Appeal against the Local Authority's refusal to issue an Education Health Care (EHC) plan.

 Before the Appeal

See How to Appeal for information about the appeal process.  

 

Remember you only have two months to submit your appeal (the deadline runs from the date on the letter from the Local Authority informing you of their decision not to issue an EHC plan).  

 

You will also need to show that you have considered Mediation: you can either attend a Mediation meeting or obtain a Mediation Certificate which will be needed before your appeal can be registered with the Tribunal.  Further information about Mediation can be found here.

 

Can I Appeal?

You will need to prove that it is 'necessary' for the Local Authority to issue an EHC plan for your child.

 

In this type of appeal you will need to show the Tribunal that your child's needs cannot be met by their current school without an EHC plan.

 

The Local Authority will have already undertaken an EHC needs assessment, so the first step is to look at the reports provided by all the professionals that the Local Authority must, by law, have approached for information and evidence (see SEND Code of Practice, Section 9.49).  

 

There must be evidence/reports from:

  • The parents or young person 
  • The school or college (if attending)
  • Whoever is teaching the child if they are not at school
  • Any health professional involved
  • An educational psychologist
  • Social care professionals
  • From Year 9 onwards, advice about transition

There can be evidence/reports from:

·       Other professionals, as requested by parents, such as the child’s GP

 

Are there any reports missing?

 

Check that the reports provided contain the 'information and advice' the Local Authority should have obtained as follows:

  • What are the needs of the child or young person?
  • What provision may be required to meet their needs?
  • What are the outcomes that are intended to be achieved by the child or young person receiving that provision?

What next?

If the reports are unclear, or don't provide the above information, write to the professional who wrote the report asking them for the above information.  Keep a copy of your letter, which will form part of your appeal evidence.   For more information about the EHC assessment, together with a template letter that can be used for this purpose, see here.

 

Is the school your child attends supporting the need for your child to have an EHC plan?  

Remember, although it is not a legal requirement, the Local Authority will expect the school to show that they have spent a minimum of £6,000 on provision for your child.  In many cases this will be through the provision of a teaching assistant but could include Speech and Language therapy, Specialist Teacher input etc.  

 

In most cases, the Local Authority will try to argue that, while they agree your child has special educational needs, their needs can be met by the school from the school's own budget.  

 

If the school is not prepared to support your appeal, then it is important to establish the exact type and level of additional provision being made for your child in the school.  How much of this is being shared by other pupils?  

 

You have the right to ask to see your child's school records.  It is important to keep good relations with your child's school (this is particularly important in cases where the school is not supporting your appeal).

 

A useful approach that may provide useful evidence for your appeal is to write to the SENCo (or Headteacher) once you have lodged your appeal to ask them to say what would happen to the provision being made for your child if another child with a high level of needs was to join the class - or the school?  Would this mean that your child's current provision could not be guaranteed without an EHC plan?

 

Transition

Another key issue is whether your child is due, within the next twelve months, to transfer to another stage of education (for example, from primary to secondary).  The Local Authority (and the Tribunal) have to consider the forthcoming transfer when making a decision.  For example, a child with quite high levels of special educational needs might cope in a primary school they know well but would not cope in a large secondary school without the type or level of provision that would require an EHC plan to be issued.

 

Legal test

Sections 36 and 37 of the Children and Families Act 2014, Regulations 6, 7 and 8 of the SEND Regulations 2014.

 

Important: SEND Code of Practice (2015):  Chapter 9, paragraphs 9.53 - 9.60 

 

How to Appeal