Tribunal Workshop

1. Tribunal Workshop First Tier Tribunal Health, Education and Social Care Chamber (HESC)

2. Aim of Today • To give you a quick run through of the tribunal process • What you can appeal • Explain how to lodge an appeal • Help you to understand the paperwork you will receive • Help you to gather your reasons and the evidence needed • How to go through your paperwork • Where to go for further support

3. Why go to Tribunal? • If you disagree with your local authority’s (LA) statutory decision about your child’s special educational needs and you want to appeal to the First-tier Tribunal (Special Educational Needs and Disability) • The tribunal is independent of government and will listen to both sides of the argument and the decision will be based on law. BUT • This is not an easy process and should not be taken lightly, it can be hard work and emotional. Before you appeal see if you can discuss the problem with your EHCP Co-ordinator. • You can get help and advice from SENDIASS and IPSEA. • You may be able to get Legal aid www.gov.uk/check-legal-aid

4. Who can appeal? • Parents of a child between 0-16 • Young Person (YP) if you’re over school leaving age (16) and under 25 • If the young person lacks capacity to appeal (Mental Capacity Act 2005) a representative can appeal on their behalf

5. What you can appeal LA refuse to assess LA refuse to issue an EHCP after assessment Refusal to amend after an annual review Refusal to re-assess Contents of a EHCP: Sections; B: Educational needs, F: Educationalprovision, I: Placement (nursery, school, college etc) or if no placement named, the type of placement Cease to maintain a EHCP

6. SEND Language, what does it mean? • Appellant - • Respondent - • Lodged • Bundle - • Paper hearings – • Oral hearings - • Case directions - • Working document - • Case management • Order of Tribunal – • Grounds of appeal Parent/carer or young person LA (or school –DDA) Registered All the paperwork for the hearing Appeal will be on papers only (you do not attend) Where you attend in person What must be done when EHCP withagreed changes and outstanding points Managed by a judge prior to hearing The decision and what has to happen next Reasons for appeal

7. Receive a letter from LA giving you the right to appeal Consider mediation if you are appealing section B, F and I (within 2 months of letter from LA) If only appealing section I you do not have to consider Mediation Complete Appeal form SEND24 (parent) Complete form SEND24A If for or by a young person Copy your EHC Plan, appendices and any other evidence (copy your appeal form as well) & the letter from LA Include a contents page We recommend you enclose a chronology of events Send (recorded delivery) your appeal form to SEND tribunal, Darlington and your mediation certificate and copies of reports and evidence within 2 months of the LA letter or within one month of the date of the mediation certificate which ever is the later Or You can send your form and attachments electronically to: send@hmcts.gsi.gov.uk How to Lodge your Appeal

8. What the form must include • Name and address of applicant • If appeal is for a YP then they may want to add parent as a party on the form, as they will not have an automatic right to take part • Name and address of representative if they have one (not IPS volunteers – advocates not representative) • Address the documents may be sent or delivered to • Who’s decision you are appealing - Norfolk LA • The result applicant (parent/YP) is seeking • The grounds (reasons) on which the applicant relies (evidence) • Any further documents required e.g. EHCP, letter from LA, the evidence you are relying on (copies only)

9. Timetable Once you have lodged your appeal: • Tribunal will then register the appeal in 10 working days enclosing: • Date of hearing • Case Directions (timetable of what will happen when) • Right to request your appeal be activelycase managed • Attendance form • Request for ChangesForm • At the same time the tribunal send the LA a copy of the notice to appeal, date of hearing, case management process, attendance and request for changes forms.

10. Timetable continued: • The LA must respond within 6 weeks of appeal being registered (to parents/YP and tribunal) The response must include • Which parts of appeal the LA agree with • Which parts they are resisting • Any legal points that they are relying upon • Where the appeal concerns section I the LA should include costs of the placements • Norfolk’s response will come from solicitors –NPLaw • Final deadline for evidence - week8 • You should now be working on the Working Document if not already started • Parent/YP/LA must send in attendance form - week 9 • LA should issue bundle - week 9 • Hearing week 12 • Decision week 14 • Parties can request an extension of time

11. Consider What to appeal We are concentrating on Final EHCP appeals today. If you are appealing school placement then we advise that you also look at & appeal (if necessary) parts B (needs) & F (provision) because: The EHCP must be written by the LA based on your child, not on which school/college they will attend and it is important that you look at sections B & F, to ensure that all the information in the reports has been used appropriately as these sections will inform the type of placement needed in Section I. B & F =I

12. How your EHCP should be laid out • A Child, young person, parents and or carers views and aspirations • B Educational Needs • C Health Needs • D Social Care Needs • E Outcomes • F Educational provision • G Health provision • H1 Social Care provision, under the chronically sick and disabled Act • H2 Social Care provision, any other types reasonably required • I Placement • J Personal Budget • K advice and information

