Challenging Decisions, Mediation and Tribunals
The new Children and Families Act 2014 Code of Practice recognises that decisions about provision for children and young people with SEN or disabilities should be made jointly by them, their parents, and the providers, always taking a person-centred approach.
The Code of Practice supports early resolution of any disagreements between parents or young people and providers. For example, complaints about a school would be made in line with it's complaints procedure usually beginning with the teacher, then the teacher's manager i.e. a more senior member of staff including the SENCO, Head Teacher, then Chair of Governors and finally the local authority, Ofsted and the Local Government Ombudsman.
Parents and young people can use the providers complaints procedures and also the disagreement resolution arrangements detailed below.
The guidance in the Code of Practice on resolving disagreements is based on the principle that relations between education, health and social care services and parents and young people should be marked by open communication.
Parents and young people should be given information and, where necessary, support so that they can take part in decision-making and complaints processes and know the reasons why decisions have been made.
Informal support in resolving disagreements
Parents and young people can access informal impartial support in resolving disagreements through our service - Portsmouth SEND Information, Advice and Support Service, Tel: 0300 303 2000.
However, sometimes problems cannot be resolved informally and parents of children with SEN and young people will need to know how decisions can be challenged and how to make formal complaints.
Disagreement resolution arrangements and mediation
The terms ‘disagreement resolution’ and ‘mediation’ are often used interchangeably, however under the Children and Families Act 2014 they refer to different processes.
Disagreement resolution arrangements apply more widely and are designed to resolve disagreements about the performance of duties, SEN provision, disagreements over health and social care provision and disagreements between health commissioners and local authorities and are voluntary for both parties.
Mediation arrangements are specifically linked to decisions about EHC needs assessments and plans and apply specifically to parents and young people who are considering appealing to the Tribunal about EHC needs assessments and the special educational element of an EHC plan or who want mediation on the health and social care elements of an EHC plan.
Parents and young people must contact a mediation adviser before registering an appeal about EHC needs assessments or the SEN element of an EHC plan.
Parents and young people do not have to engage with the disagreement resolution services at any time, including before registering an appeal. Use of disagreement resolution services is voluntary and has to be with the agreement of all parties.
Local authorities can contract disagreement resolution services and mediation from the same providers.
Disagreement resolution services
- cover all children and young people with SEN, not just those who are being assessed for, or have an EHC plan.
- are available to parents and young people to resolve disagreements about any aspect of SEN provision, and health and social care disagreements during the EHC needs assessment and whilst developing the EHC plan.
- can provide a quick and non-adversarial way of resolving disagreements and used early in the process of EHC needs assessment and EHC plan development can prevent the need for mediation and appeals to the Tribunal.
- can be used at any time, if both parties agree, including while an EHC needs assessment is being conducted, while the plan is being drawn up, after the plan is finalised or while an appeal is going through the Tribunal process.
- are commissioned by the local authority but must be independent of it and details of the services must be made available by Local Authorities to parents and young people and to headteachers, governing bodies, proprietors and principals of schools and post-16 institutions in their areas and to others they think appropriate.
- can be used to help resolve four types of disagreement or to prevent them from escalating further:
- The first is between parents or young people and local authorities or the governing bodies/proprietors of settings about how they are carrying out their education, health and care duties for children and young people with SEN, whether they have EHC plans or not.
- The second is disagreements between parents or young people and early years providers, schools or post-16 institutions about the special educational provision made for a child or young person, whether they have EHC plans or not.
- The third is disagreements between parents or young people and Clinical Commissioning Groups or local authorities about health, social care or special educational provision during EHC needs assessments, while EHC plans are being drawn up, reviewed or when children or young people are being reassessed.
- The fourth is disagreements between local authorities and health commissioning bodies during EHC needs assessments or re-assessments, the drawing up of EHC plans or reviews of those plans for children and young people with SEN. In relation to EHC plans, this includes the description of the child or young person’s education, health and care needs and any education, health and care provision set out in the plan. These disagreements do not involve parents and young people.
A decision by parents and young people not to use disagreement resolution services has no effect on their right to appeal to the Tribunal and no inference will be drawn by the Tribunal if the parties to a disagreement have not used the disagreement resolution services.
Details of the disagreement resolution arrangements must be set out in the Local Offer.
Portsmouth City Council makes its Disagreement Resolution arrangements through GLOBAL MEDIATION:
T: 0800 064 4488
P: GLOBAL MEDIATION LTD, 42 Lytton Road, Barnet EN5 5BY
One of new features brought in by the Children and Families Act 2014 is the requirement for compulsory consideration of mediation which now applies in most cases where a parent or young person wishes to appeal to the Special Educational Needs and Disability (“SEND”) Tribunal.
Mediation is where an independent third party endeavors to resolve a dispute between two opposing parties.
The cases where parents and young people do not have to contact the mediation adviser prior to registering their appeal with the Tribunal are when their appeal is solely about the name of the school, college or other institution named on the 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 these cases parents and young people will already have had the opportunity to request a school, college or other institution and to discuss this in detail with the local authority. The disagreement resolution arrangements would be available if parents or young people and local authorities wanted to attempt to resolve the dispute about the placement by making use of these arrangements before an appeal is made.
The cases where parents and young people do have to contact the mediation adviser prior to registering their appeal with the Tribunal are when their appeal is about a decision of the local authority not to carry out an EHC needs assessment, not to draw up an EHC plan,the description of a child or young person’s SEN specified in an EHC plan,the special educational provision specified in an EHC plan or amended plan, a decision not to amend an EHC plan or a decision to cease to maintain an EHC plan.
In these cases parents and young people who wish to make an appeal to the Tribunal may do so only after they have contacted an independent mediation adviser and discussed whether mediation might be a suitable way of resolving the disagreement.
If the parent or young person does not want mediation, they will need to obtain a mediation certificate. This is a certificate from a mediation adviser stating that the parent/young person has been informed about mediation and has decided not to pursue mediation.
If the parent/young person does enter into mediation, and it is not successful, they will instead need a certificate stating that they have participated in mediation before proceeding.
When the local authority sends the parent or young person notice of a decision which can be appealed to the Tribunal it must inform them of their right to go to mediation, the requirement to contact a mediation adviser before registering an appeal with the Tribunal, the contact details of the mediation service and adviser, the timescales for requesting mediation and the fact that their right to appeal is not affected by entering into mediation.
If the parent or young person is considering registering an appeal and has contacted the mediation adviser, the adviser will provide information on mediation and answer any questions which the parent or young person may have. The information will normally be provided on the telephone, although information can be provided in written form, through face-to-face meetings or through other means if the parent or young person prefers.The mediation information which is given to parents and young people should be factual and unbiased. The local authority will pay reasonable travel expenses and other expenses to the parent or young person taking part in mediation.
Where the parent or young person decides not to go to mediation during or following contact with the mediation adviser the adviser will issue a certificate, within three working days of the parent or young person telling them that they do not want to go to mediation, confirming that information has been provided. The certificate will enable the parent or young person to lodge their appeal, either within two months of the original decision being sent by the local authority or within one month of receiving the certificate whichever is the later.
A parent or young person may choose to go to mediation regarding the social care and health sections of a plan but these cannot be the subject of an appeal to SEND so parents and young people do not have to receive mediation advice before going to mediation.
Health and social care provision which educates or trains a child or young person is treated as special educational provision, rather than health and social care provision, and can be appealed to the Tribunal and the parent or young person would have to contact a mediation adviser before appealing about that provision.
If the parent or young person wants to go to mediation about the health care matters then the local authority must inform each relevant commissioning body within three working days of being contacted by the parent or young person about those matters.
The body responsible for arranging mediation which is solely about the health care elements of the plan must do so within 30 days of being informed by the local authority.
If the parent or young person has told the local authority that they disagree with the social care element of the plan then the local authority must arrange the mediation.
Going to mediation about the health and social care elements of an EHC plan does not prevent a parent or young person also complaining via the providers complaints procedures.
Although the mediation arrangements are different for the different elements of an EHC plan, the right to go to mediation about all elements provides an opportunity for disagreements about a plan to be dealt with holistically and at one venue. Where the disagreements are about more than one element of the plan, including the educational element, the local authority should not arrange the mediation until the parent or young person has contacted the mediation adviser and decided whether they want to go to mediation about the educational element of the plan, so that one mediation can be arranged covering all areas of disagreement.
Local authorities must set out the arrangements they have made for securing mediation information services and mediation itself in the Local Offer.
Portsmouth City Council makes its Mediation arrangements through GLOBAL MEDIATION:
T: 0800 064 4488
P: GLOBAL MEDIATION LTD, 42 Lytton Road, Barnet EN55BY
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 about:
- a decision by a local authority not to carry out an EHC needs assessment or re-assessment. 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
- 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 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. 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.
Young people can register an appeal in their name and can also have their parents’ help and support if needed.
Parents and young people have two months to register an SEN appeal with the Tribunal, from the date when the local authority send the notice containing a decision which can be appealed or one month from the date of a certificate which has been issued following mediation or the parent or young person being given mediation information, whichever is the later. (See above for mediation details.)
In some cases parents and young people will not register the appeal within the two-month limit. Where it is fair and just to do so the Tribunal has the power to use its discretion to accept appeals outside the two-month time limit.
The Tribunal will not take account of the fact that mediation has taken place, or has not been taken up, nor will it take into account the outcome of any mediation.
Parents and young people will not be disadvantaged at the Tribunal because they have chosen not to go to mediation.
The Tribunal forms part of the First-tier Tribunal (Health, Education and Social Care Chamber). Tribunals are overseen by Her Majesty’s Courts and Tribunals Service.
The Tribunal hears appeals against decisions made by the local authorities in England in relation to children's and young people’s EHC needs assessments and EHC plans. The parent or young person can appeal to the Tribunal when the EHC plan is initially finalised, or following an amendment or a replacement of the plan.
The Tribunal does not hear appeals about Personal Budgets, however it will hear appeals about the special educational provision to which a Personal Budget may apply.It also hears disability discrimination claims against schools and against local authorities when the local authority is the responsible body for a school. The mediation advice arrangements do not apply to disability discrimination claims.
The Tribunal seeks to ensure that the process of appealing is as user friendly as possible, and seeks to avoid hearings that are overly legalistic or technical. It is the Tribunal’s aim to ensure that a parent or young person should not need to engage legal representation when appealing a decision. Parents and young people may find it helpful to have support from a voluntary organisation such as our service, Portsmouth Information, Advice and Support Service, or from a friend at the hearing.
When appealing to the Tribunal parents and young people must supply a copy of the decision that they are appealing against and the date when the local authority’s decision was made, or the date of the mediation certificate. The parent or young person who is appealing (the appellant) will be required to give the reasons why they are appealing. The reasons do not have to be lengthy or written in legal language but should explain why the appellant disagrees with the decision. Parents and young people have to send all relevant documents, such as copies of assessments, to the Tribunal.
Once the appeal is registered the local authority will be sent a copy of the papers filed and will be given a date by which they must respond and asked to provide details of witnesses – this will apply to all parties. The parties will also be told of the approximate hearing date. Hearings are heard throughout the country at Her Majesty's Courts and Tribunals Service buildings. The Tribunal will try to hold hearings as close to where the appellant lives as possible. Appeals are heard by a judge and a panel of Tribunal members who have been appointed because of their knowledge and experience of children and young people with SEN or disabilities. The local authority will provide a bundle of papers for each of the panel members and the parent, including any document requested by the parent.
The Tribunal has prescribed powers under the Children and Families Act 2014 to make certain decisions in relation to appeals. The Tribunal can dismiss the appeal, order the local authority to carry out an assessment, or to make and maintain an EHC plan, or to maintain a plan with amendments. The Tribunal can also order the local authority to reconsider or correct a weakness in the plan, for example, where necessary information is missing. Local authorities have time limits within which to comply with decisions of the Tribunal.
In making decisions about whether the special educational provision specified in the EHC plan is appropriate, the Tribunal should take into account the education and training outcomes specified in Section E of the EHC plan and whether the special educational provision will enable the child or young person to make progress towards their education and training outcomes. The Tribunal can consider whether the education and training outcomes specified are sufficiently ambitious for the child or young person. When the Tribunal orders the local authority to reconsider the special educational provision in an EHC plan, the local authority should also review whether the outcomes remain appropriate.
The young person or parent making the appeal and the local authority should both receive a copy of the Tribunal's decision and reasons by post within 10 working days of the hearing. Along with the decision notice the Tribunal will send a leaflet which will explain the application process for permission to appeal the Tribunal decision to the Upper Tribunal, if the appellant considers that the decision made was wrong in law. Local authorities can also appeal to the Upper Tribunal on the same grounds.
Advice on making SEN appeals to the Tribunal is available from the Ministry of Justice website Appeal to the Tribunal
The Tribunal can be contacted at:
First-tier Tribunal (Special Educational Needs and Disability)
Darlington Magistrates Court
Phone: 01325 289350
More information on resolving disagreements can be found in:
Code of Practice Page 244, Chapter 11.