Here we look at disagreement resolution and mediation services. While ‘mediation’ and ‘disagreement resolution’ are often used interchangeably, under the Children and Families Act 2014 they refer to different processes.
Mediation is specifically linked to decisions about education, health and care needs assessments and education, health and care plans, while disagreement resolution services can be used to try to resolve other issues in relation to a child’s special educational needs (SEN).
If either of these fail to resolve a difference, parents are able to challenge decisions using The First Tier Special Educational Needs and Disability Tribunal (also known as SEND).
Mediation is an informal, non-legalistic and accessible disagreement settlement process run by a trained third party (facilitator). It is designed to bring two parties together to clarify issues and reach a resolution.
When the LA sends you notice of a decision which can be appealed to the First tier Tribunal (SEND), they will tell you about your right to go to mediation and that you must contact a mediation adviser before registering your appeal. The letter should:
- include contact details of a mediation adviser
- give timescales for requesting mediation
- include contact details of any person acting on behalf of the local authority who you can get in touch with if you want to take part in mediation
- make clear that your right to appeal is not affected by entering into mediation.
There are two reasons for going to mediation, you want to:
- go to mediation before registering an appeal
- mediate about the health and social care elements of your child’s EHC plan.
Before you appeal an EHCP decision, you must consider mediation as a less formal way of looking for a solution.
Disagreement resolution aims to help parents resolve certain disagreements, through discussion. The disagreement might be with your child’s school, local authority (LA) or others.
Under the 2014 Act, disagreement resolution arrangements cover all children and young people with SEN. Your LA must make independent disagreement resolution services available to you.
Disagreement resolution services should be free, confidential, impartial and easily accessible. There will be a facilitator who should:
- be independent of the LA
- have skills, knowledge and expertise in disagreement resolution
- have an understanding of SEN processes, procedures and legislation
- make sure that each person has a chance to explain their concerns and have their views heard
- have no role in the decisions taken
- have no vested interest in the outcome.
Types of disagreement
Disagreement resolution services can help you to resolve three types of disagreements. These are where there is dispute between you and:
- your LA, the governing body of your child’s maintained early years setting, nursery, school or college, or the proprietor of the academy or free school your child attends, about how they are carrying out their education, health and care duties
- your child’s early years setting, nursery, school or post-16 education setting about the special educational provision being made for your child
- the Clinical Commissioning Group, or your LA, about health or social care provision for your child either during an education, health and care needs assessment or while an Education, Health and Care (EHC) plan is being drawn up, reviewed or when your child is being reassessed.
Disagreement resolution services will also be available for LAs and health commissioning bodies during any part of the legal process for identifying education, health and care needs. These disagreements will not involve parents and young people.
Using disagreement resolution services
Using the disagreement resolution service, and attending a disagreement resolution meeting is voluntary for all parties. Your decision does not affect your right to appeal to The First tier Tribunal for Special Educational Needs and Disability (SEND).
Disagreement resolution meetings are confidential and the tribunal will disregard any offers or comments made during them.
Partial agreement achieved by use of disagreement resolution services can mean that the remaining areas of disagreement can be focused on if an appeal still takes place.
Read more about mediation and disagreement resolution.
What decisions can I appeal?
The tribunal hears disputes brought under the Children’s and Families Act 2014 that came into force on 1 September 2014.
You can appeal against the LA if they:
- refuse to carry out an Education Health and Care Plan (often referred to simply as a ‘plan’) assessment or re-assessment
- refuse to issue a plan after an assessment
- decide to stop a plan
- refuse to amend a plan following an annual review.
You can also appeal against the contents of a plan (eg the description of the child or young person’s SEN, the provision specified, the school or institution named or the fact that no school or institution is named).
The tribunal also still hears disputes against local authorities that are brought under the Education Act 1996, such as:
- whether to issue a statement where the request for a statutory assessment was lodged prior to 1 September 2014
- the contents of a statement where it hasn’t been converted into a plan
- the decision to stop a statement
- the refusal to amend a statement following an annual review.
How do I appeal to the tribunal?
From 1 September 2014, the new system relating to the Children and Families Act 2014 and the system associated with the Education Act 1996 will run alongside each other. This transitional period will last until April 2018.
The tribunal have produced different documents to be used depending on which system the application is being made under. It’s important that you are clear which system of law you are using.
Appeals under the system for Education, Health and Care Plans
EHCP appeal deadline
The appeal has to be lodged within two months of the decision letter or, if you visited a mediator, within one month of the date of the mediation certificate. Whichever date is later. If you have missed your deadline contact the tribunal for advice.
EHCP appeal forms
The tribunal has produced two different appeal forms depending on the age of the child or young person.
If the child is 16 years and under, only parents or someone with parental responsibility can appeal. They should use form SEND24.
