Appeals Process – Ending an appeal

Unopposed appeals

An appeal that the Local Authority (LA) concedes before they have to make their official response thirty days after you lodged your appeal.  Sometimes the LA will inform the tribunal that they will not oppose an appeal before it has to make its official response.  In this case the tribunal will treat the appeal as if it was decided in your favour. The tribunal will not make any orders as to how the appeal will be concluded.

You will have to be absolutely clear about what the grounds of appeal were and ensure that LA correct all problems with the EHCP. The LA have certain timescales they must keep to when ending an appeal in this way. If the LA doesn’t amend the EHCP to your liking you may have to consider applying to the tribunal to have the appeal reinstated.

Timescales

Refusal to Assess/Reassess

If your appeal was about a refusal to assess or a review or reassessment the Local Authority (LA) must notify you that they must carry out an assessment or reassessment within 2 weeks.

If the LA decides not to issue an EHC plan the Local Authority must notify you of the decision within 10 weeks, giving reasons for its decision.

If the LA decides to issue an EHC plan it must send you a finalised plan within 14 weeks.

Contents

Where the appeal was about the contents of the EHCP or a refusal to amend the LA must issue the plan to you within 5 weeks.

Section I (placement appeal)

Where the appeal was about the school or other institution to be named in EHCP the LA must amend the plan to include the name of the school you wanted within or 2 weeks or if it is also a contents appeal within 5 weeks.

Refusal to Issue

Where the appeal is about a refusal to issue an EHCP the LA must issue draft plan within 5 weeks and issue a final plan within 11 weeks.

Ceasing a plan

The LA must continue to maintain a plan and if the LA has also agreed to amend they must amend the plan within 5 weeks.

Acceptable delays

The local authority need not comply with the time limits above it is impractical to do so because:

  1. exceptional personal circumstances affect the child or their parent or the young person during the relevant period;
  2. the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or
  3. any of the circumstances referred to in SEND Regulation 13(3) apply. (Regulation 10.4 a-d below).

Opposed Appeals

Consent agreements/orders, ending an appeal after a response has been made:

Often an appeal that was opposed by the local authority when they made their response will reach a point where there is no further dispute, all of the issues have been settled so there is no point in continuing to the tribunal and the appeal needs to be ended.

In this case the appeal would be ended by the LA and you making a consent agreement (or order). The consent agreement basically lists the issues that have been settled and lists what the LA and you agree to do in order to settle any outstanding issues and end the appeal.

If the tribunal are happy with the agreement, they will issue an order detailing what must be done and ending the appeal.

See our guidance “Appeal Process – Consent Orders”.

Compliance with the orders of the First-tier Tribunal following a consent agreement/order:

Ordered to Cease an EHCP

If the order dismisses an appeal against a decision to cease an EHCP, the LA must cease to maintain the EHCP immediately.

Ordered to assess or reassess

If your appeal was about a refusal to assess or a review or reassessment the Local Authority (LA) must notify you that they must carry out an assessment or reassessment within 2 weeks.

If the LA decides not to issue and an EHC plan the Local Authority must notify you of the decision within 10 weeks, giving reasons for its decision.

If the LA decides to issue an EHC plan it must send you a finalised plan within 14 weeks.

Ordered to make and maintain an EHC plan (refusal to issue)

The LA must send you a draft plan within 5 weeks of the order being made and send a copy of the finalised plan within 11 weeks.

Case referred back to the LA

If the order refers the case back to the LA for it to reconsider, the LA must do so within 2 weeks and must either send a copy of the draft EHCP or give notice of its decision not to maintain an EHCP together with mediation and appeal advice.

Ordered to amend the EHCP

If the order requires a LA to amend the special educational provision (SEP) specified in an EHC plan, the LA must issue the amended EHC plan within 5 weeks.

Ordered to amend the school named

If the order requires the LA to amend the name of the school or other institution or the type of school or other institution specified in the EHCP, the LA must issue the amended EHCP within 2 weeks.

Ordered to maintain and amend a plan

If the order requires the LA to continue to maintain an EHCP in its existing form, the LA must continue to maintain the EHCP.

If ordered to continue to maintain and amend an EHCP, the LA must continue to maintain the EHCP and amend the EHCP within 5 weeks.

When the tribunal have made an order the tribunals job is finished.

Once Tribunal have issued their decision, they cannot take any further actions.  They have no power to supervise how and when the order is carried out.  Even if the LA does not do what has been ordered within the time limit, Tribunal cannot take further action.  Parents would need to pursue as a complaint.

Acceptable delays

The LA need not comply with the time limits above it is impractical to do so because:

  1. exceptional personal circumstances affect the child or their parent or the young person during the relevant period;
  2. the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or
  3. any of the circumstances referred to in regulation 13(3) apply. (Regulation 10.4 a-d below).

(4) The local authority need not comply with the time limit referred to in paragraph (1) if it is impractical to do so because—

(a) the authority has requested advice from the head teacher or principal of a school or post-16 institution during a period beginning one week before any date on which that school or institution was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(b) the authority has requested advice from the person identified as having responsibility for special educational needs (if any) in relation to, or other person responsible for, a child’s education at a provider of relevant early years education during a period beginning one week before any date on which that provider was closed for a continuous period of not less than 4 weeks from that date and ending one week before the date on which it re-opens;

(c) exceptional personal circumstances affect the child or the child’s parent, or the young person during that time period or

(d) the child or the child’s parent, or the young person, are absent from the area of the authority for a continuous period of not less than 4 weeks during that time period.

SEND Regulation 10.4

The full text of the regulations quoted above can be found in the SEND regulations 2014 (44 and 45) which can be downloaded from legislation.gov.uk.