Appealing your child’s EHCP can feel overwhelming and distressing, but we’re here to help. When you first contact us, your case will be assessed free of charge, by our specialist education lawyers. We’ll listen to you and also explain the costs involved and agree a leading lawyer who will be available to talk to you about your case when you need. Every EHCP appeal case is different, with its own unique facts and circumstances. Whilst some steps are mandatory, others are not and there is no “one size fits all”.
The aim of this guide if to provide some general guidance on the process, but we work with you to pursue your case in the best way for you.
You will have a lawyer leading on your case who you can talk to when you need.
What is an EHCP?
An education, health and care plan is a legal document that sets out a child or young person’s special educational needs, the provision required to meet those needs, and educational setting. It may also contain health and social care needs and provision.
Stage 1 – Initial assessment
When you first contact us, we offer a free initial assessment to see how we may best help you. In this call we will:
- Listen to you and talk through what has happened.
- One of our specialist education lawyers will consider how we may help with any legal case and will offer some initial advice as to how we can best help you and what else can be done.
- We will assess the case and advise you whether a legal case is likely to succeed. If we are unable to help, we will try to signpost you to other organisations who may be able to help, for example, advocates or charities.
Stage 2 – Obtaining supporting evidence
If we consider that the appeal is likely to succeed, we will
- Apply for your child’s educational records, SEND file and any records of engagements with outside agencies or professionals and arrange for these to be sorted for ease of access.
- Instruct independent experts to assess and advise on any special educational needs, the provision required to meets those needs, appropriate outcomes and to consider the type of setting or package required.
- In more complex cases, instruct independent medical and/or social care experts to advise on any health and social care needs and provision that may be required.
- Review all the evidence obtained and use it to inform the basis of the appeal.
Often the obtaining of evidence will run alongside the appeals process in the run up to a tribunal hearing.
Stage 3 – Starting the appeals process
The appeal must be lodged with the tribunal within 2 months of the date on the Local Authority’s decision letter enclosed with the final EHCP issued, or one month from the date on the mediation certificate, whichever is later.
The steps involved in starting an appeal are:
- Reviewing the EHCP in question and any accompanying documents.
- Obtain a mediation certificate. You do not have to mediate however, a certificate from the relevant mediation organisation must be obtained in order to submit an appeal.
- Preparing the appeal for submission to the tribunal which includes :
- an appeal form (the official documents that needs to be submitted to start your appeal)
- the grounds for the appeal (a statement of your case) which will set out the particulars of the appeal
- reports on the special educational, medical and social care needs and provision.
- statements from the educational settings
4. Lodging the appeal with the tribunal. The Tribunal must receive the appeal form within 2 months of the date on the Local Authority’s decision letter enclosed with the final EHCP issued, or one month from the date on the mediation certificate, whichever is later.
Stage 4 – The Tribunal timetable
Once the appeal has been lodged:
- The appeal is registered. Usually this is 20 working days from the date the appeal was lodged. Upon registration, the tribunal sends out the registration documents to all parties which includes important deadlines and information.
- The Local Authority’s response to the appeal will be due 6 weeks from the date of registration.
- All evidence must be provided to the other party as soon as it becomes available and at the latest, by the final evidence deadline.
- Both parties must complete a case review form showing any outstanding issues and listing witnesses for hearing
- The Local Authority must prepare and issue the tribunal bundle which contains all the written evidence to be considered within the appeal.
- A case management review will take place prior to the final hearing for the tribunal to consider if the appeal is ready to be heard.
Stage 5 – Final hearing
We always prepare your case as if it will go to hearing, however, 50% of all our EHCP appeals are settled prior to the final hearing.
If there is a hearing, then you will usually be represented by a barrister. The judge will hear evidence from witnesses for both sides as well as the evidence of the independent experts. The judge and panel members will convene after the hearing, and the order is usually received 10 days after the hearing. The length of the hearing depends on the complexity of the case but can range from half a day up to 2 days.
Settled by consent
During an appeal, we always consider whether alternative dispute resolution methods are useful in resolving any of the issues at hand, and 50% if our cases are settled outside of tribunal.
The most common method is ‘without prejudice’ where an offer is made to the other side to see whether it’s possible to find a solution that all parties are willing to accept. In this case, the negotiations are kept private and cannot be used should the matter still go to hearing.
Whichever way the outcome is achieved, you will be fully involved in the process.
We hope you’ve found this information helpful. Your legal adviser will be happy to answer any further questions once they understand your circumstances in more detail. If you would like to book a meeting, please get in touch. We can meet with you in person or by video call.
