What if you don't agree with the Council on an Education, Health and Care (EHC) Plan
Should the LA decide not to initiate an EHCA, not to issue an EHC Plan, or you are dissatisfied with the content of an ENC Plan, the LA will give you the right to appeal the decision.
You will need to consider mediation before you register an appeal with a First tier tribunal (also known as Special Educational needs Tribunal). You must contact a mediation adviser within two months of the LA decision you wish to appeal.
If you want to appeal only about the school or other institution named in the EHC plan you do not have to contact a mediation adviser.
You can go to mediation about the health and social care elements of an EHC plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.
If the parent wishes to mediate about education or social care, the LA must arrange the mediation through the mediation provider (even if the parent also wants to mediate about health). The health commissioning body or bodies must take part in the mediation arranged by the LA if the mediation is about the health element of the plan as well as either the education or social care parts of the plan.
You will be provided with information for a mediation service called Global Mediation and this is the pathway to formal mediation and a requirement to obtain a mediation certificate which would form part of your appeal.
Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate. This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal. An appeal to the Tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is the later.
If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and/or social care aspects of the EHC plan. However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal. It does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.
Should you have any concerns about the LA’s decision, we would recommend that you talk to a member of the SEND Services, or Sutton’s Information, Advice and Support Service (SIASS) which is independent of the council and provides impartial advice. Both teams can work with you to address any concerns that you may have, and to reach a satisfactory resolution for all parties.
SEND Services -
Phone: 020 8323 0453 / 020 8323 0454
Phone: 020 8323 0462
Single Route of Redress - SEND Tribunal Extended Powers
The outcome of the National Trial:
The National Trial commenced from April 2018 to August 2021 testing the extended powers for the SEND Tribunal. The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the Tribunal’s extended powers. Download the evaluation of the National Trial here (PDF 1544KB).
Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans..
The continuation of the extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and/or social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHC plan in one place.
It is only possible for the Tribunal to consider the health and/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.
Meaning for parents and young people:
If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal. You are also able to request recommendations about the health and social care content of the plan at the same time, provided there is also an education element. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.
This does not prevent you from complaining about other aspects of your disagreement through other complaint procedures. You should seek advice about the different routes available, including from your local Information Advice and Support Service (SIASS). Find out more about SIASS (external link).
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed.
Further information on the roles of these bodies can be found on their websites.
Requesting recommendations about the health and social care elements of an EHC plan:
You can request the Tribunal makes recommendations on the health and/or social care aspects of EHC plans as part of an appeal relating to:
the description of the child/young person’s special educational needs in an EHC plan
the special educational provision specified in an EHC plan
the school or other educational institution named in an EHC plan
a decision by the local authority not to issue an EHC plan
a decision by the local authority not to carry out a re-assessment for a child/young person who has an EHC plan
a decision by the local authority not to amend an EHC plan following a review or re-assessment
a decision by the local authority to cease to maintain an EHC plan
The SEND Tribunal extended powers places responsibility on local authority SEND teams to:
Inform parents and young people of their new rights through decision letters and the local offer
Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary
It also places responsibility on health and social care commissioners to:
Respond to any request for information and evidence within the timeframe set by the Tribunal
Send a witness to attend the hearing as required
Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.
Requesting a health or social care recommendation:
If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal.
Help and further information
Follow the link to GOV.UK (external link) – This includes advice on making SEND appeals to the Tribunal and links to the appeal form.
Key information and resources will be shared as the trial progresses, including a frequently asked questions and answers sheet.