If, having carried out an Education Health and Care Needs Assessment (“EHCNA”) your local authority refuses issue an Education Health and Care Plan (“EHC Plan”) for your child, you have the right to appeal this decision to the First Tier Tribunal SEND (“The Tribunal”). This blog post will guide you through the steps you need to follow.
To successfully appeal a Refusal to Issue, you will need to demonstrate why an Education Health and Care Plan ("EHC Plan") is essential for your child. This involves showing that your child’s Special Educational Needs (“SEN”) cannot be met without one, and this will usually mean they cannot be met from within the resources ordinarily available to mainstream schools. You should provide clear evidence of your child’s SEN and the impact that they are having on their education, as well as detailing the Special Educational Provision (“SEP”) your child requires to meet those SEN, and the reasons why an EHC Plan is necessary to deliver it. Examples of SEP that necessitate an EHC Plan might include a place at a specialist school; significant daily 1:1 support from a Learning Support Assistant (“LSA”); or frequent, direct sessions with a qualified Speech and Language Therapist or Occupational Therapist.
Before appealing, you must consider mediation and obtain a mediation certificate. This doesn’t require you attend mediation, but you must think about it, however briefly. If you decide that you don’t want to mediate, simply contact the mediation advisory service within two months of the date that the local authority’s decision was sent to you, and you will be sent the mediation certificate. If you do decide to mediate but it does not resolve the issue, you will automatically be issued a mediation certificate.
An appeal to the Tribunal must be submitted within two months of receiving the local authority’s final decision letter or within one month of receiving the mediation certificate; whichever is later. The Tribunal now operates entirely online (including hearings) and whilst you can send in paper documents for the appeal, the expectation is that everything will be done electronically.
Although appeals against Refusal to Issue decisions can be 'heard on the papers', i.e. without an oral hearing, it is almost always preferable to have an oral hearing. This is because a hearing allows you to present your case more comprehensively and effectively and to counter any late evidence that may be submitted by the local authority.
Once your appeal has been sent to the Tribunal it will be registered, which should take 10 working days. You will then receive a registration letter with details of the timetable for the appeal including the date of the Final Hearing and the dates by which further evidence must be submitted. The letter will also contain the date by which the local authority has to file their response to the appeal; 30 working days after the date of registration.
Where the local authority opposes the appeal, both parties must obtain and submit any evidence not included with the appeal or response as soon as it is available, and not wait for the final evidence deadline to do so. Anything sent to the Tribunal must also be sent to the aocal authority. The local authority can concede the appeal at any time. If they do this with the response the appeal automatically ends, but if this happens after they have submitted their response, a consent order must be sent to the Tribunal to end the appeal.
Refusal to Issue appeals are very similar in practice to appeals against the contents of an EHC Plan. This means that they are often quite complex and involved. You should consider all of the information gathered through the EHCNA process, including any expert reports produced, and explain why that demonstrates the need for an EHC Plan. If you have independent professional reports, e.g. from an educational psychologist, you can include their findings and recommendations to support your appeal; even if the local authority has not taken them into account.
Appealing a Refusal to Issue can be a daunting process but it needn’t be complex or difficult. With the right advice and support, you can navigate it confidently and successfully; taking you a step closer to securing the right education for your child and the education that is your child’s right.
SEND Advocacy can support you with appealing a local authority decision not to issue an EHC Plan. If you need someone in your corner to help you secure the education your child or young person deserves, contact us today.
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