Young people over 16 years can appeal themselves using form SEND 24a. They have the option to ask a parent/carer or representative to help.
If you need help completing forms, please contact our Tribunal Support Line for England on 0808 800 4102 (press option 2).
Information to be sent with an EHCP appeal form
When sending the form, you need to include the following:
- decision letter from the LA
- mediation certificate
- copy of the plan, if there is one
- Appendix K of the plan (the reports gathered during the education, health and care needs assessment).
Read more about appealing an education, health and care plan decision
Appeals under the system for Statements of Special Educational Needs
Under this system, only parents and carers can appeal on behalf of a child or young person.
Statement of SEN appeal deadline
The appeal has to be lodged within two months of the date of the letter from the LA giving the decision that you wish to appeal against. If you have missed your deadline contact the tribunal for advice.
Statement of SEN appeal form
To start the appeal process, you need to complete and submit a SEND 1A
form. You should also send:
- decision letter from the LA
- copy of statement and appendices (reports) where one exists, or note in lieu and appendices.
The statement of SEN appeal process
When they receive your appeal the tribunal will check and register it, sending you a registration document and appeal number within 10 days. If they feel that you have omitted relevant information, they will contact you.
The registration document will give you some important deadline dates that are not to be missed. These are the date are:
- for you to inform the tribunal of any witnesses you wish to bring
- for the LA to respond to your appeal
- for which you can provide the tribunal with any further evidence
- of the scheduled appeal.
The LA will then be sent a copy of your appeal form and documentation and have 30 days to respond to you and the tribunal.
They may either reassess their decision or oppose your appeal. They should explain their reasons for opposing it in their response to the tribunal.
The statement of SEN appeal hearing
You can choose to have either an appeal hearing, or ask for the case to be considered on your written information only.
Even though it can be daunting, we suggest that you do ask for a hearing, it’s an opportunity for you to present your arguments and for the judge to seek clarification from you. The child or young person can attend the hearing if they want to express their views, but they aren’t expected to attend.
The panel will usually have read all of the appeal paperwork and be familiar with the case before the day of the tribunal.
The hearing will you the chance to put your views across and call your witnesses. It will also give you the opportunity to ask the LA‘s witnesses any questions. You then have the chance to present a summary of your case.
The LA will do the same and the panel will usually have their own questions.
Statement of SEN appeal hearing witnesses
You are allowed three witnesses, although a fourth witness can be requested on the attendance form
or by writing to the LA.
The LA will normally bring along two or three witnesses who can comment on a child or young person’s SEN. Whilst these are formally the LA’s witnesses, they need to give current and accurate the child’s needs to the tribunal. Sometimes, they can also be helpful to your case.
If you feel someone who would be helpful to your case who is not attending on behalf of the LA you can ask them to be your witness. They may have reservations about this or refuse. In this case, you can complete a request for change form
stating why you would like them to attend and they may then be issued a summons.
It is also a good idea to ask any independent experts that have submitted reports about your child to attend the tribunal as a witness. Your witnesses may find it useful to read Guidance for Expert Witnesses Giving Evidence in Special Educational Needs Appeals and Disability Discrimination Claims Hearings
The statement of SEN tribunal’s decision
The tribunal will look at all the information and evidence and make their decision. They will write out their reasons for this in a document called the 'determination'. This should normally be issued within 10 working days of the hearing.
The determination will detail the different views the panel heard from each side and give a summary of the evidence they were presented with. It should give a full explanation of how and why the panel arrived at their decision
If the LA has been ordered to carry out certain actions as a result of the tribunal decision they will have strict timescales in which to carry them out.
Disagreeing with the tribunal’s decision about a statement of SEN
You can’t challenge the tribunal’s decision on the grounds that you disagree with it.
However, there are circumstances in which you can ask the tribunal to review the decision or appeal to the upper tribunal.
Overturning a tribunal decision is difficult and happens in limited circumstances. We advise that you seek legal advice from a solicitor specialising in education law or contact our Tribunal Support Line for further advice on 0808 800 4102 (select option 2).
Read more about what to do if you lose an appeal.
What to do if the LA has not implemented a statement of SEN tribunal’s decision
The tribunal’s decision is legally binding and the LA must follow it. If they don’t, you can contact the Local Government Ombudsman.
You may also want to contact our Education Advice Line for information and advice – 0808 800 4102 (press option 1).
Further help from our charity
The National Autistic Society’s Education Rights Service
has a Tribunal Support Line that can help you consider your options if you have a right of appeal and can offer ongoing support.
First-tier Tribunal (Special Educational Needs and Disability)
Local Information, Advice and Support Services
should be able to provide independent support to assist you in tribunal preparation.
Civil Legal Advice (CLA)
Tel: 0345 345 4 345
Douglas Silas Solicitors
Tel: 020 8349 7700
Tel: 0808 129 3320
Last reviewed: 16 November 2016.