13. How a plan should read • Needs + Provision= Outcomes i.e. needs + provision should inform the outcomes of the child/yp • Everyneed identified in section B must have provision in section F to meet that need and support the identified outcome and • As you read a plan you should be able to see a link between the outcomes (the benefit or difference a provision will make (section E)) and Aspirations (what the child/ypwants to do(Section A) ) • Outcomes need to be SMART (Specific, Measurable, achievable, realistic and time bound). • The document needs to be Specific and quantified ‘EHC plans should be clear, concise, understandable & accessible to parents, children, young people, providers and practitioners. They should be written so they can be understood by professionals in any local authority.’CoP para. 9.61

14. How to Read Through a Plan Go through the reports (listed in section K – are all reports listed) and any reports you are relying upon? • identify all the special educational needs and • educational provision Then go through the EHC plan and make sure all the needs you have identified in reports are in Section B • Then do the same for the educational provision in Section F It is important that all SENs are identified here as if, not this will impact on section F (lack of provision) and possibly section I (school) It is worth going through sections G and H so that you can check to see if any provision is educational or training provision as it would the need to be in section F Then make sure all needs identified have a corresponding provision Please see separate leaflet for a fuller description of this process

15. What is a ‘need’ • ‘Needs’ are the difficulties that the child has – not their diagnosis – but how the diagnosis affects their education • e.g. Pupil X has ADHD (diagnosis), - pupil X finds it hard to stay focused in a noisy, busy classroom, and is easily distracted (special educational need) • Example of provision: Pupil X needs to have a separate desk with a screen to minimize the classroom distraction. He will have a high level of classroom support to prompt him to stay on task

16. Woolly Words/phrases Opportunities Regular Often May need Would benefit from It is recommended that… Individual programmes…may be helpful

17. Reasons for Appealing Your reasons must be based on evidence you have (or intend to have) • Remembering you can only appeal Educational Needs B, Educational Provision F and Placement I (but tribunal may look at other areas and make suggestions) • Read through your EHCP - Section B -is this detailed - does it describe yp or child? Are all the special educational needs identified in reports in section B? Is there a difference of opinion over diagnosis, or over emphasis or under emphasis on a learning difficulty? Having read through your EHCP as described- any missing or incorrect information should now be identified and will form the backbone of your reasons to appeal. • Your reasons do not need to specify every single amendment you want but it does need to explain why you want changes made and the more info you can include at this stage the better

18. Section F – does it specify (make clear) provision to meet all needs? Remove any ‘woolly words’. Does it state who is going to provide the provision, how long for, how often? (this must come from the reports or evidence that it is already in place and working) • Provision for a young person may need to specify life skills training and if the YP needs a five day package and describe type of course/ programme (YP) • Check to make sure that if there is any provision that trains the child or young person it is in section F not section G and H (health & social care - therapies)

19. Reasons for Appealing Cont. Section I - Placement You can ask the local authority to name: • A maintained school • A maintained nursery school • An academy • An institution within the further education sector • A non maintained special school • An institution approved by the Secretary of state under section 41 • Parents have a right to ask for mainstream education

20. Reasons for Appealing Cont. Section I -Placement The LA must name the school/institution (if it is in the list of schools that can be requested) unless; • The school isunsuitable for the age, ability, aptitude or special educational needs of the child /YP • The attendance of the child or YP would be incompatible with: • The provision of efficient education for other children • The provision of efficient use of resources The burden of proof is on the LA to establish which of these are applicable BUT you cannot rely on this and will need to provide evidence/reasons for your preference.

21. Reasons for Appealing Cont. Section I -Placement • If you have been turned down for a Complex Needs School, the reason is likely (but could be other reasons) to be that the school is full. This is not an argument in law so the LA is likely to apply – the inefficient education of others and/or resources But remember that it is about whether just your child/YP will have an impact, so great, that it will affect the education of others, the LA will have to prove this. Things to consider: would one more child in the class make the difference? Does the school actually lack floor space? Have they been oversubscribed before Etc. • You will need to provide information about the school see leaflet SEND14 (information on schools), to include Ofsted report, school brochure/prospectus, SEN policy and COSTS (including transport) • If the LA say it is inefficient use of resources –i.e. too expensive (particularly if you have requested Independent) then costs will have to be taken into account.

