If you have been involved in an EHCP appeal before the SEND Tribunal, then there is a good chance that you will have experienced the frustration of a local authority failing to comply with the Tribunal timetable and getting away with it.
The SEND Tribunal is a relatively flexible jurisdiction. In my experience, the overarching approach of the Tribunal is to allow late evidence, and lateness in relation to other steps, because they want to have as much relevant information before them as possible when they make their final decision. In many ways, this is understandable, but it can be a source of real anxiety and stress for the families involved.
However, in a recent case I was involved in (along with HCB Solicitors, who assisted the Appellant separately from me and throughout the appeal), the Tribunal did put its foot down in relation to local authority delay. This suggests that in the right circumstances, it is worth asking the Tribunal to intervene when a local authority has not complied with the Tribunal’s directions.
What happened in the case?
The case was an appeal in relation to Sections B (needs), F (provision) and I (placement). When the local authority issued the EHCP, they didn’t name a placement. Not only that, they didn’t even name a type of placement. This was clearly unlawful. Unless the EHCP sets out a package of Education Otherwise Than at School (EOTAS), Section I must name either a specific placement or a type of placement: see regulation 12 of the SEND Regulations 2014.
An appeal was lodged. The Tribunal made fairly standard directions, including that the local authority had to set out its response to the appeal by a specific date in April. The hearing was listed for May. When the local authority’s response came in, they said they were still unable to name a school, or even a type of school, and would do so in due course.
The deadline for the local authority to send its evidence, including full evidence in relation to the placements the Tribunal should consider, came and went. The local authority provided some documentation but this was very limited and certainly not the full suite of documents required. At this point, the final hearing was around two weeks away. The family in question had no clear idea what the local authority’s case would be on placement.
What action we took after the LA missed the deadline
A Request for Change to the Tribunal (Form SEND7), was sent in, asking for the SEND Tribunal to consider it urgently, given that the final hearing was imminent, and the local authority had failed to comply with directions.
The Appellant asked the Tribunal to make an order that unless the local authority confirmed its proposed placement and filed all necessary supporting evidence concerning the placement by midday one week before the hearing date, they should be barred from making submissions on placement in the appeal.
In asking for this order, the Appellant:
- Emphasised the local authority’s failures to date: their failure to name a placement or even a type of placement when they issued the plan, and their failure to comply with Tribunal directions.
- Noted that the local authority had offered no adequate explanation for the lengthy delay in specifying its position on a placement.
- Argued that it was unfair and prejudicial to the appellant if they only received information and evidence about the local authority’s proposed placement just before the hearing. In particular, the child’s mother, in this case, had three children with special educational needs and could not be expected to consider submissions and evidence from the local authority at the last minute.
- Because the Appellant did not want to lose the hearing date, we emphasised that this was a phase transfer, with the child moving to secondary school in September 2023, so it was imperative the hearing went ahead as scheduled.
What did the SEND Tribunal do?
The SEND Tribunal made an order setting a deadline for the local authority to set out its position and provide full evidence one week before the hearing. If they failed to do so, they would be barred from taking part in the proceedings.
This woke the local authority up! On the day they were required to set out their position and provide evidence, they wrote to the Tribunal and said they were still waiting for information from a school they were considering. They asked for the hearing to be adjourned for four weeks. This application fell to be considered at the beginning of the hearing in May. HCB Solicitors continued to provide the Appellant support leading up to the appeal hearing.
In the event, the Tribunal didn’t stick to its guns in barring the local authority from the hearing, and they let them put in some late evidence – as I said above, this is pretty common. In that evidence, the local authority said they thought they would be able to clarify their position on the placement soon – they were still waiting for more information.
The Tribunal refused to adjourn the hearing. The Judge held that the local authority had failed to comply with the Tribunal’s directions, and they should not have any further extension. The Tribunal was also concerned delay would prejudice the child at the centre of the appeal.
So, the full hearing went ahead. As to Section I, the local authority had no clear alternative proposal to the school of parental preference and limited evidence. The school of parental preference was named in the EHCP.
What are the implications of this ruling?
This was a great outcome for the child and family in question. And what it does show, is that in the right circumstances, the Tribunal will not continue to indulge a local authority’s delay.
But a word of caution: this does not mean it’s a good idea to file a Request for Change asking the Tribunal for something every time an LA misses a deadline. While missed deadlines are hugely frustrating, it isn’t always the case that an appellant is seriously prejudiced by this in preparing their case. And an application could backfire and result in a final hearing being put back. Nevertheless, in the right case, it’s definitely worth a go.
Also read:
- Check out our SEND system Flow charts
- Uncovering the origin of the evil EHCP ‘Golden Ticket’ Narrative
- SNJ in Conversation with Labour’s SEND spokesperson Helen Hayes MP: What are their thoughts on fixing SEND?
- 63% of teachers say their school’s insufficient support for children with SEND is a barrier to pupil learning
- EHCPs in England in 2023. More plans but only half on time—and more efforts to take them away. Plus our annual LA Hall of Shame
- Webinar Recording: “We’re not even testing mandatory mediation” SEND Minister, Claire Coutinho answers your questions
- Posts about Post16 education and training
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Alice regularly represents families in the First-tier Tribunal in appeals of EHCPs and disability discrimination claims. She recently appeared before the Upper Tribunal in the first case concerning the First-tier Tribunal’s approach to social care recommendations.
Alice has represented clients in a range of public law challenges and worked on strategic challenges concerning the rights of disabled individuals and carers. She has also represented individuals in challenges to social care packages, failures to deliver educational provision, and the use of sensitive personal data in social care documentation.
She also holds a Doctor of Philosophy in Law and was a lecturer at the University of Oxford. Alice has published articles in a number of national publications and contributes regularly to webinars,She maintains an active professional Twitter account: @AliceLIrving.
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