SEND Tribunal - How to manage timetable delays

The Special Educational Needs and Disability (SEND) Tribunal hears appeals about the Education, Health and Care Plan (EHCP) process. An EHCP is a legally enforceable document that sets out a child/young person’s special educational needs/disabilities (SEND), the provision required to support the child/young person within an educational setting and the required educational placement. An EHCP is maintained by the child/young person’s home local authority (LA).

When can an appeal be made to the SEND Tribunal?

Appeals to the SEND Tribunal can challenge the content of a final EHCP, including the placement/type of placement named. Appeals can also be submitted at the following stages of the EHCP process:

• Refusal to carry out an EHC Needs Assessment
• Refusal to issue an EHCP
• Cease to maintain an EHCP
• Refusal to carry out a re-assessment of needs

We will focus on standard EHCP content and placement appeals (not transition appeals for secondary or post-16/19 EHCP placements). Once such an appeal is registered, the Tribunal will issue a timetable (week 1) which stipulates key dates that must be adhered to by both the parents LA.

Key stages and deadlines in a standard SEND Tribunal appeal

The timetable generally consists of the following deadlines, with approximate weeks given for reference:

• Week 6 - LA response deadline – the deadline by which the LA must issue a response to the appeal, to include if they object to the proposed amendments to the EHCP. There will also be standard information about the current and proposed placements to supply.

• Week 14 - Further Evidence deadline – the deadline by which any further expert, medical or school evidence is to be submitted to the Tribunal and the LA.  Such evidence will usually be the focus of the scope of changes to the EHCP content (needs and provision) as well as addressing placement. Any evidence submitted after this date would technically be classed as “late evidence” and require the Tribunal’s permission to submit. Such evidence may also not be considered by the Tribunal until the hearing date.

• Week 16 - Case Review Form – the deadline by which both the LA and parents must confirm their witnesses for the final hearing. Witnesses must provide either a report or witness statement. This form must also detail the outstanding issues in relation to the EHCP changes, as well as any other key points to make the Tribunal aware of, such as if a hearing on the papers only is requested  

• Week 16 - Bundle deadline – the deadline by which the LA must produce the bundle of all appeal papers submitted, and to be relied on for the appeal hearing

• Up to month 14 - Final Hearing date – the date of either the remote video hearing or usually a timeframe set for a paper hearing. If a remote video hearing, then this would be for parents/any legal representatives to attend, along with their witnesses. The LA would also attend, potentially by a legal representative, along with any witnesses. Remote hearings can last up to a full day, and sometimes can go over onto two or even three days. A paper hearing would not have anyone attend; instead, the Tribunal would decide on the outstanding EHCP issues on the appeal papers alone.

Why timely hearing dates matter

In the past, the hearing date would have been scheduled within a few months of the bundle deadline, to allow for the evidence submitted to be up to date and so dealt with in a timely manner. It would also allow for witnesses to give their oral evidence sooner after having prepared their written evidence. An earlier hearing date also helped for appeals to be concluded within a timely manner and so reduce delay of confirming the necessary changes to the child/young person’s EHCP content and placement. This, in turn, reduced delays in the child/young person getting the necessary support they require for their SEND, and at a suitable placement.

The current situation

Due to the recent dramatic increase in SEND appeals lodged with the Tribunal (up 55% in 2024 according to the .gov statistics), the Tribunal is experiencing unprecedented strain on their capacity.

One of the major results of the current delays is the gap between the further evidence deadline and the final hearing date; at the time of writing, there can be up to 6-14 months between the further evidence submission deadline, and final hearing. This is based on a remote video hearing being set. If a paper hearing was confirmed instead, then the timescales are still similar. However, complex EHCP appeals may require an in-person remote hearing.

The ever-increasing delays causes issues regarding the evidence gathered. An expert may not be able to assess and prepare a report in time for the evidence deadline. This may require a request for late evidence. Even if an expert can assess and provide a report to meet the evidence deadline, this report could become at least 6 months’ old by the hearing date. There may have been updates to the child/young person’s development/progress during that time, or updates in the appeal that require the expert to provide an addendum report or witness statement. Visits to additional placements may also be required; such additional work with experts can cause further cost to the parents.

There is also the potential difficulty regarding securing the experts for the hearing date so far in advance. Some experts may be unable to hold dates for so long, or they may not be able to confirm about their availability.

Potential placements may also only be able to hold open an offer of a place for a limited about of time.

Ultimately, the long gap between further evidence and a final hearing has a negative impact on the children/young people at the centre of the EHCP appeal. Such delays can cause missed placement starts and receiving the necessary provision to meet their SEND. Some children/young people may be out of placement for longer periods of time because of the appeal timetables.

Available options

• On lodging an appeal, make it clear if there are any known placement deadlines that need to be considered in setting the appeal timetable and hearing date. Also make it clear if a child/young person is currently out of placement; the Tribunal can be asked to set earlier hearing dates in such cases, however this will still depend on their capacity

• Review the appeal timetable once issued and consider if the deadlines are achievable

• Seek an extension for evidence submission – to allow time for experts’ assessments

• Request an earlier hearing date – what evidence do you have to support this? Will a placement offer expire? Is the child/young person out of placement? Is there a risk that the child/young person could end up out of placement if the hearing date is not brought forward?

• Consider if a paper hearing is appropriate for your appeal – the Tribunal may be able to allocate an earlier date/hearing window for these (depending on their availability).

• For any request to amend the appeal deadline, the LA’s views must be sought before submitting to the Tribunal. There is a set form called a Request for Change form that must be completed for these, along with copies of relevant correspondence/evidence.

Getting specialist legal advice

We recommend getting specialist legal advice if you have a query regarding the best way to manage SEND Tribunal timetables and potential delays, including in respect of a final hearing date. The Boyes Turner Education Team can be  contacted on 0118 467 6547 or via email.

Sources

Hearing SEND appeals fairly: responding to possible change to SEND Tribunal rules (November 2024)

SEND tribunal caseloads soar: Solicitor calls for urgent action in managing education appeals Law Gazette (December 2024)

Tribunal Statistics Quarterly: July to September 2024 - GOV.UK