Make an SEN appeal against the school named in an Education, Health and Care Plan (EHCP)

We have been contacted by a number of parents who are unhappy with the school named in their child’s Education, Health and Care Plan (EHCP). As the ‘old’ regime of Statement of Special Educational Needs (SSEN) is replaced with EHCPs this issue is likely to become more common.

A child can be issued with an EHCP either following a transition from SSEN to EHCP or following an EHC needs assessment.

Whatever the process leading to an EHCP, parents, or the young person themselves if they are over 16 years, will be sent a draft EHCP and asked to express a preference for a school placement. The local authority does not necessarily have to comply with that request.

Once a preference is expressed, the local authority must consult with the school itself and take a view about whether it will name the school requested. The local authority has 15 calendar days to consult with the school and to issue a final EHCP.

Once you receive the final EHCP it may not name the school you have requested.

The options available are to explore mediation or to proceed directly to an appeal to the Special Educational Needs and Disability Tribunal.

Mediation

If you only want to challenge the school named in the EHCP there is no obligation to explore mediation. If you are unhappy about sections B and/or F of the EHCP, as well as the school named, you must at least contact the mediation service and obtain a ‘mediation certificate’ before proceeding with an appeal.

The medication certificate can be obtained from the mediation service following an initial discussion with them. If you decide that you do not want to explore mediation you will be issued with the certificate. If you do decide to go through mediation the certificate is issued once mediation is concluded. The process of mediation can take up to 30 calendar days.

The deadline to appeal to the Tribunal depends on whether you go through mediation:

• If you do go through mediation, you must contact the mediation service within 2 months of the date of the letter enclosing the final EHCP. If you are unhappy after mediation is completed, the deadline to send your appeal form to the Tribunal is 1 month from the date you receive the mediation certificate.

• If you do not go through mediation, the deadline to send the appeal form to the Tribunal is 2 months from the date of the letter enclosing the final EHCP.

Further information about mediation is available here.

Making an SEN appeal and the law

An appeal to the Tribunal will typically take 20 weeks to be concluded, unless specific reasons for the appeal to be sped-up apply (such as the child in question making transition to secondary school).

The Tribunal will consider your appeal on the basis of the applicable law.

The nature of the school you want informs what law the Tribunal will have to apply. This will also inform what evidence you will need to present to the Tribunal in support of your appeal.

Requests for a mainstream school

There is a presumption that children will be educated in a mainstream school provided that:

• You agree with it.
• The child or young person’s admission will not have a negative impact on the education of children already at the school.

The current law is relatively new and there have not been any cases reported on this yet (as of April 2015). However, the old law was worded in the same way and the cases that came out about this section required there to be a very high level of clear evidence that the admission of the child or young person with special educational needs (SEN) would cause a distinct and measurable negative impact. This is normally evidenced by information about the impact within a current mainstream school.

Parents do not have the power to veto or rule out mainstream placement. A local authority may still place a child in mainstream even if parents want special placement.

Requests for a special school

Placement in a special school will ultimately come to the question of ‘suitability’. This will involve the local authority (or the Tribunal) considering the extent of the child or young person’s SEN and determining what particular support they need and whether those needs can be adequately catered for within a mainstream setting.

Requests for an independent/non-maintained school

Parents may request an independent/non-maintained school to be named in the EHCP. In these situations, the key issue is largely one of costs. The law requires that children should be educated in accordance with their parents’ wishes, provided that the education is adequate for their needs and is not an unreasonable use of public resources. Young people are also able to express their own wishes about the placement they wish to go to.

The first issue, therefore, is to determine whether the independent school being sought is appropriate to cater for the particular SEN which have been identified. If it is, then you will need to show that the additional costs of placing in an independent school can be justified as being necessary. This often involves a detailed assessment of the support and/or therapies required and the specific provision available within the independent school as compared to a maintained school.

SEN appeal decision

The Tribunal aims to issue a decision within two weeks of the final hearing. This will set out what the decision is and why.

The decision is binding. If you are unhappy with it you can consider a further appeal in very specific circumstances. Before any further appeal is brought you should consider seeking special educational needs legal advice.