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 (EHC) plans.

Disagreement resolution services can be used to try to resolve other issues related 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 Tribunal (special educational needs and disability), also known as the First-tier Tribunal (SEND). We’ll explain more about what this is further down.
 

Mediation

When the local authority (LA) informs you of a decision which can be appealed to the First-tier Tribunal (SEND), they’ll 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 LA 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, and any meeting, is run and facilitated by an independent third party. It enables you and the LA to discuss, in an informal and confidential setting, any aspects of the LA’s decision and/or the contents of an EHC plan, including the health and social care sections.

Before you appeal an EHC plan decision, you must consider using 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 by phone. You can then decide whether or not to go to mediation.

Using the mediation service, and attending a mediation meeting, is voluntary for all parties. What you decide will not affect your right to appeal to tribunal.

If you decide to go ahead, the mediation service will arrange a 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 mediation 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’ll need to send this certificate to the tribunal if you decide to appeal.
 

Disagreement resolution

Disagreement resolution aims to help parents resolve certain disagreements, through discussion. The disagreement might be with your child’s school, LA or others.

Disagreement resolution arrangements cover all children and young people with SEN. Your LA must make independent disagreement resolution services available to you. It should also 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’s dispute between you and:

• your LA, the governors of your child’s maintained early years setting/nursery/school/college, or the proprietor of your child’s academy/free school, about how they’re carrying out their SEN duties
• your child’s early years setting/nursery/school or post-16 education setting about the special educational provision being made for your child.

What is the First-tier Tribunal (SEND)?

The First-tier Tribunal (SEND) 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, please read our guide on how to appeal if your child’s been excluded from school.
 

What decisions can I appeal?

The tribunal hears disputes brought under the Children’s and Families Act. You can appeal against the LA if they:

• refuse to carry out an EHC needs assessment or re-assessment
• refuse to issue an EHC plan (often referred to simply as 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 such as:

• the description of your child’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’ve visited/spoken with a mediator, within one month of the date of the mediation certificate, whichever date is later.

If you’ve missed your deadline, you’ll need to explain the reasons for this on the appeal form. The tribunal has produced two different appeal forms depending on what you’re appealing.

For appeals against a refusal to carry out an EHC needs assessment or re-assessment, you should use form SEND35a. For all other types of appeal, you should use form SEND35.

When sending the form, you need to include the following:

• the decision letter from the LA
• the mediation certificate
• a copy of the EHC plan, if there is one
• appendix K of the EHC plan (the reports gathered during the needs assessment).

If you’re appealing against a decision issued to a young person who’s over 18, it’s important that they agree with the grounds on which you’re appealing. The only exception would be if they don’t have the mental capacity to consider such a decision.

Read more about appealing an education, health and care plan decision.

When the tribunal receives your appeal form, they’ll check and register it, then send you a registration document and appeal number within 10 days. If you’ve missed any essential information, they’ll contact you.

The registration document will give you some important deadline dates that you need to stick to. These are dates:

• for you to inform the tribunal of any witnesses you want 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, it will go to an appeal hearing.
 

Extended appeals

If a parent or young person lodges an appeal on any of the grounds above (except for an appeal against a refusal to carry out an EHC needs assessment) then they now have the additional right to request that the tribunal judge makes a non-legally binding recommendation relating to the health and social care provision detailed in parts D and H of the existing EHC plan or in any future plan in the case of a refusal to order an EHCP type appeal.

This could be to include new provisions or amend the existing provisions. The recommendation could for example be that a certain amount of time each week is required with a support worker to help a child or young person access the community or that a wheelchair is provided by the local health authority.

Any recommendation made by the tribunal is not binding on the health authority or the local authority but there is a strong expectation that they will comply with the recommendation and they will need to give good reasons to explain any failure to do so.  The Local Government Ombudsman can investigate any failures to comply with tribunal recommendations. 

If you want to read more, visit SEND Tribunal: single route of redress national trial 
 

Appeal hearing witnesses

A witness is someone that you feel can help support your case at the tribunal by giving spoken evidence about your child’s SEN and the provision they need. This would normally be a professional involved with your child. You’re allowed three witnesses, although a fourth can be requested by writing to the tribunal. For this, you’ll need to fill in a request for change form.

The LA will normally bring two or three witnesses to comment on your child’s SEN. While these are formally the LA’s witnesses, it’s their duty to give the tribunal current and accurate information about your child’s needs. Therefore, they can also be helpful to your case. If there’s someone who’s not attending on behalf of the LA, but you think would help your case, 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’s also a good idea to ask any independent experts who’ve submitted reports about your child as part of the EHCP or tribunal process, to attend 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 one of two types of hearing. One is where you and the LA attend in person. The other is where you 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 EHC needs assessment. This type of appeal is routinely dealt with in writing, unless you specifically request a hearing in person.

Your child isn’t expected to attend the hearing, but they can if they want to express their views.

The panel will usually have read all of the appeal paperwork and be familiar with the case before the day of the tribunal hearing.

The hearing will give you the chance to put your views across and call your witnesses. It will also give you the opportunity to question the LA‘s witnesses. You’ll then have the chance to present a summary of your case, as will the LA. The panel will usually have their own questions as well.
 

The tribunal’s decision

The tribunal will look at all the information and evidence and make their decision. They’ll write out their reasons for this in a document called the 'determination'. This is usually 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 decision, they’ll have strict timescales in which to carry them out.
 

What if I disagree with the decision?

You can’t challenge the tribunal’s decision simply on the grounds that you disagree with it. However, there are limited circumstances in which you can either ask the tribunal to review the decision or appeal to the upper tribunal.

Overturning a tribunal decision is difficult and only happens in a few circumstances. We advise that you seek legal advice from a solicitor who specialises in education law 

Read more about what to do if you lose an appeal.
 

What if the LA hasn’t implemented the 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 and Social Care Ombudsman. 
 

Useful contacts

First-tier Tribunal (SEND)

Local Information, Advice and Support Services should be able to provide independent support with your tribunal preparation.

Legal help may also be available. You can also visit our Autism Services Directory to search for solicitors who specialise in education law.