Best Practice

The SEND Tribunal: Preparing for a hearing

Legal advice SENCOs EHCPs
The SEND Tribunal specialises in hearing SEN appeals and disability discrimination claims concerning children in schools. What does it have the power to do? How can headteachers prepare for an appeal or claim? Nabil Dance answers these key questions


From my observations, headteachers encounter an incredibly broad range of organisations, professionals, and individuals. I sympathise with them because this communication and participation can add to an already tough workload simply because of the multiple topics and systems involved.

This is the first of two articles introducing one particular system with its own laws that can have a profound impact on a child's future: the Special Educational Needs and Disability (SEND) Tribunal. I will refer to it as the Tribunal throughout these articles. This article focuses on preparing for a hearing and the second article – now published here – focuses on attending the hearing itself

Data published by the SEN Statistics Team – part of the Department for Education – provides numerous useful facts (DfE, 2022):

  • Just under 1.5 million pupils in England have SEN. An increase of 77,000 from 2021. Both the number of pupils with an Education, Health and Care Plan and the number of pupils with SEN support have increased.
  • The percentage of pupils with an EHCP has increased to 4%. The percentage of pupils with SEN but no EHCP (SEN support) has increased to 12.6%. Both continue a trend since 2016.
  • Pupils with an EHCP made up almost one quarter (24%) of all pupils with SEN in January 2022.

This upward trend highlights and reinforces the need to gain a grasp of what the Tribunal is, and how you can contribute to an SEN appeal or disability discrimination claim. The number of appeals and claims being lodged is bound to increase, so I would encourage you to enhance your practical knowledge, particularly if your experience with the Tribunal process is limited.


About the Tribunal

Its formal title is the First-tier Tribunal (Special Educational Needs and Disability.) It falls under HM Courts and Tribunals Service, which is an executive agency of the Ministry of Justice. It is completely independent of the Department for Education and your local authority.

It would be natural to assume that the Tribunal simply comprises a panel of lawyers, acting in their capacity as judges with little to no knowledge of educating children. This is not the case. Each panel consists of three judges: one from a legal background, such as a solicitor, and two specialist members.

Specialist members tend to be highly experienced, qualified, and reputable teachers, SENCOs, therapists, educational psychologists, governors, or other appropriate professional, with experience from a wide range of educational settings.

You can learn more about the Tribunal through its website. You may hear it referred to by other heads and professionals as SENDIST or SENDIT, which are acronyms of the Tribunal's past titles. This is the same Tribunal, so do not get confused as there is only one Tribunal that specialises in these topics.

The panel may have a clerk who provides them with generic and administrative support and can answer basic questions from the parties.

Each panel must be impartial in hearing each individual appeal, or claim. It follows the same rules that you would expect a court to do so, such as maintaining integrity.


The Tribunal's legal powers

The Tribunal can hear the following SEN appeals against the refusal to:

  • Assess a child or young person’s educational, health and care needs.
  • Reassess their educational, health and care needs.
  • Issue an EHCP.
  • Amend what's in the EHCP.
  • Maintain the EHCP.

It also hears appeals against decisions to refuse young people in custody an educational, health and care assessment, EHCP, and a placement to a suitable school, or other educational institution after their release.

Finally, the Tribunal also considers claims of disability discrimination by schools or local authorities made by, or on behalf of, disabled children.

The above-mentioned powers are the extent of the Tribunal's remit. It cannot consider, for instance, a school transport complaint against the local authority.


Tips for the pre-hearing stages

In my experience, a school will almost always send the head, or deputy head, to the Tribunal hearing.

If you wish to support the parents, as opposed to the local authority, it is understandable if you would be concerned about how this may affect your career if you are employed by a local authority. I have encountered this dilemma with many heads over the years and I would suggest seeking specialist legal advice as to how to tackle this.

Only the recognised parties can call witnesses to the hearing. Depending on the circumstances, they will be the parents, relevant school, and the relevant local authority. If you wish to bring a colleague to the hearing but your school is not the party, you can simply ask the party to apply for permission to bring that additional witness. Do not overwhelm the party with multiple witnesses and ensure that whoever you wish to bring to the hearing can make a substantial contribution.

Whoever represents your school must have an intimate understanding of the school itself. If the child relevant to the appeal, or claim, attends your school, that professional would be expected to have an in-depth understanding of the child's educational background.

If a family has called you as a witness, encourage them to seek guidance, whether it is from a legal advisor, or a specialist charity like the Independent Provider of Special Education Advice (IPSEA.) This will maximise the chances of success for the parents, and almost certainly make your job easier, and allow your role to be more effective.

Whether you have been called as a witness by the family or local authority, I would recommend sharing all available data concerning the relevant pupil. If the child attends your school, consider sharing the entire pupil file. It is very important that you and the appropriate party review the same technical data, otherwise this can lead to communication difficulties further down the line, and unequal levels of knowledge. The consequences of this can be mere inconvenience, or disaster.


The Tribunal's process

I won't describe each technical stage of an appeal or claim in detail, as they can be modified by the parties or Tribunal. The following is a summary in layman's terms of a typical experience.

  • The respondent party issues its decision notice, such as the refusal to carry out an educational, health and care assessment.
  • The appeal or claim is lodged.
  • The Tribunal sets a timetable of key events, including proposed deadlines for the stages laid out immediately below.
  • The respondent party formally replies to the appeal, or claim.
  • Both parties confirm witnesses.
  • Any other practical matters are handled, such as producing a working document for an EHCP.
  • Any final supporting written evidence must be submitted, such as expert reports.
  • The formal Tribunal hearing takes place.
  • The Tribunal makes a decision with any appropriate orders.
  • If the appeal or claim is successful, the respondent party must follow the Tribunal's formal orders.
  • If the Tribunal's decision remains unchallenged, the matter draws to a conclusion.


Further information

In 2017, the Tribunal uploaded a playlist to YouTube with six informational videos that explain what appealing to the Tribunal is like (see further information). These videos contain the opinions of parents, local authority representatives, and judges about the process and their experiences.

Evidently, these videos are made for parents, but you may find them useful if you have never attended a hearing or perhaps have limited experience.


Concluding remarks

When encountering heads with solid experience of SEND Tribunal hearings I have often been impressed by the extent of their legal knowledge, and the imaginative approaches they adopted throughout the process. However, this is the result of many years of experience. The tips in this article will help enhance your practical knowledge.

In the second article on this theme (now published here), I will provide some practical tips on how you should handle attending a Tribunal hearing in general terms and I will set out further practicalities concerning the Tribunal.

  • Nabil Dance is an education lawyer who advises parents and schools in England and Wales. He is a former Independent Appeal Panel Member for school admission appeals. You can contact him via nabildance@mail.com. The contents of this article do not constitute legal advice and are provided for informational purposes only. Read his previous articles for Headteacher Update via https://bit.ly/htu-dance


Further information and resources