An Education, Health and Care Plan (EHCP) is a legal document that describes a child’s special educational, health and social care needs and the support they will receive to meet those needs.

To obtain an EHCP a child must undergo an Education, Health and Care needs assessment conducted by the local authority. Once an EHCP has been issued, the local authority must review the plan at least annually. 

If you are not happy with the contents of your child’s EHCP, including the school or other placement named in the plan, you may be able to appeal to the Special Educational Needs and Disability Tribunal (SEND Tribunal). Below we answer some of the key frequently asked questions about this process.

How do I find out about my appeal rights?

Alongside any final EHCP, you should receive a letter from your local authority setting out your appeal rights.

If you are unsure whether you have the right to appeal your child’s EHCP, our specialist education lawyers will be able to advise on appeal rights and on challenging failures in providing special educational needs support.

Do I need to engage in mediation with the local authority before appealing?

No, but you will usually need a mediation certificate before being able to appeal. You can obtain a certificate by speaking with your area’s mediation service who will provide you with advice about engaging in mediation. This is free, and you do not need to enter mediation to obtain a certificate. The letter you receive with your final EHCP should include details of the mediation service in your area.

What is the deadline for appealing an EHCP?

You must lodge your appeal within:

• Two months of the final EHCP being issued, or
• thirty days from the date of the mediation certificate 

– whichever is later.

What if I miss the deadline to appeal the EHCP?

If you have missed the deadline to bring an appeal, you may still be able to bring a late appeal. However, you will need to request an extension and the Tribunal Judge will only allow one if there is a good reason for the delay in filing your appeal.

When requesting an extension you will need to explain:

• Why the appeal is late
• Why you think the appeal would be successful
• Why the local authority can still engage fairly in the appeal despite the delay
• Why you should not have to wait for an annual review or ask for another assessment

If you have missed the deadline, you need to act quickly as you must send the completed appeal form to the SEND Tribunal as soon as possible.

Can I request an early review of the EHCP instead?

If you are out of time but are particularly concerned about your child’s current education, it is possible to request an early review of an EHCP. Early reviews are commonly held where there is an urgent need to amend an EHCP because a child’s needs have changed, or because the plan is no longer meeting their needs. This might be following the breakdown of their school placement or a recent diagnosis that affects your child’s needs and the support they require. If the early review does not result in the desired amendments, you are able to appeal once the local authority issues the final plan.

If the local authority refuses to hold an early review, you are able to request a reassessment of your child’s education, health and care needs. Otherwise, you may be able to seek a judicial review of the local authority’s refusal if there are very good reasons why they should agree to your request.

If you cannot challenge their refusal, you will have to wait until the next annual review to seek amendments to the EHCP and begin an appeal.

What sections of the EHCP can be appealed?

Traditionally, you could only appeal the sections of the plan relating to:

• Special educational needs (Sections B and F)
  A child’s special educational needs may include support they require for their communication and interaction; cognition and learning; social, emotional and mental health; and physical or sensory needs. The plan should set out these needs and the provisions required to meet these needs, such as specialist support or equipment.
   
• Placement (Section I)
  This should confirm the name and type of school or institution to be attended by your child. The type of school or institution may be a mainstream school, an independent school, or a residential setting.

If you are successful in your appeal, the SEND Tribunal can order a local authority to make amendments to these sections. This includes ordering the local authority to name a particular school or type of school.

As part of a government trial on changing the process for appealing EHCPs (the ‘National Trial’) you are currently also able to appeal:

• Health (Sections C and G)
  These sections set out any health needs which relate to a child’s special educational needs, and the provisions reasonably required to meet those needs. This may include medical treatments and specialist equipment such as a wheelchair.
   
• Social care (Sections D and H)
  These sections set out any social care needs which relate to a child’s special educational needs, and the provisions required to meet those needs. This may include assistance in the home, in obtaining recreational and educational facilities, or assistance in travelling to facilities.

You cannot bring an appeal to these sections alone – they must be appealed alongside any of Sections B, F, and I. Furthermore, even if you are successful in appealing these sections, the SEND Tribunal can only make recommendations on these sections.

The National Trial is due to end on 31 August 2021.

On what basis can I appeal sections of the EHCP?

In your appeal form, you will need to give reasons as to why you disagree with each of the sections of the plan. The legal tests are different for each section of the EHCP.

Requested amendments should ideally be supported by expert evidence, confirming that the support is required to meet your child’s special educational needs.

However, some amendments may be about how the EHCP has been written, and whether it includes the right information in each section. For example, the provision set out in Section F should be ‘detailed, specific and normally quantified’. Commonly, a plan may be written to simply state that a young person needs ‘speech and language support’. However, the support should be quantified with reference to type, hours, and frequency. 

For example: two hours of speech and language therapy each week during term time, delivered by a qualified speech and a language therapist.

What will happen leading up to the hearing?

Once your appeal is registered, the Tribunal will set a hearing date as well as deadlines for providing evidence and confirming attendance. The Tribunal may set other deadlines depending on the circumstances of the case. You can ask for changes to the timetable, including to allow you to submit late evidence, or move a hearing date, by submitting a ‘request for changes‘.

Ahead of the hearing, you and the local authority will work together to produce the working document. This is a version of the EHCP which sets out the sections agreed between the parties, the proposed amendments by the local authority, and your proposed amendments as a parent. This process narrows down the issues for the Tribunal to consider, and can even lead to an agreement of a final EHCP without the need for a hearing.

What will happen at the Tribunal hearing?

At the hearing, any outstanding issues will be addressed. Witnesses can be called, including independent experts and staff from the current or proposed school placement. SEND Tribunal hearings are not as formal as other court hearings, and will usually aim to take a collaborative approach between the parties.

Will I be successful in appealing my EHCP?

Appealing an EHCP is never a guarantee, and it will depend on the facts of each case. However, a large majority of parents and young people succeed in getting at least some changes to their plans. Government statistics show that the Tribunal found in favour of parents and young people on at least part of their appeal in 92% of cases between 2017-2020.

Appeals to the SEND Tribunal are becoming increasingly legally complex, with potentially significant outcomes for a child’s education. Our expert team of education lawyers are able to represent you through all stages of the process, from advising on the contents of an EHCP, through to representation at a final Tribunal hearing. Find out more about our services by visiting our Education Law page here

Amy O’Shea, Paralegal in our Education team, contributed to this article.