Challenging SEND Tribunal decisions

Set aside

The SEND Tribunal are able to set aside and remake the decision if there has been a procedural error which has put one of the parties at a disadvantage.

For this to happen, it must be in the interests of justice for the decision to be set aside, and one or more of 4 conditions must be met:

• a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party or party’s representative or
• a document relating to the proceedings was not sent to the SEND Tribunal at an appropriate time or
• a party, or party’s representative, was not present at a hearing related to the proceedings or
• there has been some other procedural irregularity in the proceedings

Whether it is ‘in the interests of justice’ means the SEND Tribunal will consider whether the procedural irregularity resulted in a party being treated unfairly. For example, if a document was not sent to a parent, but it would not have made any difference to the decision if it had been, then that would be unlikely to result in the decision being set aside.

Appeal

You can only appeal against a SEND Tribunal decision if you can demonstrate that the SEND Tribunal made (or may have made) an error of law. You cannot appeal simply because you disagree with the conclusion they have reached, or disagree with their interpretation of the facts.

An error of law might involve:

• a failure to explain the reasons for reaching its decision
• taking into account the wrong factual matters
• failing to make a finding about a relevant factual matter
• applying the wrong legal test when reaching its decision.

It can be a lengthy process.

An application must be made to the SEND Tribunal for permission to appeal. The SEND Tribunal will first consider whether to review the decision; it will review if it is satisfied that there has been an error of law or because of a change of circumstances. The local authority will be given the opportunity to make representations.

If the SEND Tribunal decides not to review, or it does review and decides not to take any action, it must consider whether to grant permission to appeal – the test is whether there is an ‘arguable case’ that there was an error of law. It must send a written record of its decision to the parties as soon as practicable.

If the SEND Tribunal refuses permission to appeal, there is a right to apply for permission to appeal from the Upper Tribunal (Administrative Appeals Chamber). If permission is granted, the Upper Tribunal may deal with the case on the papers or by way of an oral hearing.

The most likely eventuality if the party appealing wins is that the case will be remitted back for consideration at a fresh hearing in the First-tier Tribunal.

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