Challenging or disagreeing with decisions

You may not always agree with a decision your child’s early years setting, school or college has made about your child’s support. You should first raise this with them and try to reach agreement. If you can’t reach agreement, they can advise you on their procedures for making complaints.

Every Council must make arrangements for both disagreement resolution and mediation services to be available. These services are independent of your local authority and can provide you with a quick and informal way of resolving disagreements.  Tameside works with the Together Trust to provide SEND Disagreement and Mediation Services.

Disagreement resolution

Disagreement resolution services are for all parents of children and young people with SEN, and young people themselves with SEN. Using the service is voluntary and covers SEN provision as well as disagreements about health and social care.

There are three areas of disagreement that this service can help with:

• If you disagree with your Council, your school, early years setting or college about how they are carrying out their education, health and care duties. This applies if your child has any kind of SEN – it’s not just if they are going through EHC needs assessment or if they have an EHC plan.
• If you disagree with your early years settings, school or college about the SEN provision they are making. This applies if your child has any kind of SEN – it’s not just if they are going through an EHC needs assessment or if they have an EHC plan
• If you disagree with your Council or Clinical Commissioning Group (CCG) about the health or social care provision during your child’s EHC needs assessment, or about their EHC plan, and any review or reassessment of the EHC plan.

Mediation

Mediation is also a voluntary process for parents and young people, which you can use if you cannot reach an agreement with the Council or CCG in matters relating to EHC plans. The Council has made an independent mediation service available to you through the Together Trust. It only covers disagreements you might have in the following circumstances, where the Council has decided:

• not to carry out an EHC needs assessment or re-assessment of 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

Where the Council has drawn up an EHC plan for your child, mediation must be available if you disagree with:

• the parts of the plan which describe a child’s special educational needs
• the special educational provision set out in the plan

The Council must provide you with access to an independent mediation adviser who you will need to contact for information about mediation if you are thinking about appealing to the SEND Tribunal.

For further details on these services, please contact our Special Educational Needs Team on 0161 342 4433 who will be happy to help.

If you decide to go to a mediation meeting, the mediation adviser will inform the Council who must meet you within 30 days.

The mediation session will be run by an independent mediator who should have accredited training. It should be at a place and time that is convenient for you, and you will be told when and where the meeting will be at least 5 days before it happens. You can bring a friend, adviser or advocate to help you. When the mediation has finished the mediation adviser must issue a certificate within 3 working days. You will need this certificate to register an appeal to the SEND Tribunal.

If, once you have contacted a mediation adviser, you decide that you do not want to go to mediation, the adviser will issue you with a certificate within 3 working days. You can also go to mediation with your local authority or your local CCG about the social care and health parts of an EHC plan if you tell your local authority that you are unhappy with these parts of the plan.

Appealing to the Special Educational Needs and Disability (SEND) Tribunal

Before you can appeal to the SEND Tribunal, you must have contacted a mediation adviser (unless your appeal is only about the school the Council has named in your child’s plan or if they have not named a school in it). You will need a certificate from the mediation adviser to register an appeal with the SEND Tribunal. You have one month from receiving the certificate or two months from the original decision (whichever is the later date) to register an appeal with the Tribunal.

The SEND Tribunal is a legal body. It hears appeals against decisions made by local authorities about EHC needs assessments and EHC plans. You can appeal to the Tribunal if the Council 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 Council 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 school (or other educational establishment) your local authority says your child should attend, or if they don’t include a school
• if they change any of these details without your agreement

The SEND Tribunal also hears disability discrimination claims against schools (and against local authorities if the local authority is responsible for the school).

For further details on these services, please contact our Special Educational Needs Team on 0161 342 4433 who will be happy to help.

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.

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 EHCplan
• 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/youngperson who has an EHC plan
• a decision by the local authority not to amend an EHC plan following a review orre-assessment
• a decision by the local authority to cease to maintain an EHC plan

What does this mean for Tameside ?

The Trial places responsibility on the local authority SEND team 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 Tameside 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 the 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
• 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.