Archived decisions

Appendix 2

Appeals by parents to the SEN and Disability Tribunal

Parents can appeal to the Special Educational Needs and Disability Tribunal, an independent appeal panel, about key decision points made by the Local Authority in respect of children in relation to statutory arrangements for identification, assessment and making provision. Of the overall 30,000 or so children in Hampshire identified by schools as having SEN, some 4,700 have Statements of SEN with approximately 450 statutory assessments of SEN carried out each year. National guidelines state that only approximately 2% of the total school population will need a statement.

Local authorities respond to appeals about SEN but it is usually schools that are the respondents to any appeals about disability discrimination. This briefing addresses the SEN related appeals.

Only those with parental responsibility can make appeals about SEN. Appeals can be against a number of Local Authority decisions and these are listed in Appendix 1.

National context

The 2004/05 report of the SEN and Disability Tribunal, the latest available, shows a 2 year decrease in the number of SEN appeals. Following a steady increase over the previous 8 years, from 1,274 in 1994/95, to 3,772 in 2002/03, numbers fell slightly in 2003/04 to 3,637, and again in 2004/05 to 3,513

Most appeals are resolved without the need for a hearing. In 2004/05 only 33% of appeals were decided by an appeal hearing.

40% of appeals that were registered in 2004/05 were against a Local Authority decision to refuse a request for an assessment.

Of the total number of appeals that went to hearing in 2004/05, 77% were upheld (found for parents) and 23% were dismissed. When an appeal is upheld, it may only be in part, with the resulting decision including some, but not necessarily all of the provision sought by the parents.

Hampshire

Appendix 2 provides details of SENDIST appeals for Hampshire during the Tribunal reporting period (i.e. the Sept-August academic year) in the years 2003/04, 2004/05, and 2005/06. These show that the situation in Hampshire is in line with, and in some aspects better than national trends. The percentages for the number of appeals heard by the tribunal are similar, while the percentages upheld by the tribunal are lower in Hampshire than nationally.

The County Council has approved policies for SEN, Inclusion and Behaviour Support within the overarching context of the Children and Young People's Plan and it is this policy framework that guides implementation of operational procedures relating to decisions about individual children, the assessment of their specific needs and circumstances, and the determination of appropriate provision and placement. It also ensures, as far as possible, consistency of decision making and an equitable distribution of resources. The latter is important both for schools and the County Council, particularly within the current financial constraints.

In applying these policies, Officers do all that they can to arrange for the education of children with SEN in accordance with their parents' wishes and in most cases are able to do so. However, there is a growing pressure on requests for statutory assessment inevitably leading to an increase in statements ; parental requests for specialist provision particularly special school placements and for out-county special schools (independent and non-maintained placements) are also increasing.

Actions

Hampshire already has a good record of resolving appeals without the need for a hearing at SENDIST. It is also worth noting that many parents submit an appeal before they enter into discussions with the County Council, to avoid missing the deadline. This is actively encouraged by voluntary organisations, the legal profession, and advocates/supporters, and is why a large number are subsequently withdrawn.

As part of our ongoing management action in relation to SENDIST appeals, the SEN service has taken steps to deal with appeals and specifically to reduce the number of appeals against refusal to assess though statutory assessment by:

· Further strengthening moderation arrangements to review decisions about refusals to assess before parents are informed of the decision

· The setting up of an advisory group to review and scrutinize all SENDIST appeals that have been submitted on a fortnightly basis

· Promoting the use of the Inclusion Partnership Agreement as an alternative to statutory assessment for children with high incidence needs when a continued mainstream placement is envisaged

· Continued working across services to ensure that children's special educational needs are appropriately identified as early as possible and addressed by individualised interventions without recourse to statutory assessment, unless necessary

· Access to the Parent Partnership Service and independent disagreement resolution to ensure that parents are supported and have the opportunity for support if there is a disagreement with the Local Authority

· Dedicated work to support the Local Authority's officers so that they are fully equipped to give well evidenced and presented case at SENDIST.

Conclusion

Managing a demand led set of statutory functions to meet all of a child's assessed needs within a strictly defined legal framework, with prescribed time limits, within cash limited budgets and with the expectation of meeting parental wishes on all occasions is extremely demanding, especially when there is a right of appeal against the vast majority of decisions taken. This is also within the context of increasing parental expectations, the prospect of an additional performance indicator for the time taken to reach a final statement and mounting financial pressures.

It must also be recognised that as soon as the SEN Service receives a request for statutory assessment the legal process has been triggered. However unnecessary an assessment might be, the parents will have the right of appeal if the request is refused. This places an increasing need for services, in partnership with mainstream schools, to ensure that children's needs are identified, assessed, and suitable interventions made, so that only those with the most severe and complex needs, the approximately 2% of the total school population, are referred for statutory assessment.

Grounds for Appeal to the SEN and Disability Tribunal

Only those with parental responsibility can make special educational needs appeals.

Appeals can be against :

· the refusal the carry out a statutory assessment

· the refusal to issue a statement after making a statutory assessment

· the description in Part 2 of the statement (the needs of the child) for a first or amended statement

· the description in Part 3 of the statement (the provision specified) for a first or amended statement

· the school named in Part 4 of the statement for a first or amended statement

· the Local Authority not naming a school in Part 4 of the statement for a first or amended statement

· a refusal to change the school named in the statement if that statement is at least a year old. The parent can only ask for a Local authority maintained school (one funded by the LEA)

· a refusal to reassess a child's special educational needs if the LEA has not made a new assessment for at least six months

· the decision to cease to maintain a statement

· the decision not to amend the statement after completion of a reassessment.

Parents have to register an appeal within two months of receiving their notification of the local authority's decision.