The First-Tier Tribunal (Special Educational Needs and Disability), often referred to as the SEND Tribunal, is a specialist independent national tribunal. It was created to handle appeals (by parents) against local authority decisions regarding special educational needs, and appeals against schools or local authorities in relation to alleged discrimination based on a child or young person’s disabilities.
The SEND Tribunal now reports that it receives around 10,000 appeals per year. In 2019, the Charity Ambitious About Autism suggested that their analysis of Ministry of Justice data suggests that 95% of cases were lost, withdrawn or conceded by local authorities.
We note with interest, though, that their analysis does not appear to differentiate between appeals against LAs in relation to EHCPs and discrimination appeals (which may involve schools).
As in other courts and tribunals, disability discrimination claims are brought on the basis of the Equality Act 2010. It is helpful, therefore, for a school to have expert legal advice from education and/or discrimination law specialists.
When can parents appeal?
Parents may file an appeal if they feel their child has been unfairly suspended or excluded in connection with their child’s condition; they could allege their child is being harassed or victimised; they may claim they have disadvantaged access to equipment or been denied access to benefits, or a failure to make reasonable adjustments.
School staff, particularly headteachers, may be involved in SEND hearings in various capacities: they may be a witness for the school in a disability discrimination appeal, or they may have been asked to attend to support a parent’s appeal or a local authority’s defence in relation to EHCP provision.
How are appeals conducted?
Appeals are heard by independent panels consisting of a judge and one or two specialist members who have relevant education and SEND expertise.
In our experience, how the hearing is conducted can vary from case to case. The SEND Tribunal is inquisitorial in nature, rather than adversarial (as in the Employment Tribunal, for example, which otherwise appears similar in set up) and is usually held in private.
Parties are not usually able to ask questions of or cross-examine the other side’s witnesses, and usually the two groups are set up in separate rooms throughout the day, then convening in front of the panel when called.
When giving its decision, the Tribunal may make any order it sees fit. In relation to disability appeals, for example, it may order that reasonable adjustments should be made or make an order to prevent that pupil from being treated differently because of a disability.
However, the SEND Tribunal does not have the power to order financial compensation, although this has been challenged in the past by unsuccessful Judicial Review.
Contact our SEND Tribunal team
If you or your school find yourself facing an appeal to the SEND Tribunal, or have been asked to support a parent’s claim, it would be a sensible approach to seek specialist legal advice and representation.
To speak to our solicitors please complete the form below and tell us a little more about your case.
Key Contact
Michael Redston
Employment Law Associate Solicitor
Michael is an Associate Solicitor for the Employment team and provides advice on both contentious and non-contentious matters.
