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Resolving Disagreements, Mediation, Tribunals and Appeals

 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’ and this includes their extended rights as part of the single route of redress national trial. The following information on the national trial, to supplement the information that must already be published on the right to appeal a decision of the local authority, has been included below to support local authorities in fulfilling this duty.

Single Route of Redress – National Trial

What is the 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. 

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).

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:

  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
  3. If a recommendation has been made, send the health and social care response letters to the evaluators at SENDletters@IFFResearch.com.

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 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.

Taking part in the evaluation

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. The evaluation will run alongside the trial, from January 2018 to March 2021.

It is important that the evaluation is based on robust evidence, and the evaluators are therefore strongly encouraging participation from parents and young people. This could include taking part in a telephone or online interview just after the appeal hearing (or when the appeal process has been completed, if earlier), and then a follow-up interview 6 months later. These interviews will help the evaluators to gather the views of parents and young people on the appeal process, as well as identify how recommendations have been implemented and what the (early) impact has been. 

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.

As a parent or young person, do I have to consider mediation as part of the trial?

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

  • A guidance document on the national trial is published as part of a toolkit of support
  • sendiass@stockton.gov.uk
  • The evaluation of the trial is led by IFF Research working with Belmana. For any questions or to get involved please get in touch with them at SENDtrial@IFFResearch.com, freephone: 0800 035 6051.

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 decision 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.
  • LAs 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 (LA) 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.
  • Independent disagreement resolution services are available to parents and young people in Stockton-on-Tees via Chapel Mediation Service. You can contact the service direct by telephoning 01833 630306.
  • Use of this service is voluntary and by agreement of all parties.
  • This service covers all children and young people with SEN, not only those with EHC assessments or plans but also children and young people who are identified as having additional educational needs.
  • Parents and young people can also use complaints procedures in addition, instead of, or in addition to disagreement resolution.

Mediation

  • Disagreement Resolution arrangements and Mediation are different processes.
  • Mediation arrangements are specifically linked to decisions about EHC assessments and plans.
  • The Mediation Service must be independent of LAs and health commissioners and provided by trained mediators.
  • Mediation service is available to parents, children and young people in Stockton-on-Tees via Chapel Mediation Service.  You can contact the service direct by telephoning 01833 630306.
  • 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 LA must take part if requested by the parent or young person and must attend the mediation session.
  • The LA or health commissioner must take part in mediation and must pay reasonable expenses of the parent or young person to attend.
  • Once completed the mediation adviser will issue a certificate to the parent or young person stating the mediation has taken place, which must be sent to the Tribunal if they still wish to register their appeal (within time limits).
  • The SEND regulations 2014 sets out time limits for LAs to implement agreements made at mediation.
  • Where there is disagreement about more than one element of an EHC plan, mediation should not be arranged until the parent or young person has decided if they wish mediation to cover the educational element only, or all areas of disagreement.

Registering an appeal with the Tribunal

  • Parents and young people have two months to register an SEN appeal from the date the LA 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.
  • Parents and young people (16 years plus) can appeal about EHC needs assessments and the educational content of an EHC plan.
  • 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 plana 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 can decide to dismiss the appeal, order the LA to carry out an assessment or make or maintain a plan. They can also order amendments to a plan or correct a weakness (e.g. missing information).


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 six 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 details can be found in the Special Educational Needs Code of Practice, Chapter 11, which can be downloaded at www.gov.uk

Appeal Timeline

  • You will receive a decision letter from your 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 [not include Sat/Sun, all of August, bank holidays and between 25th December –1st January]
  • Tribunal responds to you and provides you with dates
  • Tribunal also writes to the LA, sending a copy of all your appeal documents
  • The LA 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 LA.
  • At least ten days [working days] prior to considering your appeal and making the decision, the Tribunal will send you and the LA a page-numbered set of documents [bundle] that they received regarding the case
  • Generally you will receive the decision and reason in writing within ten days [working days]
  • The LA has four 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

Impartial information, advice and support is available, contact: Special Educational Needs and Disabilities, Information, Advice and Support Officers at:

SENDIASS@stockton.gov.uk and/or by telephone on 01642 527158

How to appeal SEND25

 

 

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