Preparing a SEND Tribunal case: local authorities
What local authorities need to do to prepare their case in special educational needs appeals. Replaces SEND2 and SEND27 guidance.
Replaces the withdrawn SEND2 and SEND27 guidance.
What local authorities must tell the SEND Tribunal
When someone appeals to the SEND Tribunal about a local authority decision, the local authority must tell the tribunal whether it opposes the appeal. This is called the local authority’s ‘response’.
The local authority must send its response to the tribunal within 6 weeks.
An ‘authorised officer’ from the authority must sign the response.
When preparing their response, local authorities should consider the advice in the SEND code of practice. They should explain if and why they’ve departed from the advice.
If the local authority opposes the appeal
If the local authority opposes the appeal, its response must say:
- why it opposes the appeal
- the name and profession of its representative
- its address for sending documents to
- a summary of the facts about the local authority’s decision
- why the decision was made (if this is not in the decision itself)
- the child’s views (or the reason why the local authority has not got them)
Opposing education in a mainstream school
If parents want their child to be taught in a mainstream school, the local authority can only oppose this if it thinks:
- the placement is unsuitable for the child
- it would affect the education of others
- it would be an inefficient use of resources
What to include in the response
The local authority should give the tribunal up-to-date and detailed information about the child. This could include:
- current educational attainments and end of Key Stage results
- behaviour at school and at home
- latest assessments by people from school or external agencies
- details of current educational or non-educational provision
- travel arrangements to and from school
The local authority can also give the tribunal information about the child’s history or progress over time, such as:
- dates and results of assessments or school reports
- details of any individual education plans
- when the child started school or changed schools
- how long particular types of provision lasted
The local authority should also tell the tribunal:
- which arrangements for the child are successful and which are less effective
- if the child is not receiving all the provision
- about any local policies that are relevant to the case, why the authority adopted them and how they reflect national policy and guidance
- details of changes to the child’s statement or education, health and care (EHC) plan that have been agreed with the parents
- a comparison of placement costs
- details of any therapy proposed, including who will give it, how they will give it, and the cost
- who will monitor the child’s progress and how often
- about the proposed school placement: prospectus, Ofsted report and details of the class and peer group proposed
Witnesses
The local authority should tell the tribunal who it wants to bring to the tribunal as witnesses.
The tribunal will give the local authority a form to fill in with the witnesses’ details.
Witnesses should include:
- at least one person who knows the child well
- someone who knows the school that is being proposed
Read more about being a witness at the SEND tribunal.
Statement of the child’s views
The local authority must either:
- include a statement of the child’s own views
- explain why this is not possible, for example if the child is too young
The local authority can include the statement in its response or in a separate document.
Some local authorities use independent people to get the child’s views.
A local authority should tell the tribunal at the hearing if it thinks the child’s presence at the hearing is likely to affect the presentation of any part of its case.
If the appeal is about a school
Where the appeal is about the school named in an EHC plan or SEN statement, the tribunal will send the local authority separate guidance about the information it needs.
The local authority should tell the tribunal:
- which school it proposes for the child
- the type of school
- how many pupils the school has now
- how many pupils it can take
- how many children at the school have SEND
- how many children get support at the school for SEND
- class sizes
- teachers’ relevant qualifications and experience of SEND
- whether the school teaches the full National Curriculum
The local authority should also tell the tribunal about how the school would meet the needs of the child, for example:
- what support it proposes
- the size of class and teaching groups that the child would join
- how many adults will look after the child
- what curriculum and educational programmes the school will deliver
- what arrangements are in place for the parent and school to cooperate
The local authority should also tell the tribunal about how much the provision would cost.
A parent may want their child to be taught at:
- an academy
- a city technology college
- a school maintained by another authority
In these cases, the local authority should represent the views of the academy, school or college and other authority in its response.
Asking to ‘strike out’ an appeal
If a local authority believes an appeal should not continue, it can ask the tribunal to ‘strike out’ the appeal. The local authority can apply at any time.
The grounds for asking for an appeal to be struck out are in rule 8 of the Health, Education and Social Care Chamber procedure rules.
Most requests are on the grounds that:
- parents are asking for an order that the tribunal is not empowered to make
- the tribunal is being asked to reconsider an earlier decision where the circumstances are unchanged
To apply to strike out an appeal, use Form SEND7: Request for change.
The tribunal will send the parents a copy of the form so they can comment on it. The parents can ask to make their comments verbally. The tribunal will then allow both sides to explain their reasons for or against striking out the case at a hearing.
