APPEALING SECTIONs B & F (Contents) of an ehcp
This guidance is the same for appealing the LA’s decision to maintain the EHCP (not agreeing to make amendments) following an Annual Review. In such cases, the LA will give reasons for their decision but, if this is not provided, you can ask them why they have made this decision.
YOU CAN ONLY LODGE THE APPEAL ONCE THE EHCP HAS BEEN FINALISED.
The date of the final EHCP and the decision letter is the starting point for the timeframe within which you can lodge an appeal.
This means you have exactly TWO MONTHS from that date to lodge your appeal.
Please ensure to check the specific dates on your document, it is important to adhere to these deadlines to ensure your appeal can be lodged.
Before you can lodge an appeal, you need to obtain a mediation certificate.
The exception is when you are appealing on section I: the named placement only.
Click here for information on Mediation
An EHCP must fully describe a child / young person’s special educational needs (SEN) and specify the provision (SEP) required to meet the identified needs and outcomes as agreed in the EHCP. This then provides the evidence to which type of education setting / placement is most appropriate for the child / young person.
If sections B and F do not accurately set out your/child’s needs and the provision required to meet those needs, the Tribunal may conclude that the LA’s choice of school is suitable.
Therefore, it is important to ensure that section B and F are specific and quantifiable.
What amendments might be needed to Section B of the EHCP?
Section B of an EHCP must specify all the special educational needs (“SEN”) of the child or young person.
The first step with a Section B appeal will be to identify where the SEN are set out. If any SEN are included in other sections of the EHCP, they will need to be moved to Section B.
You may want to appeal section B if it:
- Does not include some of your child or young person’s learning difficulties or disabilities, and this means section F is missing some provision.
- Overestimates or downplays your child or young person’s difficulties and this has an impact on levels or type of provision and/or which setting has been named, or
- Misconstrues your child or young person’s learning difficulties, for example where there is a difference of opinion over a diagnosis, or overemphasises one learning difficulty over another.
- You do not need to specify every single amendment you wish to make, but you will need to explain why you want changes to be made.
What amendments might be needed to Section F of the EHCP?
Section F of an EHCP must specify all the Special Educational Provision, linked to the Special Educational Needs specified in Section B.
You may wish to appeal Section F if it…
- Does not include provision for each and every SEN in Section B (or which you believe should be identified in Section B).
- Wrongly omits health or social care provision which educates or trains the child or young person (for example, speech and language therapy).
- This must be treated as special educational provision (SEP). (Section 21(5) of the CAFA 2014. If any such provision is included in Sections G and H it will need to be moved into Section F.
- Is not sufficiently clear, as described in the EHCP DRAFT CHECK GUIDANCE
- Section F must be specific. It should be clear what support is to be provided, who is going to provide it, where it is going to be provided; for how long; and for how often.
Section F considerations for young people
Particularly in appeals concerning a young person, it will be necessary to be clear how many days a particular placement is going to provide.
Most Further Education colleges provide courses which run for a limited number of hours in a week. If a young person needs a full-time five day a week package, then this will need to be specified in section F.
This can include, for example:
- time spent at different providers
- support for independent study, and
- non educational activities such as volunteering, work experience and support to help you develop skills you need for adulthood and social situations.
If a course is normally offered over three days but needs to be spread over four or five days because it is likely to lead to better outcomes, make sure this is made clear.
Evidence
If you are requesting changes and amendments to an EHCP, you will need to provide evidence to support the changes you want made.
Please note that there are page limits in this type of appeal, so think carefully about what evidence best supports your appeal.
Professional reports
Key evidence about your child or young person’s special educational needs (SEN) and the provision required to meet that SEN will usually be found in reports from professionals.
If the EHCP under appeal has just been issued following an EHC needs assessment, then there will be recent reports obtained as part of the assessment. There may also be reports you supplied to the LA as part of the statutory assessment which they did not take into account.
If you don’t have recent reports or supporting reports, you will need to look for professional evidence to support your arguments.
Useful sources of expert opinion include:
The health service: if your child or young person has been seen recently by a specialist or is receiving help from a health professional such as a speech and language therapist, they may be able to comment on your child’s SEN and what support they require.
School or college: as well as evidence from the current school or other institution, it may be helpful to request reports from teachers at a previous school or other setting if your child or young person has recently moved.
Privately obtained reports from independent professionals, such as an educational psychologist, occupational therapist or speech and language therapist. The relevant professional organisation (such as the British Psychological Society for educational psychologists) publishes names of members who can provide a private assessment. If the professional specialises in the difficulties experienced by your child or young person their views will have more weight.
Private reports can be very expensive, so you may wish to consider:
Checking your eligibility for Legal Aid, as this could cover the cost of an independent report
See the link on where to get help with an appeal for more information.
Contacting voluntary organisations that specialise in a particular disability who may be able to provide an assessment at a modest or subsidised cost, and
Contacting voluntary organisations who support parents going to the SEND Tribunal to obtain privately instructed reports.
FILLING OUT THE SEND 35 FORM
The SEND Appeal forms are online PDF’s and unless you have specific software on your laptop, you are unable to save and then return to the form.
We recommend using a separate word document, you can either copy and paste into the boxes on the form, or if there is not enough room (the boxes do not expand) you can type in the boxes, “please see separate sheet” in the boxes and set your reasons out properly in a separate document. send these as attachments with the appeal form.
There is now an online form for all appeals you need all your paperwork ready to upload to be able to go through the form.
YOUR REASONS FOR APPEAL ARE WHERE YOU SET OUT WHY YOU THINK THE LAs DECISION IS WRONG
- Make a note of your appeal deadline as soon as you receive it
- Keep it short and to the point, answers clear, organised, concise, and to the point
- Do not overwhelm the SEND Tribunal with irrelevant evidence and history. If there is a long history of difficulties between you and the LA, let the evidence (for example, letters between you and the LA) speak for itself.
- Back up your points with evidence. Include evidence from professional reports, statements about needs and provision, and the school you want.
- Refer to the legal issues and your own evidence documents for each of your points
- Do not worry if you do not have all your evidence ready to send it with the appeal form. You can continue to submit evidence after your appeal has been registered with the SEND Tribunal
If you can do so, it is best to send in all your written evidence with your appeal form.
That way, you have the main points of your case set out with supporting evidence right from the start, this then allows the LA to respond properly.
There will be a ‘final evidence deadline,’ so if you think you need to send in evidence later in the process, you can tell the SEND Tribunal what you expect to get and when by. Do make sure to submit everything by the deadline you are given.
- Separate your points into paragraphs
- Number your paragraphs or organise them under headings
- Ensure you fill in the form correctly
- Make copies of your bundle and keep the originals for yourself.
WHEN YOU LODGE THE APPEAL, YOU WILL NEED...
- A signed and dated letter from the LA giving you the right of appeal
- Mediation certificate – not required for Section I only appeals
- Completed SEND 35 form, with your reasons for making the appeal
- Final EHCP and all the documents listed in Section K
- Evidence - To support your appeal (you can add to this later up until the Tribunal’s evidence deadline so don’t let this delay submitting your appeal.
- A list of all the documents - All of the documents enclosed with the application (it will be helpful to the Tribunal if you can put your evidence in chronological order and then write out a list explaining what each document is.
EHCP CHECKLIST
Make a note of your appeal deadline.
Signed LA decision letter
Signed mediation certificate
Complete SEND35 appeal form with your reasons
The EHCP and all documents listed in Section K
Evidence to support the appeal
Add a chronological list of all the documents enclosed
Make scans/photocopies of your appeal, keep the originals for your records
Register your appeal: submit a COPY of your appeal to the SEND Tribunal
Submit any further evidence that is relevant up until the evidence deadline
Where to submit your appeal -
Do not send original documents to the Tribunal.
Use photocopies or scanned documents and keep the originals.
Do not send photos of reports as they can easily cause your report to exceed the Tribunal’s 14MB attachment data limit and may not be received
Email send@justice.gov.uk write in the subject line of your email: ‘New Appeal’.
Telephone number to ask questions or to confirm receipt: 0300 303 5857
