Understanding EHCP contents appeals

When we refer to a ‘contents appeal’, we mean an appeal to the Special Educational Needs and Disability (SEND) Tribunal about the contents of an Education, Health and Care (EHC) plan. 

You can appeal about the contents of an EHC plan when it has been issued after completion of an EHC needs assessment, if the local authority has amended it following a statutory review (annual or emergency) or if the local authority has decided not to amend it following a statutory review (annual or emergency). 

What sections of an EHC plan can be appealed? 

You can bring an appeal to the SEND Tribunal in relation to the following sections of an EHC plan:

Section B - this is the section where all of a child or young person’s special educational needs should be stated;

Section F - this is the section where all of the special educational provision required to meet a child’s or young person’s special educational needs should be included. The description of the special educational provision in this section should be specific and quantified; and/or

Section I – this is where a child’s or young person’s educational placement should be named, or if no placement has been named, what type of placement should be used. If it has been agreed that EOTAS/EOTIS is appropriate, then section I would be left blank. 

You can also appeal to the SEND Tribunal in relation to the health and social care sections (C, D, G and H), but the SEND Tribunal only has the power to make non-binding recommendations about these sections. 

You cannot appeal to the SEND Tribunal in relation to sections A, E, J and K. 

What should you consider when making an appeal to the SEND Tribunal?

When the local authority makes a decision about an EHC plan, the local authority must inform you of their decision and your right of appeal in a decision letter. The date of the decision letter is the date from which the timeline for submitting an appeal starts to run. Therefore, you should make a note of this date. You have 2 months from this date to bring an appeal or 1 month from the date of a mediation certificate, whichever is later (see below in respect of mediation).

If you do not agree with the contents of the EHC plan and you wish to appeal to the SEND Tribunal, you are required to consider mediation. You do not have to if you are only appealing Section I, but in all other contents appeals, you need to consider mediation first and obtain a mediation certificate from a mediation adviser after going through mediation or after discussing mediation with them and deciding not to proceed. Details of the mediation service should be set out in the local authority’s decision letter.

If you do not wish to mediate with the local authority, you will need to tell the mediation adviser. They must then send you a mediation certificate within three working days. If you have already had discussions with the local authority about their decision, you may feel that mediation is of little use, and you may prefer to get your certificate and appeal right away. If you have not had a proper discussion with the local authority about why it has reached its decision, mediation may be a helpful option. If you would like to mediate, you must tell the local authority and the mediation adviser so that mediation can be arranged. 

To lodge an appeal, it is important to consider the fact that you will need to prepare and submit appeal documentation, including the evidence you intend to rely on. If you do not have all the evidence, e.g., you are awaiting a private expert report, there will be an opportunity to submit further evidence during the appeal. 

If you are appealing Section I only, you should also consider appealing Sections B and F. We recommend speaking to a solicitor specialising in SEND law about this.

Contents appeals can be complex, and expert advice and assistance are recommended before submitting an appeal and throughout the appeals process. 

What are the appeal timings? 

As above, you must send your appeal to the SEND Tribunal within two months from the date of the local authority’s decision letter or one month from the date of your mediation certificate, whichever is later. If you appeal only Section I, then you will only have two months from the date of the decision letter to bring your appeal.

If you are considering mediation, it is important to note that you will need to contact a mediation adviser within two months of the date of the local authority’s decision letter.

What evidence should you submit with your appeal?

If you are requesting changes to the content of an EHC plan, you should provide evidence to the SEND Tribunal to support the changes you are requesting. 

Key evidence will usually be found in expert reports. If the EHC plan has been issued following an EHC needs assessment, the expert reports obtained as part of that assessment will potentially be key. If you privately instructed any expert(s) but the local authority did not take their report(s) into account, the report(s) can be used as evidence in your appeal. 

If we are instructed to assist you with your appeal, we will provide advice on what evidence we consider to be beneficial for your appeal.