Coming to an agreement
When other people are involved in the process of making decisions about the future of your child, there may be times that you might disagree. The first step to resolving any disagreement is to talk to the other party, explain your concerns and see if you can come to an agreement. If after a meeting, your concerns have not been resolved, you may want to consider other ways forward to resolve the situation.
Mediation is a less formal way of trying to settle the dispute between you and the Local Authority (LA). It involves a meeting between you, the LA and an independent mediator, who will try to help you reach agreement on the points of dispute.
The mediation may also be attended by other relevant parties such as representatives from the child or young person’s school or college. It is free of charge. The LA must provide you with information about independent mediation, you will find this information on your decision letter from the LA.
If you attend mediation and reach an agreement you must ensure that you get their agreement in writing, setting out clearly what they have agreed to do. Regulations 42 and 44 of the Special Educational Needs and Disability Regulations 2014 set out certain timescales that an LA must stick to after a mediation, if they have agreed:
- to carry out an EHC needs assessment: the LA must notify the parent or young person that it is starting within 2 weeks, then either let the parent or young person know they have decided not to issue an EHC plan within 10 weeks, or send a finalised EHC plan within 14 weeks
- to issue an EHC plan: the LA must issue the draft plan within 5 weeks and the finalised EHC plan within 11weeks
- to change the name of a school in an EHC plan: the LA must issue the amended EHC Plan within 2 weeks
- to amend an EHC plan: the LA must issue the amended EHC Plan within 5 weeks
In most cases you will need a mediation certificate before you can appeal to the SEND tribunal.
You can get this in two ways:
- undertake mediation, and if it does not settle all of the points in dispute, you will be issued with a certificate confirming you took part in mediation; or
- speak to a mediation advisor, and you will be issued with a certificate confirming you have been told about your right to mediate but you do not want to do so.
The SEND Tribunal (link opens in a new window) is a legal body. It hears appeals against decisions made by local authorities about Education, Health and Care (EHC) needs assessments and EHC plans. You can appeal to the Tribunal if the Local Authority decides:
- not to carry out an EHC needs assessment or re-assessment for your child
- not to draw up an EHC plan for your child, once they have done an assessment
- not to amend your child’s EHC plan after the annual review or re-assessment
- to cease to maintain your child’s EHC plan
You can also appeal if you disagree with what the Local Authority includes in your child’s EHC plan such as:
- how they describe your child’s SEN
- what SEN provision is included for your child
The SEND Tribunal also hears disability discrimination claims against schools (and against local authorities if the local authority is responsible for the school).
You could be entitled to legal aid (link opens in a new window) to pay for a meeting with a solicitor.
Single Route of Redress - National Trial
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 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.
The SEND Tribunal produces a free booklet, How to Appeal, and other guidance forms (link opens in a new window).
The SEND Tribunal have also produced a set of videos which explain more about what appealing to the SEND Tribunal is like. These SEND Tribunal videos are available on YouTube (link opens in a new window) or you can request a DVD from the SEND Tribunal.
Contact SENDIASS to talk to one of our advisers: