like the decision.

 

The LA will issue an amended EHCP incorporating the directions of the Tribunal.