SEND tribunal appeals

You must complete an appeal form providing your reasons for appealing. Please ensure you complete the correct form, these can be found at; https://www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability  

Appeal forms and supporting documents can now be submitted electronically to send@justic.gov.uk 

Along with your appeal form it is useful to enclose any evidence or information (photocopies) that supports your appeal. You must also include your mediation certificate to show you have spoken to the mediation adviser and either considered mediation or entered mediation (unless you are only appealing the name of the education setting in section I of an EHC Plan)

Burden of proof

Depending on the issue there is an obligation on either yourself or the LA to prove your point. The burden of proof at the SEND Tribunal is on the balance of probabilities. Please see who has the burden of proof for each issue below.

A decision by a local authority not to carry out an EHC needs assessment or re-assessment – Parents/Young Persons burden to prove they have met the legal test for assessment contained in s.36(8) of the Children and Families Act 2014. There are additional considerations under this law for children under compulsory school age (s.20(3)) and young people over 18 (s.36(10))

A decision by a local authority that it is not necessary to issue an EHC plan following an assessment - Parents/Young Persons burden to prove they have met the legal test for assessment contained in s.37(1) of the Children and Families Act 2014.

The description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified – the burden of proof is on the Parents/Young Person.

The school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified –

• If the placement being requested is a type contained in s.38(3) Children and Families Act 2014 then the burden of proof is on the LA to prove one of the exceptions in s.39(4) Children and Families Act 2014 which would dislodge the parents preference.
• If the placement requested is not contained in the s.38(3) group then the  burden would be on parents/young person to prove that their choice of placement is compatible with the provision of efficient instruction and training and would avoid unreasonable public expenditure.

The types of setting included under s.38(3) Children and Families Act 2014 include;

• Maintained school
• Maintained nursery school
• Academy
• Institution within the further education sector in England
• Non-maintained special school
• An institution approved by the Secretary of State under section 41.

A decision by a local authority to cease to maintain an EHC plan – this would be the local authority’s burden to prove they have met the legal test contained in s.45(1) of the Children and Families Act 2014. For young people over 18 there are also additional requirements at s.45(3) of the Act.

You can find the Children and Families Act 2014 at; http://www.legislation.gov.uk/ukpga/2014/6/contents/enacted

Take a look at our Youtube video on ‘Things to consider for a SEND Tribunal Appeal – with a focus on section I’: