Resolving disagreements, Mediation and Complaints
There are two main types of dispute resolution, disagreement resolution which is voluntary for the Local Authority to enter into and mediation which is compulsory for the Local Authority to enter into.
Access to disagreement resolution (DR) covers all children and young people with SEND – whether or not they have an Education, Health and Care Plan (EHC Plan).
However, the other party or parties involved in the disagreement have to agree to take part before it can take place. This process is slightly more informal than mediation and can be a good way to quickly resolve disagreements.
DR is for these types of disputes:
- How LA’s or education providers (early years, schools, colleges) carry out their education, health and care duties for children or young people with SEND.
- About the SEND provision made by education providers
- About health and social care provision during all the stages of the EHC plan process.
- Disagreement Resolution can also be used to resolve school exclusions involving children or young people with SEND.
Mediation was introduced in September 2014 as part of the Children and Families Act 2014 and whilst a mediation does not need to be attended, if a parent or young person wishes to appeal against a decision to a SEND tribunal they must first consider mediation and get a mediation certificate from the local mediation service. The only exception to this is where the appeal is only about part I of the an EHC plan – the setting named, where mediation does not need to be considered and an appeal can be made straight to the tribunal, however a disagreement resolution can still be held in relation to section i.
A parent or young person can appeal to the SEND tribunal with regards to an EHC plan if the Local Authority does any of the following:
- Refuses to secure an EHC needs assessment of the child’s special educational needs, following a request by the parents or school
- Refuses to secure an EHC plan, after concluding an EHC needs assessment
- Refuses to arrange a reassessment of the child’s special educational needs (following a request by the parent or school) if the Local Authority has not made an assessment for at least six months
- Decides to stop maintaining the child’s EHC plan
- Decides not to replace or amend the EHC plan following a review
- Decides not to change the EHC plan after reassessing the child; or Has made an EHC plan or has amended or replaced a previous EHC plan and you disagree with one or all of the following, section B the child’s special educational needs, section F which sets out the special educational provision (help) that the Local Authority thinks the child should receive, the school or type of school named in the EHC plan.
From April 2018, parents and young people will also have the right to appeal against the health and social care sections of the plan (Sections C, D, G and H).
Prior to logging a tribunal a parent or young person must consider mediation, this does not mean that they have to take part in mediation, just that they must consider this. The mediator must be impartial and cannot be a Local Authority employee, within North Lincolnshire an independent company called Community Accord is used.
Once a parent or young person has notified the Local Authority that they wish to enter into mediation, the Local Authority has 30 calendar days to arrange this. If the Local Authority is not able to arrange this within 30 calendar days the mediator will issue a mediation certificate to the parent or young person, thus allowing them to register the appeal.
Once mediation has been arranged the mediator will arrange to meet with all of the parties individually in order to gather information and views. What is discussed during these meetings is confidential and the mediator will not make reference to anything they have been told during the formal mediation meeting. It is not the role of the mediator to make any decisions during the meeting, their role is to facilitate decision between the different parties, and any agreements made during the mediation must be made by the parties involved.
What happens after the mediation
If the mediation is successful the results will be entered into a mediation agreement.
If the mediation is not successful then the parent or young person will be issued with a mediation certificate and they can then log the appeal. However, during the appeal anything that was discussed during mediation cannot be used as mediation is confidential. Therefore if during mediation partial agreement was made between parties this will not be considered and the tribunal ruling will over rule this.
Single Route of Redress
What is the Single Route of 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 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.
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. This trial now gives you the opportunity to also request recommendations about the health and social care content of the plan at the same time. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.
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 Trial places responsibility on local authority SEND teams to:
- Inform parents and young people of their new 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
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/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 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 and the appeal form is available on the GOV.UK website and further guidance can be found in the trial toolkit of support.