Education & SEN — Key Areas
Frequently Asked Questions
The local authority has refused to carry out an EHC needs assessment — how do I appeal?
Where the LA refuses to carry out an EHC needs assessment, the family must: (1) attempt mediation (contact a mediation adviser within 2 months of the decision — the mediation adviser issues a mediation certificate); and (2) register an appeal at SENDIST within 2 months of the LA's decision (or 1 month of the mediation certificate, whichever is later). The SENDIST appeal bundle should include: all education records; evidence of the child's SEN (school reports, EP assessments, medical evidence); the request for assessment and supporting reports; and the LA's refusal letter and reasoning. SENDIST will substitute its own decision if it considers the assessment necessary. A solicitor manages the mediation process and prepares the SENDIST appeal bundle.
The EHCP names a school we don't want — how do we appeal for a different school?
The naming of the school in Section I of the EHCP is a ground of SENDIST appeal. The appeal must be registered within 2 months of the final EHCP (after mediation). A parent can request any school (maintained mainstream or special) — and the LA must name it unless: it would be unsuitable for the child's age, ability, aptitude, or SEN; or it would be incompatible with the efficient education of others or the efficient use of resources. The "incompatibility" ground requires the LA to show that the additional cost of placing the child at the preferred school (compared to the named school) would be an unreasonable public expenditure. A solicitor prepares the evidence of the preferred school's suitability (visit notes, headteacher's letter, evidence of provision) and manages the SENDIST appeal.
My child has been permanently excluded — what is the appeals process?
The exclusion appeal process has two stages: (1) Governing body exclusion review panel — within 15 school days of the exclusion. If the governing body upholds the exclusion: (2) Independent Review Panel (IRP) — within 15 school days of the governing body's decision. The IRP can uphold, recommend reinstatement (non-binding on the governing body), or quash and direct the governing body to reconsider (where the decision was procedurally flawed or unreasonable). If the pupil has SEN, a SEN expert must be present at the IRP. A solicitor challenges the exclusion before the governing body and — where the governing body upholds it — prepares the IRP application, identifying failures to follow DfE guidance, failures to consider the pupil's SEN, and disproportionality.
What is mediation and is it compulsory before appealing to SENDIST?
Before registering most SENDIST appeals, families must contact a mediation adviser and consider mediation (CFA 2014 s.55). The contact with a mediation adviser is compulsory — the appeal cannot be registered without the mediation certificate (even if the family decides not to attend mediation). Mediation itself is not compulsory — the family can decide not to mediate and proceed directly to the tribunal. However, mediation can be a useful way to resolve issues informally and more quickly than waiting for a tribunal hearing. Where the only appeal ground is Section I (the school named) and not Section B or F, mediation is not required before appealing. A solicitor advises on whether mediation is worthwhile in the specific circumstances and manages the mediation process.
Can the school refuse to make adjustments for my child's disability?
No — schools have a duty under the Equality Act 2010 (Part 6, Sch 13) to make reasonable adjustments to avoid putting disabled pupils at a substantial disadvantage compared to non-disabled pupils. "Reasonable adjustments" includes both physical adjustments and changes to policies and practices. Whether an adjustment is "reasonable" depends on the circumstances — including cost, disruption, and the benefit to the disabled pupil. Common examples of unreasonable refusals: not providing a teaching assistant for a child with autism or ADHD where the EHCP requires one; refusing to allow a pupil to use a laptop for assessments; refusing to provide a quiet room for exams; or excluding a pupil for behaviour that is a manifestation of their disability. SENDIST hears disability discrimination claims against schools — with the power to order reasonable adjustments and compensation.