How to win a SEN tribunal

Posted by iChild, March 18, 2020 11:39 AM

By Hasna Haidar, freelance journalist covering topics in education, health and law

As the parent of a child with special educational needs (SEN), you may have already heard of the Special Needs and Disabilities Tribunal (SENDIST). For many parents, the Tribunal may be the only way they can get the right level of support that allows their child to achieve their potential at school.

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This point is explored in Bolt Burdon Kemp’s research on the SEN landscape in England. Literacy and inclusion expert Jules Daulby notes that many families have “lost trust in the education system’s ability to support their children without a legal document making it mandatory”. Her comments suggest that getting an accurate Education and Healthcare Needs assessment (EHC Needs Assessment) followed by a comprehensive Education and Healthcare Plan (EHC Plan) could be crucial to getting your child the right level of support through school.

If you feel you need to use SENDIST to get the right support for your child, here are a few tips to help you through the Tribunal process.

Starting the SENDIST process

In order to get your child the support they need, a request can be made to your local authority (LA) for an EHC Needs Assessment, with a view to securing an EHC Plan.

If the LA declines the request to carry out an EHC Needs Assessment, then you can appeal this decision. Or, if they do decide to issue an EHC Plan but the Plan fails to adequately address and detail appropriate provision for the child’s needs, then again, you can appeal this.

Any appeal must be made to SENDIST during the appeal window – within two months of receiving notification of the decision you want to appeal.

You’ll then need to go into mediation

There is a requirement to consider mediation for appeals relating to the educational sections of the Plan. Again, you’ll need to notify the LA of your wish to engage in mediation within the two month appeal window, clearly setting out what the issues are. The LA will then make a referral to a mediation service. If agreement is not reached at mediation, then a mediation certificate will be issued, and the case can proceed to appeal at SENDIST.

If your LA doesn’t wish to engage in mediation, they’ll need to contact the mediation adviser within two months of receiving notice from you that you’d like to appeal, confirming that they have considered the option of mediation, and that they do not want to do this. There is then an obligation on the mediation adviser to provide the certificate within three working days of being informed by the appellant that they do not want to pursue mediation. The case can then proceed to appeal at SENDIST. You have 30 days from the date of the mediation certificate to lodge the appeal.

Be aware of some common pitfalls

Parents frequently win SENDIST cases against their LA, supported by credible expert evidence. That said, it’s still worth familiarising yourself with some of the common problems you may come across as you prepare your case:

  1. Don’t assume the LA will be proactive

While we all want to believe the best in people, you may be disappointed if you give your LA the benefit of the doubt. LAs have finite funds and cuts to budgets have reduced the already stretched resources available to support children with SEN. They will be looking for reasons to avoid funding provision, rather than actively identifying children they can support.

  1. All available resources should be explored first

Failure to demonstrate that the school has drawn on its existing resources to support the child will simply result in the request for an EHC Needs Assessment being declined. If such a decision is appealed and there is no clear evidence of the fact that all resources available to the school within its existing budget have been exhausted, then any appeal is likely to be doomed to failure.

To this end, it is important to have a good relationship with the school Special Educational Needs Coordinator (SENCO) and to work collaboratively with them to ensure the school is prepared and able to produce evidence of the above, including observation records, incident reports, witness statements, letters of referral and reports from outside agencies whom the school has called on for assistance.

  1. You’ll need to get reports from experts

The LA will have access to their own experts on a child’s needs, but these experts will be subject to time constraints and they will be working for the LA, so their reports may not fully and accurately reflect the needs of the child.

It can be extremely helpful if you obtain your own evidence from experts instructed on a private basis to assess your child and report fully on your child’s SEN and the provision needed to meet them. It can also be helpful to get additional evidence from your child’s school (observations, reports, incident reports, details of resources used, etc.), as well as witness statements from anyone else in your child’s life who is able to provide a helpful account of their SEN, and diary and video evidence to demonstrate the level of support required to meet certain needs.

With the information above, hopefully you’ll be better prepared should you need to use SENDIST to give your child every inch of the support they deserve.

By Hasna Haidar, freelance journalist covering topics in education, health and law

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