Phase transfer appeals: priority listings, tribunal timetables and what the February deadlines mean for families

The First-tier Tribunal (Special Educational Needs and Disability) has experienced sustained pressure over recent years. Published tribunal statistics consistently show a sharp rise in the number of SEND appeals lodged each year, alongside longer average waiting times for hearings and decisions. In broad terms:

• The number of SEND appeals has more than doubled compared with the mid-2010s.
• Appeals relating to Education, Health and Care Plans (EHCPs) now make up one of the largest and fastest-growing areas of tribunal work.
• Waiting times from registration to final decision have lengthened, with many families experiencing waits of several months longer than in previous years.

These figures sit against a backdrop of increased demand, complex cases, and limited judicial and administrative capacity. Tribunal judges and staff have repeatedly acknowledged these pressures and have taken steps to adapt, including revised case management approaches and prioritisation frameworks.

For parents, however, statistics offer little comfort when time is critical. Delays are not abstract; they affect school places, support packages, and children’s wellbeing. This is felt most acutely by families whose children are out of school or in an unsuitable setting. For those approaching points of transfer between phases of education, it impacts on transition planning and proper preparation for their child. Parents will soon hear what school their local authority proposes, or “names”, in Section I of their child’s EHCP i.e., the next school they are expected to attend, such as:

• Nursery to primary
• Infant to junior
• Primary to secondary
• Secondary to post-16 provision

For those families, who do not consider the setting named suitable, time is of the essence in order to ensure there is time to prepare for September. Our clients are often in the position of having a suitable school placement offered at an alternative setting and need to act quickly to ensure that the place is reserved and that evidence is gathered to identify the issues with the school named by the local authority and demonstrate the suitability of their preferred setting. It is important that this is done with reference to the child’s needs and the provision required to meet these needs rather than with reference only to what makes the school “better”. We often see the need to focus this approach and instructions to experts in order that the assessments and resultant reports are clear and relevant for any appeal. 

It is therefore important to highlight a key point that can easily be lost amid understandable concern: the SEND Tribunal does prioritise phase transfer cases.

For parents with final “phase transfer” EHCPs issued by February, the Tribunal’s established practice is to list these appeals as a priority. The explicit aim is to ensure that:

• Hearings take place in sufficient time; and
• Decisions are issued before September, allowing appropriate placements and support to be put in place for the start of the new academic year.

This prioritisation reflects an awareness within the Tribunal of the high stakes involved in phase transfers and the potentially lasting impact of delay at these transition points. It is of note, however, that this is an aim, rather than a guarantee. Therefore, swift action and lodging an effective appeal quickly is the best assurance of an early hearing. It is a serious risk to rely on informal assurances given by local authorities when they issue a final amended EHCP that only names a type of placement. This is usually done to comply with the statutory deadline and they then seek to reassure parents that they will name a placement soon. Even if true, if the school is not your preferred setting, you may still need to appeal and parents are losing precious time. Therefore, parents should appeal as soon as they have the right of appeal. The local authority can continue to consult and you can continue to negotiate throughout the process and, if resolved, a consent order can be applied for without need for a full hearing.  

Similarly, if the local authority misses the deadline by which to issue an EHCP naming a secondary school, this must be robustly challenged by legal correspondence in line with Pre-Action Protocol for Judicial Review. Once the final EHCP and decision letter is received by the local authority, getting a mediation certificate straight away will allow you to appeal quickly. 

Respect for the Tribunal means recognising the professionalism and commitment of those working within it, often under significant strain. At the same time, sympathy for parents is not only appropriate but necessary. Families navigating the SEND system are frequently doing so while managing stress, uncertainty, and the day-to-day realities of supporting a child with additional needs.

The current delays are not a failure of individual judges or staff, but a systemic issue driven by poor decision making by the local authority (remember over 90% of appeal are found in parents’ favour), rising demand and constrained resources. Continued transparency around statistics, realistic timetabling, and clear communication about prioritisation -particularly for phase transfer appeals - are essential in maintaining trust.