Inclusion Now 60

Legal Question

“My grandson, Nadeem, is living with me. His mum is a single parent and currently detained in a long stay hospital with mental health issues. Nadeem is struggling in school with serious ‘school phobia’ and wants to learn remotely, at home, until he feels more in control of his anxiety. Our Local Authority has turned down my request for an EHC assessment and plan, that would include SEND provision to be arranged remotely from where Nadeem’s living. I have requested remote education and regular support for Nadeem, from an education psychologist and mental health team. As his mother is on a Mental Health Act Section 3, and struggling with her own mental health, what rights do I or Nadeem have to make a statutory appeal to tribunal, with some urgency? We do not know if or when Nadeem will be in a position to submit an SENDIST application. What can I do as his grandmother to support him?”

A child’s parent or a Young person may appeal to the First-tier Tribunal against the decision not to carry out an EHC Needs assessment. If you have parental responsibility for Nadeem, and he is under compulsory school age then you can submit an appeal yourself. If Nadeem is over compulsory school age, which is after the last Friday in June of the academic year he turns 16, the right of appeal becomes his. You can however still assist in an appeal and if he is not able to make an appeal himself, you should be able to do so on his behalf.

The Tribunal rules say that you cannot lodge an appeal until you have considered mediation and have contacted a mediation advisor. This must be done within two months of the date of the letter from the Local Authority refusing to carry out the EHC needs assessment. You do not have to agree to mediation and can request that the mediation provider simply sends you a certificate. The decision letter from the Local Authority should give contact details for a mediation advisor, who should be independent.

Once you have received the mediation certificate, you can lodge an appeal with the Tribunal, subject to meeting the requirements set out above. Any appeal must be received by the Tribunal within two months of the date of the decision letter, or one month of the mediation certificate, whichever is the later date. To lodge an appeal, you should complete ‘Form SEND35a’ which is found on the government website. When you have completed the appeal form it should be sent with all other relevant documents to ‘send@hmcts.gsi.gov.uk’. In deciding whether the Local Authority should carry out an EHC needs assessment, the Tribunal will consider whether Nadeem has or may have special educational needs, and whether it may be necessary for special educational provision to be made in accordance with an EHCP. It is unfortunate that these appeals are not quick and securing support in this way can take time.

Regardless of whether an EHCP is in place, it is important to note that if Nadeem is of compulsory school age and is unable to attend school because of his own anxiety, then the Local Authority may be responsible for arranging a suitable education otherwise than at school. This will depend on the specific circumstance of each case but if you have medical evidence to support Nadeem’s difficulties, you should share this with the Local Authority.  If the Local Authority refuse to make alternative arrangements, then this decision may be challengeable by way of Judicial Review. This is a complaint in the courts against a public body which seeks to resolve the situation. It is my recommendation that you speak to a legal advisor if you consider this to be the case.

If families find themselves in difficult situations like these then they can seek legal advice on their individual circumstances. It is important to remember that up to date advice on your specific circumstances will always be beneficial.

This Legal Question was posed by ALLFIE’s Simone Aspis, and answered by Lydia Neill, a Paralegal in the Public Law Team at Simpson Millar Solicitors.

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