The Special Educational Needs and Disability Regulations 2014

Appeals

Powers of the First-tier Tribunal

43.—(1) Before determining any appeal, the First-tier Tribunal may, with the agreement of the parties, correct any deficiencies in the EHC Plan which relate to the special educational needs or special educational provision for the child or the young person.

(2) When determining an appeal the powers of the First-tier Tribunal include the power to—

(a) dismiss the appeal;

(b) order the local authority to arrange an assessment of the child or young person under section 36 or a reassessment under section 44(2) where the local authority has refused to do so, where the appeal made under section 51(2)(a) or (d);

(c) order the local authority to make and maintain an EHC Plan where the local authority has refused to do so, where the appeal is made under section 51(2)(b);

(d) refer the case back to the local authority for them to reconsider whether, having regard to any observations made by the First-tier Tribunal, it is necessary for the local authority to determine the special educational provision for the child or young person, where the appeal is made under section 51(2)(b);

(e) order the local authority to continue to maintain the EHC Plan in its existing form where the local authority has refused to do so, where the appeal is made under section 51(2)(c), (e) or (f);

(f) order the local authority to continue to maintain the EHC Plan with amendments where the appeal is made under section 51(2)(c) or (e) so far as that relates to either the assessment of special educational needs or the special educational provision and make any other consequential amendments as the First-tier Tribunal thinks fit;

(g) order the local authority to substitute in the EHC Plan the school or other institution or the type of school or other institution specified in the EHC plan, where the appeal concerns, the specific school or other institution, or the type of school or other institution named in the EHC Plan, where the appeal is made under section 51(2)(c)(iii) or (iv);

(h) where appropriate, when making an order in accordance with paragraph (g) this may include naming—

(i) a special school or institution approved under section 41 where a mainstream school or mainstream post-16 institution is specified in the EHC Plan; or

(ii) a mainstream school or mainstream post-16 institution where a special school or institution approved under section 41 is specified in the EHC Plan.

Compliance with the orders of the First-tier Tribunal

44.—(1) Subject to paragraph (3) or any direction made by the First-tier Tribunal, if the First-tier Tribunal makes an order requiring a local authority to take any action, the local authority shall take that action within the period specified in paragraph (2).

(2) Where the order—

(a) dismisses an appeal against a determination to cease an EHC Plan, the local authority shall cease to maintain the EHC Plan immediately;

(b) requires a local authority to make an assessment or reassessment, the local authority shall within 2 weeks of the order being made notify the child’s parent or the young person that it shall make the assessment or reassessment and shall—

(i) where, following the assessment or reassessment, the local authority decides that it is not necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, notify the child’s parent or the young person of its decision, giving reasons for it as soon as practicable, and in any event within 10 weeks of the date of the First-tier Tribunal’s order; or

(ii) where, following the assessment or reassessment, it decides that it is necessary for special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to those specified in regulation 13(2) as soon as practicable and in any event within 14 weeks of the date of the First-tier Tribunal’s order;

(c) requires a local authority to make and maintain an EHC Plan, the local authority shall—

(i) issue a draft EHC Plan within 5 weeks of the order being made; and

(ii) send a copy of the finalised EHC plan to the child’s parent or young person under Regulation 14, within 11 weeks of the order being made.

(d) refers the case back to the local authority for it to reconsider, the local authority shall do so within 2 weeks of the order being made and shall either send a copy of the draft EHC Plan as required under Regulation 13 or give notice as required under Regulation 5 of any decision not to maintain an EHC Plan;

(e) requires a local authority to amend the special educational provision specified in an EHC Plan, the local authority shall issue the amended EHC Plan within 5 weeks of the order being made;

(f) requires the local authority to amend the name of the school or other institution or the type of school or other institution specified in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the order being made;

(g) requires the local authority to continue to maintain an EHC Plan in its existing form, the local authority shall continue to maintain the EHC Plan; and

(h) to continue and amend an EHC Plan, the local authority shall continue to maintain the EHC Plan and amend the EHC Plan within 5 weeks of the order being made.

(3) The local authority need not comply with the time limits specified in paragraph (2)(b) and (c) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or their parent, or the young person during that period of time;

(b) the child or their parent or the young person is absent from the area of the authority for a continuous period of 2 weeks or more during that period of time; or

(c) any of the circumstances referred to in regulation 13(3) apply.

Unopposed appeals

45.—(1) This regulation applies where the child’s parent or young person has appealed to the First-tier Tribunal and the local authority notifies the First-tier Tribunal that it will not oppose the appeal before it submits a response.

(2) The appeal is to be treated as if it was determined in favour of the appellant and the First-tier Tribunal is not required to make an order.

(3) Where the appeal concerned a request for a local authority to make an assessment under section 36 or a review or reassessment under section 44, the local authority shall carry out that assessment, review or reassessment within 4 weeks of the local authority’s notification to the First-tier Tribunal.

(4) Where the appeal concerns the contents of the EHC Plan, then the local authority shall issue the amended EHC Plan within 4 weeks of the local authority’s notification to the First-tier Tribunal.

(5) Where the appeal concerns the name of the school or other institution, or type of school or other institution to be named in the EHC plan, the local authority shall issue the amended EHC plan within 2 weeks of the local authority’s notification to the First–tier Tribunal.

(6) Where the appeal concerns the refusal of the local authority to make an EHC Plan, then the local authority will arrange to make an EHC Plan within 5 weeks of the local authority’s notification to the First-tier Tribunal.

(7) The local authority need not comply with the time limits specified in paragraphs (3), (4) or (6) if it is impractical to do so because—

(a) exceptional personal circumstances affect the child or their parent or the young person during the relevant period;

(b) the child or their parent or the young person are absent from the area of the local authority for a continuous period of not less than 2 weeks during the relevant period; or

(c) any of the circumstances referred to in regulation 13(3) apply.