If the local authority does not oppose the appeal
The tribunal will decide the appeal:
- based on the notice that the parents sent to the tribunal
- at a hearing where the local authority is not present
The tribunal will also decide the appeal this way if the local authority is barred from taking part in the proceedings. This can happen if the local authority does not send the response to the tribunal in time.
In some cases, the appeal may automatically be decided in favour of the parents. In those cases, the tribunal would not make an order.
If the appeal is about the contents of a child’s statement or EHC plan and the local authority does not oppose it, or decides later to withdraw its opposition, the local authority should write to the tribunal with any changes it has agreed to make to the statement or EHC plan.
Preparing the local authority’s case: the ‘tribunal bundle’
Local authorities in every EHC appeal must prepare a ‘tribunal bundle’. The bundle includes all documents that are evidence in the appeal.
All the evidence in the bundle must have already been sent to the other party and the tribunal.
The local authority cannot choose which evidence from the other party to include in the bundle or leave out.
The tribunal bundle: deadlines
The tribunal will tell the local authority what the deadline is for sending its bundle to the tribunal.
If the local authority thinks it will need to send in evidence after this, it should contact the tribunal for advice. The local authority must bring 5 paper copies of any late evidence to the hearing that was not in the bundle.
The tribunal must get the bundle no later than midday on the date given in the case directions. This date will also appear under ‘key dates’ in the initial registration letter.
If the local authority misses the deadline for delivering the bundle, it may be barred and will not be able to take any further part in the proceedings.
Putting the tribunal bundle together
The bundle must contain:
- photocopies not originals
- one copy only of each document
- annotated or amended documents as well as the unchanged versions
- documents that are complete and legible, unless the state of the original prevents this
Every page in the bundle should be numbered at the top, including any blank pages.
The bundle should have an index page at the front. For each document in the bundle, the index should list the:
- page number
- title of the document
- author of the document
- date it was written
If the pages of the bundle are not numbered or indexed properly, the tribunal will return the bundle to the local authority. The local authority will not be able to take any further part in the proceedings.
The bundle should have a neutral design, with no logos.
The documents should be grouped into the sections listed below. Each section should include documents in date order.
Appeal documents
Include:
- the notice of appeal form
- the local authority response
- the local authority decision letter
- requests for changes and tribunal directions
- attendance forms and submissions
EHC plan
This should include all appendices listed in section K of the plan (if applicable).
Parents’ evidence
Includes:
- letters
- emails
- written submissions
- statements from witnesses
- reports or opinions
- examples of the child’s work
- school or college prospectus
- school SEN information report
- OFSTED report and details of cost of educational placement (if applicable)
Local authority’s evidence
Includes:
- letters
- emails
- policies
- written records
- information from the school file
- other witness statements (if produced)
- school or college prospectus
- school SEN information report
- OFSTED report and details of cost of educational placement (if applicable)
Working document
The local authority should email the final agreed working document to the tribunal at least 10 working days before the hearing.
If the wording changes after that deadline, the local authority must:
- email the new version to the tribunal and the other party
- bring 5 paper copies of it to the hearing, so it can be added to the parties’ and tribunal’s bundles
Read more about how local authorities should prepare the ‘working document’ before a SEND Tribunal case.
Post-hearing documents
If the appeal is adjourned for a rehearing following an Upper Tribunal appeal, any post-hearing documents must be included in this section.
Missing or disputed evidence
If the parents or tribunal point out any missing or disputed evidence not in the bundle, the local authority may need to supply an extra bundle.
This bundle should be indexed and each page should be numbered, including any blank pages.
Sending the bundle
The local authority can email the bundle to [email protected].
The limit for attachments is 14MB. If the bundle is larger than this, split the bundle into separate emails.
The tribunal will then print out copies and send them to the panel and the parents.
Or, the local authority can produce the bundle in hard copy. It should keep one copy for its own use and send copies to:
- the tribunal
- the parent or young person (or the parent or young person’s representative)
Hard copies must be:
- printed double sided
- fixed together using ‘treasury tags’ only
Appealing to the Upper Tribunal
If one side is given permission to appeal to the Upper Tribunal, then that party must produce a full copy of the hearing bundle.
This should include any late evidence and additional documents admitted at the hearing.
The local authority must keep a master copy of this bundle for 6 months.
If the hearing is adjourned
The local authority should supply an ‘adjournment bundle’. It should do this at least 15 working days before the re-convened hearing (or as directed in the adjournment order).
The adjournment bundle contains:
- any late evidence admitted at the first hearing
- any additional evidence that the tribunal has said it will consider
Legislation and rules
Read detailed rules on what local authorities must tell the tribunal in:
Find out more about the SEND Tribunal
More about the First-tier Tribunal (Special Educational Needs and Disability)