Can I request the EP as an expert witness in my EHCP appeal, or could this backfire?
Our Educational Psychologist (a 2nd-year trainee) wrote a vague Section F provision with many examples rather than specific, quantified provisions. I have emailed three times requesting that it be made legally compliant, but the response I received stated:
"EP reports are written with the intention of enabling education staff to plan and deliver a personalised curriculum within a school or other educational setting. The additional examples that are included within advice help educators to incorporate recommendations/approaches into their lesson planning without limiting their creativity and flexibility, allowing staff to interpret the essence of the recommendation and plan to best effect."
I assume this aligns with LA policy, but my concern is that the vagueness makes the provision unenforceable. My son has an EOTAS package (recently agreed in final/nothing in place), and the LA is only organising tuition for the core curriculum. This means the examples listed in the EP report linking learning to interest (especially computing, which he accesses privately and consistently) are not included in his provision.
I agree with the essence of what she has written within F but due to the lack of detail I am appealing Sections B and F, and I’m wondering whether I should request the EP as an expert witness to clarify her recommendations—or whether this could backfire if she aligns with the LA's stance.
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 25 Jun 2025
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Yes
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Complex
Categorisation: YES
Classification: COMPLEXSuper Simple summary to help a parent explain the law to a child
If you go to court to ask for help with your Education Health and Care Plan (EHCP), sometimes the judge needs to hear from people who know you well. One of those people might be your educational psychologist, who helps check how you're doing at school. If they can tell the truth and help the judge understand what support you need, then it's okay to ask them to help. But we must be careful, because if they say things that are not helpful, it could make it harder to get the help you need.
Summary in simple English
In an appeal to the First-tier Tribunal (Special Educational Needs and Disability), you can ask an expert, like the Local Authority’s educational psychologist, to act as a witness. This can be helpful if they support your case and are prepared to give honest evidence. However, there are some risks. If the EP's report includes different views than yours regarding your child’s needs and/or if their views are consistent with the Local Authority’s position, asking them to be your witness might weaken your appeal. You can still refer to their report in your evidence even if they do not appear in person. It is best to ask for expert support from someone independent where possible, and, in view of the above, this may well not be the LA's EP.
Draft technical answer
It is legally possible to request that an educational psychologist (EP) be called as a witness in an appeal concerning an Education, Health and Care Plan (EHCP) before the First-tier Tribunal (Special Educational Needs and Disability) (SENDIST). This includes appeals under section 51 of the Children and Families Act 2014.
However, whether it is advisable to do so will depend on the role and position of the EP and the factual circumstances of the case.
Where the EP is the Local Authority’s own professional (such as the author of the educational psychology advice under Regulation 6(1)(d) of the Special Educational Needs and Disability Regulations 2014), they are usually considered a witness for the Local Authority. Their report will be included in the EHCP assessment bundle and is usually relied on by the Local Authority in its decision-making and defence of the EHCP in appeals.
Nonetheless, it is open to a parent or young person to request that this EP attend the hearing. Whether the Tribunal will compel the attendance of that EP depends on whether a direction is sought under Rule 16 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. That Rule allows the Tribunal to issue summonses or require a person to attend and give evidence.
Key risks in calling the LA’s EP as an expert witness:
Adverse Evidence: If the EP supports the Local Authority’s view or has produced a report that does not align with the parent's case, then cross-examining them may serve only to reinforce the Local Authority’s evidence.
Impartiality Concerns: Local Authority EPs are often viewed as not being wholly independent, and any oral evidence may reflect institutional pressures or policy constraints.
Wasted Opportunity: Using a witness slot (typically limited to 3 per party under Tribunal case management directions) for a potentially hostile witness may not be strategic where independent evidence would be more beneficial.
Possible advantages:
Clarification or Weaknesses: If the EP’s report contains unhelpful conclusions, they may be challenged and shown to have based their view on insufficient observation or evidence.
Admissions under Cross-examination: In some cases, effective questioning might produce helpful admissions or clarifications that support the child’s case.
Best practice guidance:
Carefully review the contents and stance of the EP’s written advice. If it appears neutral or favourable, and there are specific points on which clarification is useful, it may be tactically worthwhile to call them.
Consider whether an independent expert EP could better support the appeal. Independent experts are typically more willing to provide evidence that is genuinely focused on the child’s needs, rather than institutional policy.
Use the Local Authority EP’s report as documentary evidence, even if they are not called to attend. You may comment on any weaknesses in their assessment in written submissions and through your own witnesses.
The Tribunal will not require expert witnesses to be independent but will consider independence as one factor when assessing weight.
Answers from the No-nonsense Guides
Noddy No-nonsense Guide to SEN law
Q58 > Can I ask a Local Authority expert (such as the educational psychologist) to be a witness for me in a Tribunal hearing?
Yes you can.
But you may not want to. You can ask the Tribunal to direct that a local authority expert witness attend to give evidence in the hearing using rule 16 of the SEND Tribunal Procedure Rules. But if they are likely to say things that support the local authority’s case, then there is little point in doing so. You may be better to rely on the evidence of your own independent expert.Answers from the Support SEND Ask Experts
https://supportsendkids.org/questions/ask-an-expert/should-we-ask-the-la-ep-to-give-evidence/
Question: Should we ask the LA EP to give evidence?
Answer: That depends. If they agree with your position and you know that from previous meetings or have seen email evidence, then it can be helpful. If they’re going to undermine your case or repeat what they wrote in the original report, which doesn’t support your position, you might just be giving the LA another chance to present their case. Be strategic.Relevant Statutes, Regulations, Codes and Case Law
Children and Families Act 2014, s.51 – Rights of appeal to the First-tier Tribunal
SEND Regulations 2014, reg. 6(1)(d) – Requirement to seek educational psychology advice
Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, Rule 16 – Power to require witnesses to attend
Practical hints and tips
If the LA EP report contains favourable observations or conclusions, reference them in written submissions even if the EP is not called.
If you do choose to call the LA EP, prepare questions carefully and consider instructing an advocate to manage the cross-examination.
Independent EPs are often more persuasive and helpful to the child's case, especially when their reports are detailed and tailored to the child’s specific needs.
If you feel unsure, consult with a SEND advocate or solicitor before making this strategic decision.
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