Here we look at mediation and disagreement resolution services in England. 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 (EHCP), while disagreement resolution services can be used to try to resolve other issues in relation to your child’s special educational needs (SEN).

If either of these fail to resolve a difference, we explain how you can challenge decisions using the First Tier Special Educational Needs and Disability Tribunal (also known as the First-tier (SEND) Tribunal.

Mediation

Mediation is an informal, confidential and voluntary disagreement settlement process run by an independent third party (facilitator). It is designed to bring two parties together to clarify issues and help settle disagreements.

When the local authority (LA) sends you a 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.  

Mediation enables you and the local authority to discuss in an informal setting any aspects of the local authority’s decision and or the contents of an EHCP, including the health and social care sections. Before you appeal an EHCP decision, you must consider mediation as a less formal way of looking for a solution.

Using mediation services

The mediation service will offer information and advice about the process, usually during a phone call.  After you have received information about the process, you can decide whether or not to go to mediation.  

Using the mediation service, and attending a mediation meeting is voluntary for all parties. Your decision does not affect your right to appeal to The First-tier (SEND) Tribunal.

If you decide to go ahead, the mediation service will arrange a mediation meeting between you and your LA. Mediation meetings are confidential and the tribunal will disregard any offers or comments made during them.  After the meeting, the mediation service will issue you with a ‘mediation certificate’ within three working days, which confirms that mediation has concluded.

Partial agreement achieved by use of mediation services can mean that the remaining areas of disagreement can be focused on if an appeal still takes place.

If you decide not to mediate, the service will issue you with a ‘mediation certificate’ within three working days.  You will need to send this certificate to the First-tier (SEND) Tribunal if you decide to lodge an appeal.

Disagreement resolution

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 two 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

First Tier Special Educational Needs and Disability Tribunal (SEND)

First-tier (SEND) Tribunal is a legal forum in England which hears certain disputes that parents and/or children and young people have with their LA.

Please note that this page does not discuss disability discrimination claims to the tribunal. If you want to make a disability discrimination claim then please read our guide to Navigating exclusion appeals to the First-tier (SEND) tribunal.

What decisions can I appeal?

The tribunal hears disputes brought under the Children’s and Families Act 2014. 

You can appeal against the LA if they:

  • refuse to carry out an EHCP (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, for example:

  • the description of the child or young person’s SEN
  • the provision specified
  • the school or institution named
  • the fact that no school or institution is named. 

How do I appeal to the tribunal?

The appeal has to be lodged within two months of the decision letter or, if you have visited/spoken with 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.

The tribunal has produced two different appeal forms depending on what you are appealing. 

For appeals against a refusal to carry out an Education Health and Care Plan needs assessment or re-assessment, you should use form SEND35a.

For all other types of appeals, you should use form SEND35.

If you need help completing forms, please contact our Tribunal Support Line for England on 0808 800 4102 (press option 2).

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

When the tribunal receive your appeal form they will check and register it, sending you a registration document and appeal number within 10 days. If you have missed essential information, they will contact you.

The registration document will give you some important deadline dates that are not to be missed. These are dates:

  • for you to inform the tribunal of any witnesses you wish to bring
  • for the LA to respond to your appeal
  • by which final evidence must be submitted
  • of the scheduled appeal. 

The LA will then be sent a copy of your appeal form and documentation and will have 30 days to respond to you. They may either reassess their decision or oppose your appeal. They should explain their reasons for opposing it in their response to the tribunal.

If they oppose your appeal, then it will go to an appeal hearing.

The National Trial

The National Trial is a pilot scheme during which the tribunal will be able to make decisions relating to health and social care, as well as education. The National Trial began in April 2018 and will close in April 2020. 

During this period parents or young people can ask the tribunal to make recommendations on the health and social care sections of an EHCP, as well as the educational sections. For example, a parent could ask the tribunal for a recommendation that social services provide four hours a week respite for their child.

Such recommendations will not be legally binding on a local authority or health authority, but there would be a strong expectation that recommendations are followed. If they are not, there is further help available from the Ombudsman. Further information is available in the National Trial guidance

Appeal hearing witnesses

A witness is someone that you feel can help support your case at tribunal by giving spoken evidence about your child’s special educational needs and the provision they require. This would normally be a professional involved with your child. 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 your child’s SEN. Whilst these are formally the LA’s witnesses, their duty is to  give current and accurate information about your child’s needs to the tribunal. Therefore, they can also be helpful to your case. 

If you feel someone who would be helpful to your case 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 - they may then be issued a summons to attend. 

It is also a good idea to ask any independent experts that have submitted reports about your child as part of the EHCP or tribunal process, to attend the tribunal as a witness. Your witnesses may find it useful to read SEND Tribunal: if you’re asked to be a witness.

The appeal hearing

For most types of appeal you can choose to have an appeal hearing in which you and the LA attend in person, or you can ask for the case to be considered on your written information only. The only exception is an appeal against the LA’s refusal to carry out an EHCP assessment. This type of appeal will routinely be dealt with using written information only, unless you specifically request a hearing in person.  

Your child 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 give 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.

The 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

You can’t challenge the tribunal’s decision on the grounds that you disagree with it.

However, there are limited 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 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.

Useful contacts

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

Simpson Miller 

Tel: 0808 129 3320

Last reviewed: 12 February 2019.