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A.M. Phillips - Education Law

A Specialist Education Law Practice

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Special Educational Needs

The new EHCP have replaced statements in England, although Wales will still retain statements for the time being. The new framework being introduced in England is contained within Part 3 of the Children and Families Act 2014. If you live in Wales please click here for information regarding your rights in Wales.

Statements of Special Educational Needs have been finally phased out in England as of the 1st April 2018. The requirement for specific, detailed and quantified statements remains and they can still be subject to appeal to the First Tier Tribunal (HESC) also known as SENDIST or SENTW if you live in Wales.

There are a number of different Appeals which can be heard by the Special Educational Needs & Disability Tribunal, also referred to as SENDIST. These are:

Appeals Against an LA Decision not to undertake a EHCP Needs Assessment:

I can assist you to challenge a Local Authority’s decision not to undertake a statutory Assessment through an appeal to SENDIST. Often the reasons cited by Local Authorities result due to a failure to look at the evidence properly and can be often successfully challenged. An appeal to SENDIST is often a far quicker way of bringing matters to the attention of the Local Authority as it often acts as an incentive for the authority to engage with you proactively in order to resolve matters without the need to proceed to a full tribunal appeal hearing.

The refusal to issue a EHCP

I can assist you in the event that the Local Authority undertakes a EHCP assessment and determines that it does not need to issue a EHCP.  The law states that the Local Authority must notify the parent of its decision not to issue a EHCP as soon as practicable, and in any event within 16 weeks of receiving the request or otherwise becoming responsible.  The Local Authority must also notify the parent of their right of appeal against the Local Authority decision.  I often find that the wrong criteria has been applied by the Local Authority and early input from a professional advisor can often remedy the situation.  However, if my initial intervention does not resolve matters, I can assist you with an Appeal to SENDIST.

Appeals Against EHC Plans:

An appeal to the Special Educational Needs and Disability Tribunal can be made in relation to parts 2, 3 and 4 of the Statement of Special Educational Needs (whilst these continue to exist) and Sections B (the child or young person’s special educational needs), Section F (the special educational provision required by the child or young person) and Section I (Placement). Previous case law continues to apply to EHC Plans, although the definition of educational provision has now been extended for the purpose of EHC Plans to include not only therapies but also training. An appeal to the SENDIST usually takes four to five months, although the Tribunal does prioritise and provide a shortened timeframe for cases in which the child or young person is due to move school or to a Further Education (FE) institution at the end of the current academic year. 

These cases have a shorter timeframe, which means that there is a need to instruct suitable experts quickly, as they are often very busy and can have long waiting lists.  Parents have the right of appeal to SENDIST up to the age of 18.  Young people can run their own appeals to SENDIST from the age of 16.  However where a young person lacks capacity at the age of 18, the parent can continue to run the appeal. See more details on the Deputyship page by clicking here.

The refusal to Undertake a Re-assessment of a EHCP

The law enables a parent to appeal against the Local Authority decision not to undertake a re-assessment of a child's EHCP subject to certain criteria.  If you consider that your child's EHCP does not reflect their current special educational and health and social care needs, please contact me with regard to the best way to proceed with an Appeal. 

Appeals Against LA Decision Not to Change Named School

The law enables a parent to request a change of named school within a child's Statement or EHCP plan subject to certain regulations set out in legislation.  However, it is important to note that this 'type' of appeal only allows a parent to request the same 'type' of school such as mainstream for mainstream.  If you consider that your child requires a different type of school, please contact me for initial advice on the most appropriate way of proceeding in order to secure a suitable alternative placement.

Appeals Against LA Decision to Cease to Maintain:

It is possible to appeal to the SEND Tribunal if your Local Authority cease to maintain your Statement or cease to maintain your EHC Plan. The expectation is that all children and young people who would have continued with the Statement, will transfer to a EHC Plan because the legal test for a Statement and an EHC Plan are the same. The legal test, is to determine if a Statement or ECH Plan is “necessary?” in order to meet the child or young person's special educational needs. If a Statement or EHC Plan is required, then you can appeal against the decision to Cease to Maintain.  If you appeal the Local Authority's decision to Cease to Maintain a Statement of EHCP, the Statement or EHCP must be maintained by the Local Authority until the decision of the SENDIST is received following the Tribunal hearing.

Disability Discrimination Claims against Schools

The Tribunal is also able to hear Disability Discrimination Claims, but only when those claims are against Local Authority Maintained Schools, Academies and Independent Schools. Disability Discrimination claims relating to other organisations are heard by the County Court. For information on how I can assist you with these please visit my Disability Discrimination page under the Appeals section of my website.

If you need help and advice on these, or any other matters relating to your child or young person's special educational needs, please call 029 2073 6329 to arrange your FREE initial telephone consultation or make an online enquiry by clicking here.