22. Evidence, Evidence, Evidence The whole appeal process is based on evidence. Written evidence and oral evidence. • Needs to be up to date, approximately within the last year • Needs to address the issues appealed • Needs to support the points parents/yp are making • Check, is it relevant? • Examples of evidence, might include: • Expert opinions from health professionals • Teachers reports • Parents views and experiences • Childs/YP views • Annual reviews • Private assessments • Written statements from those that are involved with the child/YP • Home- school diaries • Exclusion letters • IEP/SEN Support evidence • Youth worker • School placement form (from LA)

23. Sending in additional Evidence • Must send to LA as well as Tribunal • Index what you send • Send in a chronology • Only send in photocopies • Any amendments you are asking for - reference to the reports that the evidence is in • When the LA respond – you can make a response to their arguments – send this to LA and SEND tribunal

24. What the tribunal needs to know Thispartly depends on what you are appealing, some points: • What are the child’s/yp’s SEN i.e. what needs to be in section B • About the child’s or YP educational provision – Section F • About the school • Other types of provision • Why residential? • Travel to and from school • Cost • There must be written evidence to back up what you are saying • Any evidence that you send to the tribunal you must also send to the LA – this is very important

25. Witnesses • Tribunal normally limit the number of witnesses to 3 • Witnesses need to be able to help prove a point that you are relying on • You can ask a witness to be summoned by the tribunal • Summons is sent to parent/YP to deliver or send

26. Working Document • This is a Word version of the EHCP you are appealing. LA should provide you with this • Once all evidence has been submitted mark up your suggested amendments using a key and send it back to LA. • LA will then come back to you accepting what they agree. They may suggest other amendments • This can happen numerous times - agree as many amendments as possible before the hearing. • The tribunal will ask for the latest version of the working document before the hearing (date should be in case directions)

27. Bundle • The LA has to collect, index and issue the evidence of both parties electronically • Parent/YP can ask Tribunal for a hard copy (advisable) • Check bundle to make sure all the evidence is included • Parent/young person should provide copies of the bundle to their witnesses

28. What is a Hearing like? • The hearing will be as relaxed and as informal as possible • You may feel emotional • There is a clerk of the tribunal • Depending on the type of case the panel will be made up of a judge, and one or two specialist members • Take a photo of your child and introduce them • Phones cannot be used in the hearing • Cold water is provided (for drinking not to throw at anyone!) • Keep calm and don’t talk over people • The judge should make sure you are as able to contribute as much as the LA • Take a summary of the main points you want to ensure the tribunal hear with you

29. IPS at the Hearing • To support, a helper, sometimes know as a ‘McKenzie's friend’ • Not shown on the original paperwork (as not a representative) • Put on Attendance form as a helper, make this clear • Our ‘IPS at meetings’ booklet shows the IPS role, share this with tribunal

30. Children at the Hearing • Children’s views will be needed and will have been taken before the hearing • They will usually just speak to the tribunal members, less formal than the hearing • Children cannot stay in the tribunal hearing room and there is no childcare

31. Concede, withdraw or consent • LA can only concede an appeal before their response date. After this the only way the appeal can be concluded is: 1) Decision by tribunal 2) Parent/ yp withdraws the appeal with the tribunals consent • If the appeal is withdrawn after the response date then the LA will not be held to the time limits of completing the agreed actions so parents/yp should ask for a consent order from the tribunal rather than withdraw

32. If the tribunal order the local authority: • to start the assessment/EHC assessment or re-assessment process • to make and maintain an EHC Plan • to change an EHCP • to continue to maintain an EHCP • to change the name of the school named in your child’s EHCP with a school named by you • to cancel (no longer) maintain an EHC Plan The local authority must: • write to you within 2 weeks to say that it will make the assessment Send you a proposed within 5 weeks amend the EHCP within 5 weeks continue to maintain the EHCP with immediate effect specify the school specified by the parent within 2 weeks With immediate affect The Order of the Tribunal

33. Levels of Tribunal • First tier Tribunal where the case will be heard The First tier will decide if a parent can appeal a decision to the; • Upper Tribunal, • You can only appeal on: • points of law • If circumstances have changed

34. Norfolk SEND Partnership IASS 148 Woodside Road Norwich NR7 9QL 01603 704070 Email:sendpartnership.iass@norfolk.gov.uk www.norfolksendpartnership.iass@norfolk.gov.uk First-tier Tribunal (Special Educational Needs and Disability)1st Floor, Darlington Magistrates Court Parkgate DarlingtonDL1 1RU Telephone 01325 289 350 send@hmcts.gsi.gov.uk Forms and guidance: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForms.do?court_forms_category=Special%20Educational%20Needs%20and%20Disability%20Tribunal Useful Info

35. Useful Info Norfolk Local Authority Appeal Team Norfolk SENDist Room 16 144 Woodside Road Norwich NR7 9QL sendist@norfolk.gov.uk IPSEA www.ipsea.org.uk www.ipsea.org.uk/contact/advice-and-support/information-service Tribunal helpline:  01799 582 030 Legal Aid http://legal-aid-checker.justice.gov.uk/

36. Mediation Kids  Special Educational Needs and Disability (SEND) Mediation and Disagreement Resolution Service Contact details: Email: senmediation@kids.org.uk Web: www.kids.org.uk/mediation Tel: 03330062835