SEND local offer - Resolving disagreements, mediation, tribunals and appeals
The SEND Code of Practice gives guidance on resolving disagreements between parents or young people and early years providers, schools, colleges, local authorities or health commissioners.
It is based on the following principles:
- decisions about provision should be made jointly by providers, parents and children and young people themselves, taking a person-centred approach
- relations and communication should be open so families know where they are in the decision-making process and the reasons why decisions have been made
- parents and young people should be given information and, where necessary, support so they can take part in decision-making and complaints processes
- the local authority must make known to parents and young people the possibility of resolving disagreements through disagreement resolution and mediation procedures, complaints procedures should be in place and made known by the local authority to parents and young people
Disagreement Resolution Service
Disagreement resolution would normally be used early on in the process and can be used whether the child or young person has an EHC plan or not. This service covers all children and young people with SEND and those who are identified as having additional educational needs. Independent disagreement resolution services are available to parents and young people in Stockton-on-Tees through Chapel Mediation Service. You can contact the service on 01833 630309.
Parents and young people can also use complaints procedures in addition, instead or, or in addition to disagreement resolution.
Mediation
Disagreement resolution arrangements and Mediation are different processes. Mediation is specifically linked to decisions about EHC assessment and EHC Plans.
Mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal and is a less formal way to resolve disagreements than going to tribunal. It saves time and can reduce the pressure for all involved.
Mediation Services must be independent of the local authority and health commissioners and provided by trained mediators.
The mediation service is available to parents, children and young people in Stockton-on-Tees via Chapel Mediation Service. You can contact the service on 01833 630309.
Parents and young people who wish to appeal to the tribunal may only do so after they have contacted an independent mediation adviser and discussed whether mediation might be a suitable way of resolving the disagreement.
Once information has been provided to the parent or young person they can decide if they want to go to mediation before registering any appeal. Where they decide not to use mediation the adviser will issue a certificate confirming that information has been provided. This certificate will enable a parent or young person to lodge their appeal, subject to time limits.
This requirement to contact a mediation adviser does not apply if the appeal is solely about the name of the school, college or other institution named on the EHC Plan.
Mediation is free and must take place within 30 days of being requested. The local authority must take part if requested by the parent or young person and must attend the mediation session.
You can got to mediation about the health and social care elements of an EHC Plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issues about which you are appealing.
If mediation resolves the educational issues, you will not be able to appeal to the tribunal on any health and or social care aspects of the EHC Plan. This does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.
Once completed the mediation adviser will issue a certificate to the parent or young person stating mediation has taken place, which must be sent to the Tribunal if they wish to register their appeal. An appeal to the Tribunal Service must usually be made within 2 months of the decision about which the appeal is being made or 1 months following issuing of the mediation certificate, whichever is later.
Tribunal
In line with Schedule 2 of the Special Educational Needs and Disability Regulations 2014 all local areas in England are required to publish details in their local offers for 'notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal'.
Parents, carers and young people can appeal to SEND Tribunal about decisions that the local authority has made about your child or young person or young adult up to 25 years old. You can also appeal to SEND tribunal about disability discrimination about schools, educational establishments and local authorities.
Parents and carers or young people have the right to challenge the local authorities' decisions on:
- not carrying out an education, health and care assessment
- not producing an education, health and care assessment
- the special educational support included in the plan
The SEND Tribunal can now make non-binding recommendations about the health and social care aspects of EHC Plans, as well as the education aspects. This gives the opportunity to raise all your concerns about an EHC Plan in one place.
It is only possible for the tribunal to consider the health and social care aspects of the EHC plan if you are already making an appeal linked to the education aspects of the EHC plan and education aspect must remain live throughout the appeal.
The SEND Tribunal national trial
From April 2018 to 31 August 2021, the Special Educational Needs and Disability Tribunal (the 'SEND Tribunal') ran a trial period whereby its powers were extended beyond disputes in relation to education, to include health and social care issues too. This is referred to as the 'national trial'.
The national trial was ended in 2021, and the Department for Education confirmed that the extended powers given by the trial would continue. This includes giving you the opportunity to request recommendations about the health and social care content of the plan at the same time as the educational content. This will mean the tribunal will take a more holistic, person-centred view of the needs of the child or young person.
When can a parent or young person request recommendations about the health and social care elements of an EHC plan?
You can request the tribunal makes recommendations about the health and or social care aspects of EHC plans as part of an appeal relating to:
- the description of the child or young person's special educational needs in an EHC plan
- the special educational provision specified in an EHC plan
- the school or other educational institution named in an EHC plan
- a decision by the local authority not to issue an EHC plan
- a decision by the local authority not to carry out a re-assessment for a child or young person who has an EHC plan
- a decision by the local authority not to amend an EHC plan following a review or re-assessment
- a decision by the local authority to cease to maintain an EHC plan
This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures. You should seek advice about the different routes available, including from your local Information Advice and Support Service (IASS).
Contact the SENDIASS team for impartial information, advice and support.
If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and, or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on the LGSCO website and the PHSO website.
What does this mean for local areas?
The trial placed responsibility on local authority SEND teams to:
- inform parents and young people of their rights through decision letters and the local offer
- provide evidence to the tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the tribunal, seeking permission to bring additional witnesses to the hearing as necessary
- if a recommendation has been made, send the health and social care response letters to the evaluators
It also places responsibility on health and social care commissioners to:
- respond to any request for information and evidence within the timeframe set by the tribunal
- send a witness to attend the hearing as required
- respond to the parent or young person and the local authority SEND team within 5 weeks of the recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation
Registering an appeal with the tribunal
Parents and young people have two months to register a SEN appeal from the date the local authority sent the notice containing the decision, or one month from the issue of the mediation certificate, whichever is latest. Accessing Mediation does not affect a parent or young person's right of appeal.
If you wish to appeal against a local authority decision on any of the ground above and want to request that the tribunal considers your concerns about the health and or social care aspects of the EHCP, you should following the normal process for bringing an appeal to the tribunal and tick the box on the form relating to a health and or social care appeal.
Appeal timeline
You will first receive a decision letter from the local authority.
An appeal must reach the tribunal within 2 months of the letter date, or 1 month from the date a mediation certificate was obtained.
Once the appeal is sent, the tribunal replies within 10 working days. This does not include:
- Saturday or Sunday
- all of August
- bank holidays
- between 25 December to 1 January
The tribunal will then respond to you and provide you with dates. The tribunal will also write to the Local Authority, sending a copy of all your appeal documents.
The Local Authority responds within 30 days of receiving your copied appeal documents.
Any outstanding documents must reach the tribunal by the dates given and a copy must be sent to the Local Authority.
At least 10 working days prior to considering your appeal and making the decision, the tribunal will send you and the Local Authority a page numbered set of documents that they received regarding the case.
Generally you will receive the decision and reason in writing within 10 working days.
The local authority has 4 weeks to begin an EHC assessment. You have 28 days to apply for a tribunal review if you feel a serious cause for the decision is wrong.
Contact the SENDIASS team for impartial information, advice and support.
Disability discrimination claims
Parents of disabled children in school have the right to make a disability discrimination claim to the tribunal, against schools or the LA within 6 months of the alleged discrimination taking place.
Disability discrimination claims by young people against post-16 institutions and by parents about early years provision are made to the county court.
Further information can be found in Chapter 11 of the SEND code of practice.
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