Part 3: Appealing against the Special Educational Needs and Disability Tribunal

In this final article in our series about the Special Educational Needs and Disability Tribunal we explain what can be done if you are unhappy about a decision taken by the Special Educational Needs and Disability Tribunal (SEND or SENDIST).

As explained in our previous articles, the Special Educational Needs and Disability Tribunal is part of the First Tier Tribunal.

The Upper Tribunal (Administrative Appeals Chamber) can hear challenges against a decision made by the Special Educational Needs and Disability Tribunal.

Challenging the Special Educational Needs and Disability Tribunal

There are three possible form of challenging the decision of the Special Educational Needs and Disability Tribunal. These are:

• Review
• Appeal
• Set aside the decision

Before appealing to the Upper Tribunal you must ask for permission from the Special Educational Needs and Disability Tribunal. Permission to make an appeal can be given for any of the following reasons:

• Applying the wrong law, or wrongly interpreting the law
• Not following the correct procedures
• Having no evidence or not enough evidence to support a decision
• Inadequate reasons are given for a decision

Time limits on appealing a decision

The time limit for asking the Special Educational Needs and Disability Tribunal for permission to appeal to the Upper Tribunal is 28 days from the date of the judgement.

If a Tribunal judge refuses to give you permission to appeal, you can apply direct to Upper Tribunal for permission. You must do so within one month of the decision of the Tribunal judge refusing you permission to appeal.

If you are given permission to appeal by a Tribunal judge you must send in an appeal to the Upper Tribunal within one month.

Review

When the Special Educational Needs and Disability Tribunal receives an application for permission to appeal to the Upper Tribunal, the decision will first be reviewed by the judge who made the original decision. If the Tribunal judge decides at that stage that there was an error of law in relation to all or part of the decision, they may grant an immediate review. Usually both parties will be asked to make further comments to the Tribunal and a further hearing may be required.

The parties must be notified in writing of the outcome of any review and any right of appeal which arises as a result.

Review due to change of circumstances

You are also able to independently ask the Tribunal to review their decision if circumstances have changed.

This is quite a difficult request to successfully argue because the decision needs to be one which would materially be affected by a change of circumstances. For example, a decision taken by the Tribunal about a school placement may be changed if the child or young person, soon after the hearing, develops significant additional needs, such a blindness, which the school would not be able to cater for.

An application for a review must be made within 28 days of the original decision being made.

Decision to set aside

The Tribunal has the power to set aside a decision and to re-make the decision if:

• The Tribunal considers that it is in the interests of justice to do so; and
• One or more of the following conditions below are satisfied:
  • A document relating to the proceedings was not sent to, or was not received at an appropriate time
  • A document relating to the proceedings was not sent to the Tribunal at an appropriate time
  • A party, or a party’s representative, was not present at a hearing related to the proceedings
  • There has been some other procedural irregularity in the proceedings.

An application to set aside must be made in writing within 28 days of the date of the decision being challenged.

Challenging the decision of the Tribunal can be complicated and may result in you having to pay the costs of the local authority if your application is unsuccessful. Before you start any proceedings you should speak with a specialist solicitor.