If a dispute arises between the parents and young person and the local education authority, that dispute may have to be resolved by an appeal. Where there is an argument about provision or placement, where the parents’ preference would have considerable cost consequences for the local education authority, an appeal becomes almost inevitable. Such an appeal is made to the First Tier Tribunal, the successor body to the former SENDIST.
Anyone considering such an appeal would wish to consider the tribunal website, which helpfully explains in plain English, as opposed to that dialect called Legal-ese how an appeal is made, and what can be included within the scope of an appeal. The tribunal website can be found here:
SEN law is a creature of statute. It follows that the appeals process is statutory. A right of appeal from decisions of a local education authority arises from section 51 of the Children and Families Act 2014 which provides:
(1) A child’s parent or a young person may appeal to the First-tier Tribunal against the matters set out in subsection (2), subject to section 55 (mediation).
(2) The matters are—
(a) a decision of a local authority not to secure an EHC needs assessment for the child or young person;(b) a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan;
(c) where an EHC plan is maintained for the child or young person—
(i) the child’s or young person’s special educational needs as specified in the plan;
(ii) the special educational provision specified in the plan;
(iii) the school or other institution named in the plan, or the type of school or other institution specified in the plan;
(iv) if no school or other institution is named in the plan, that fact;
(d) a decision of a local authority not to secure a re-assessment of the needs of the child or young person under section 44 following a request to do so;
(e) a decision of a local authority not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44;
(f) a decision of a local authority under section 45 to cease to maintain an EHC plan for the child or young person.
(3) A child’s parent or a young person may appeal to the First-tier Tribunal under subsection (2)(c)—
(a) when an EHC plan is first finalised for the child or young person, and
(b) following an amendment or replacement of the plan.
(4) Regulations may make provision about appeals to the First-tier Tribunal in respect of EHC needs assessments and EHC plans, in particular about—
(a) other matters relating to EHC plans against which appeals may be brought;
(b) making and determining appeals;
(c) the powers of the First-tier Tribunal on determining an appeal;
(d) unopposed appeals.
(5) Regulations under subsection (4)(c) may include provision conferring power on the First-tier Tribunal, on determining an appeal against a matter, to make recommendations in respect of other matters (including matters against which no appeal may be brought).
(6) A person commits an offence if without reasonable excuse that person fails to comply with any requirement—
(a) in respect of the discovery or inspection of documents, or
(b) to attend to give evidence and produce documents, where that requirement is imposed by Tribunal Procedure Rules in relation to an appeal under this section or regulations under subsection (4)(a).
(7) A person guilty of an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
It follows that the right of appeal is bounded by these provisions: the tribunal cannot assume a wider jurisdiction to deal with matters where it has no power to do anything about them. The sole exception to this, relates to the power to give “recommendations” but in public law terms, these are toothless utterances.
One of the reforms introduced in the 2014 Act was an attempt to raise the profile of ADR: by making specific reference to and directing the parties towards mediation. Mediation, however, in this context is not the “full fat” version provided by legally qualified mediators in private practice, who would typically charge £1500 plus VAT for a day of their time mediating a dispute, and who often provide a very valuable service: the best of them act as the old style in chambers, giving indications to the parties as to what could happen to their cases, if they are litigated. Instead mediation under the Act, is a much more low key and homespun affair, and unlikely to be efficacious where the issue between the parties, is an expensive residential placement, or not, as the case may be.
The right to appeal arises however after there has been compliance with the requirement of section 55 which imposes a quasi-obligation to at least consider mediation: if a parent or child elects not to pursue mediation, they do not have to, but must obtain a certificate from a mediator to this effect:
(1) This section applies where a child’s parent or young person intends to appeal to the First-tier Tribunal under section 51 or regulations made under that section in respect of—
(a) a decision of a local authority, or
(b) the content of an EHC plan maintained by a local authority.
(2) But this section does not apply in respect of an appeal concerning only—
(a) the school or other institution named in an EHC plan;
(b) the type of school or other institution specified in an EHC plan;
(c) the fact that an EHC plan does not name a school or other institution.
(3) The parent or young person may make the appeal only if a mediation adviser has issued a certificate to him or her under subsection (4) or (5).
(4) A mediation adviser must issue a certificate under this subsection to the parent or young person
(a) the adviser has provided him or her with information and advice about pursuing mediation under section 53 or 54, and
(b) the parent or young person has informed the adviser that he or she does not wish to pursue mediation.
(5) A mediation adviser must issue a certificate under this subsection to the parent or young person if the adviser has provided him or her with information and advice about pursuing mediation under section 53 or 54, and the parent or young person has—
(a) informed the adviser that he or she wishes to pursue mediation under the appropriate section, and
(b) participated in such mediation.
Following the familiar structure in SEN law, although the rights are contained in the statute, much of the detailed is contained in the delegated legislation and in particular the Regulations. Regulation 43 of the Special Educational Needs and Disability Regulations 2014 provides:
(1) Before determining any appeal, the First-tier Tribunal may, with the agreement of the parties, correct any deficiencies in the EHC Plan which relate to the special educational needs or special educational provision for the child or the young person.
(2) When determining an appeal the powers of the First-tier Tribunal include the power to—
(a) dismiss the appeal;
(b) order the local authority to arrange an assessment of the child or young person under section 36 or a reassessment under section 44(2) where the local authority has refused to do so, where the appeal made under section 51(2)(a) or (d);
(c) order the local authority to make and maintain an EHC Plan where the local authority has refused to do so, where the appeal is made under section 51(2)(b);
(d) refer the case back to the local authority for them to reconsider whether, having regard to any observations made by the First-tier Tribunal, it is necessary for the local authority to determine the special educational provision for the child or young person, where the appeal is made under section 51(2)(b);
(e) order the local authority to continue to maintain the EHC Plan in its existing form where the local authority has refused to do so, where the appeal is made under section 51(2)(f) ;
(f) order the local authority to continue to maintain the EHC Plan with amendments where the appeal is made under section 51(2)(c), (e) or (f) so far as that relates to either the assessment of special educational needs or the special educational provision and make any other consequential amendments as the First-tier Tribunal thinks fit;
(g) order the local authority to substitute in the EHC Plan the school or other institution or the type of school or other institution specified in the EHC plan, […]3 where the appeal is made under section 51(2)(c)(iii) or (iv),(e) or (f) ;
(h) where appropriate, when making an order in accordance with paragraph (g) this may include naming—
(i) a special school or institution approved under section 41 where a mainstream school or mainstream post-16 institution is specified in the EHC Plan; or
(ii) a mainstream school or mainstream post-16 institution where a special school or institution approved under section 41 is specified in the EHC Plan.
Consideration of the procedural requirements of an appeal, will be considered later on this blog.