REFUSAL TO ISSUE (RTI)
If your child or young person has had an EHC Needs Assessment and the LA has decided not to issue an EHCP, it must give you a decision letter “as soon as practicable” and at the latest within 16 weeks of the date the request for assessment was made (unless limited exceptions apply - these are set out in Regulation 10(4) of the SEND Regulations 2014).
The decision letter must give the reasons for the LA’s decision.
To be able to lodge an appeal you MUST have a mediation certificate, and you MUST lodge the appeal within TWO months of receiving the decision letter from the Local Authority or ONE month from the date of the mediation certificate, whichever is later.
The decision letter MUST provide your right to appeal and who you can contact for information and advice.
To lodge the appeal, you need to have the following:
- The letter of the decision of refusal to issue an EHCP.
- Mediation certificate.
- The EHC Needs Assessment paperwork and any other evidence you feel relevant.
If the decision concerns a child, it is the parent who has the right of appeal.
If the decision concerns a young person, then it is the young person who has the right of appeal. Where a young person cannot make a particular decision for themselves, because they ‘lack capacity’ under the Mental Capacity Act 2005, their parent or another representative can appeal on their behalf.
When should an EHCP Be Issued?
The LA must issue an EHCP if, after carrying out an EHC needs assessment, they decide it is necessary for your child to receive special educational provision through an EHCP.
The key question the LA must ask is:
“Can this child or young person get the support they need without an EHCP?”
If the answer is no, then the LA must issue an EHCP!
What Does “Necessary” Mean
The law doesn’t give a strict definition of “necessary,” which means the LA must look at your child’s individual situation.
If your child’s needs cannot be met through SEN Support then an EHCP may be necessary.
When making your case, your focus should be on proving and convincing the SEND Tribunal that an EHCP is necessary.
Will your child or young person receive the required special educational provision without an EHCP?
- If no, then an EHCP is necessary.
- If yes, then an EHCP is not necessary.
How do you prove that an EHCP is necessary?
You need to prove why it is necessary for the special educational provision required to be set out in an EHCP.
Identifying the special educational provision required…
Start by looking at the information and advice gathered by the LA during the EHC Needs assessment process.
The law says this must cover all of your child or young person’s SEN and the special educational provision (SEP) they require, and the outcomes intended to be achieved.
The Code says (at paragraph 9.51) that the evidence and advice must be:
“Clear, accessible and specific and provide advice about outcomes relevant for the child or young person’s age and phase of education and strategies for their achievement.”
A useful tip is to go through the assessment evidence with two different coloured highlighter pens. Highlight all the identified SEN in one colour, and SEP in another.
Check that…
- Each identified SEN matched with appropriate special educational provision.
- Is that special educational provision clear and specific?
- Is it outcomes-focused?
- Did the LA conduct the assessment properly and get all of the legally required advice and information?
If the LA did not carry out the EHC needs assessment properly, you should ask them to go back to the relevant professional(s) and ask them to provide any missing information.
If they won’t do this, you can ask the SEND Tribunal to order it to do so during your appeal, using the Request for Change form.
You can submit evidence of your own to show that the assessment evidence is wrong or incomplete.
For example:
- Does it fail to address some of your child or young person’s SEN?
- Does it downplay the severity or effects of that SEN?
- Does it under-estimate the special educational provision that will be required?
- Does the proposed special educational provision reflect what is available locally, rather than what is actually needed?
This evidence could include:
- Independent reports from professionals such as educational psychologists or speech therapists
- Evidence from teachers or other people who know your child or young person well
- School/ college reports
- Home-school diaries, or
- Examples of your/your child’s work overtime.
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.
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.
If you are having difficulty getting information which is relevant to your case from the LA, you can write to the SEND Tribunal explaining what it is and ask the SEND Tribunal for a ‘direction’ to make the LA release it.
You should use the Request for Changes form to do this.
Unless the LA has a good reason for not providing the information the SEND Tribunal will order the LA to release it.
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
