SEND Mediation and Disagreement resolution

Mediation 

 

Mediation is a voluntary process for parents and young people, which can be used if agreement cannot be reached about matters related to Education and Health Care (EHC) plans. It is provided by a trained and accredited mediator who is independent of the local authority and Clinical Commissioning Group.

Mediation is available to parents or young people if there is a disagreement about the local authority’s decision:

  • not to carry out an EHC needs assessment or re-assessment

  • not to draw up an EHC plan after an EHC needs assessment has been done

  • not to amend an EHC plan after an annual review or re-assessment

  • to cease to maintain an EHC plan.

 

Mediation must also be available if parents or young people disagree with:

  • the parts of the EHC plan that describe the child or young  person’s special educational needs

  • the special educational provision set out in the EHC plan

  • the health and social care elements of an EHC plan.

 

A request for mediation must be made within 2 months of the date of the decision notice by the local authority.

 

Parents and young people can also register an appeal to the SEND Tribunal about the matters listed above. This is an independent first-tier tribunal who hear and decide parents’ or young peoples’ appeals against the decisions of the local authority in relation to special educational needs.

 

In order to register an appeal you must first contact an independent mediation adviser and obtain a certificate to show that you have done so. The mediation adviser will provide you with factual information, explain what is involved and answer any questions you may have about mediation.

 

Once you have contacted the mediation adviser you can choose whether you wish to go to mediation or not. You will need a certificate from the mediation adviser before you can register your appeal with the SEND Tribunal.

 

Global Mediation’s Mediation Adviser can be contacted on 0800 464 4488. This service is free of charge and your conversation is confidential.

 

There are some circumstances in which you do not need to have a certificate from a mediation adviser before you register an appeal with the SEND Tribunal. This is the case if the appeal is solely about the name of the school, college or other institution named on the EHC plan, the type of school, college or other institution specified in the plan or the fact that no school or other institution is named. In addition you do not need to seek mediation advice if the appeal is solely about the health and social care elements of an EHC plan.  

 

If you are unsure whether these exceptions apply you can contact Cornwall and Isles of Scilly SENDIASS or Global Mediation for more information and advice.

 

If you decide to go to mediation, Global Mediation will make all the arrangements for you. The mediation will take place within 30 days and will be at a time and place that is convenient to you.

Cornwall & Isles of Scilly SENDIASS

SEND information, advice and support service

Contact Tel:  01326 331633  Online contact form:  www.cornwallsendiass.org.uk/contact-us/  Website:  www.cornwallsendiass.org.uk

 

Global Mediation

To discuss or request mediation advice and meditation

Contact Tel: 020 8441 1355 Email:  info@globalmediation.co.uk  Website:  Global Mediation - Mediation Services in London & Nationwide

 

Registering an appeal with the Tribunal

The Tribunal hears appeals against decisions made by local authorities in England in relation to children’s and young people’s EHC needs assessments and EHC plans.  Parents (in relation to children from 0 to the end of compulsory schooling) and young people (over compulsory school age until they reach age 25) can appeal to the Tribunal, following contact with a mediation adviser in most cases (see above for details).

Parents and young people can appeal to the Tribunal about: 

  • a decision by a local authority not to carry out an EHC needs assessment or re-assessment

  • a decision by a local authority that it is not necessary to issue an EHC plan following an assessment

  • the description of a child or young person’s SEN specified in an EHC plan, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified

  • an amendment to these elements of the EHC plan

  • a decision by a local authority not to amend an EHC plan following a review or re-assessment

  • a decision by a local authority to cease to maintain an EHC plan.

 

The Tribunal does not hear appeals about Personal Budgets, but will hear appeals about the special educational provision to which a Personal Budget may apply.

 

Parents and young people who are unhappy with decisions about the health and social care elements of an EHC plan can go to mediation.  They can also complain through the health and social care complaints procedures.

The following conditions apply to appeals: 

  • the parent or young person can appeal to the Tribunal when the EHC plan is initially finalised, following an amendment or a replacement of the plan

  • appeals must be registered with the Tribunal within two months of the local authority sending a notice to the parent or young person of the decision about one of the matters that can be appeal to the Tribunal or within one month of a certificate being issued following mediation or the parent or young person being given mediation information

  • the right to appeal a refusal of an EHC needs assessment will be triggered only where the local authority has not carried out an assessment in the previous six months

  • when the parent or young person is appealing about a decision to cease to maintain the EHC plan the local authority has to maintain the plan until the Tribunal’s decision is made 

 

Single Route to Redress - National Trial

 

The Government are extending the powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans as part of a two-year national trial. 

 

The trial will apply to decisions made or EHC plans issued/amended from 3 April 2018. 

 

To date, you have only been able to appeal the educational aspects of EHC plans. The trial gives you new rights to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This gives you 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/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.

 

You can ask the Tribunal to make non-binding recommendations on health and/or social care aspects of EHC plans as part of an appeal relating to:

  • 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/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

  • the description of the child/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

 

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow 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. 

 

Advice on making SEND appeals to the Tribunal is available from the GOV.UK website: First-tier Tribunal (Special Educational Needs and Disability) - GOV.UK (www.gov.uk)

 

There will be an independent evaluation of the trial to inform a decision on whether the new tribunal recommendation powers should be continued after the trial. It is important that the evaluation is based on robust evidence, and the evaluators are therefore strongly encouraging participation from parents and young people through telephone or online interviews.

Parents and young people that take part in the trial will receive a letter from the Tribunal explaining more about the evaluation and how their personal data will be stored confidentially and how it will be protected.

 

Single Route of Redress – SEND Tribunal Extended Powers

   

What is the outcome of the National Trial?

The National Trial commenced from April 2018 to August 2021 testing the extended powers for the SEND Tribunal.  The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the Tribunal's extended powers, which has been published and can be viewed on the Gov.uk website:  Guidance overview: SEND tribunal: extended appeals - GOV.UK (www.gov.uk)  

 

Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans..  

 

Previously, you have only been able to appeal the educational aspects of EHC plans.  The continuation of the extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal.  This gives you 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/or social care aspects of the EHC plan where you are already making an appeal in relation to the education aspects of the EHC plan and the education aspect must remain live throughout the appeal.

 

What does this mean for parents and young people?

If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal.  You are also able to request recommendations about the health and social care content of the plan at the same time, provided there is also an education element. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person. 

This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures and you should seek advice about the different routes available.

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 their websites.

 

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/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/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

 

What does this mean for local areas?

The SEND Tribunal extended powers places responsibility on local authority SEND teams to:

  1. Inform parents and young people of their new rights through decision letters and the local offer

  2. 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

 

It also places responsibility on health and social care commissioners to:

  1. Respond to any request for information and evidence within the timeframe set by the Tribunal

  2. Send a witness to attend the hearing as required

  3. Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.

 

How can a parent or young person request a health or social care recommendation?

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and/or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal.  Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website:  First-tier Tribunal (Special Educational Needs and Disability) - GOV.UK (www.gov.uk)

As a parent or young person, do I have to consider mediation?

Before you can register an appeal with the Tribunal, you must contact a mediation adviser within two months of the LA decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the LA. If you want to appeal only about the school or other institution named in the EHC plan you do not have to contact a mediation adviser.

You can go 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 issue about which you are appealing.

 

Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate.  This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal. An appeal to the Tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is the later. 

 

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.  However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal.  It 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.  

 

Help and further information