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Mediation and SEND tribunals

Decisions about provision for children and young people with special educational needs and disabilities should be made jointly by providers, parents, children and young people themselves.

Decisions will be made keeping the views of children, young people and parents in mind. 

 

Being involved in the decision making

Relations between education, health, social care and parents and young people should be marked by open communication so that:

  • Parents and young people know where they are in the decision-making process.
      
  • Their knowledge and experience can be used to support good decision-making.
      
  • They know the reasons why decisions have been made. 

Parents and young people should be given information and support so that they can take part in decision-making and complaints processes. Support can be provided by SENDIASS - Staffordshire Family Partnership

Resolving disputes as early as possible

We are committed to resolving any disputes as early as possible. Parents and young people are strongly encouraged to raise their concerns with their SEND key worker or the SEND locality manager that is handling their case. 

When can I use mediation?

Mediation can take place following decisions where there is a disagreement about:

  • The description of the child or young person’s special educational needs in an education, health and care plan (Section B).
     
  • The special educational provision specified in an education, health and care plan (Section F).
     
  • The health and social care aspects of education, health and care plans (Sections C, D, G, H1 and H2).
     
  • The school or other educational institution named in an education, health and care plan (Section I).
     
  • A decision by the local authority not to issue an education, health and care plan.
     
  • A decision by the local authority not to carry out a re-assessment for a child/young person who has an education, health and care plan.
     
  • A decision by the local authority not to amend an education, health and care plan following a review or re-assessment.
     
  • A decision by the local authority to cease to maintain an education, health and care plan.

Do I need to contact the mediation adviser if I want to appeal?

When we send the parent or young person notice of a decision which can be appealed to the tribunal, it will tell the parent or young person of their right to go to mediation. In this case they must contact a mediation adviser before registering an appeal with the tribunal. This notice will:

  • give the contact details of a mediation adviser.
      
  • contain the timescales for requesting mediation.
      
  • contact details of any person acting on behalf of the council who the parent or young person should contact if they wish to pursue mediation.

Parents’ and young people’s right to appeal is not affected by entering into mediation. Once the information has been provided it is for the parent or young person to decide whether they want to go to mediation before any appeal they might make to the tribunal.

Parents and young people who wish to make an appeal to the Tribunal may do so only after they have contacted an independent mediation adviser and discussed whether mediation might be a suitable way of resolving the disagreement.

How is the information provided?

This will normally be provided on the phone, although information can be provided in written form, through face-to-face meetings or through other means if the parent or young person prefers. The mediation adviser should be ready to answer any questions from the parent or young person and explain:

  • that mediation is an informal, non-legalistic, accessible and simple disagreement settlement process run by a trained third party and designed to bring two parties together to clarify the issues, and reach a resolution.
      
  • that the parent or young person’s use of mediation is voluntary.
      
  • the timescales which must be met and the certificate.
      
  • that the local authority will pay reasonable travel expenses and other expenses to the parent or young person taking part in mediation.

What if I decide not to go to a mediation?

Where the parent or young person decides not to go to mediation following contact with the mediation adviser, the adviser will issue a certificate. This will be provided within three working days of the parent or young person telling them that they do not want to go to mediation, this will confirm that information has been provided. The certificate will enable the parent or young person to lodge their appeal, either within two months of the original decision being sent by the local authority or within one month of receiving the certificate. 

Parents and young people do not have to contact the mediation adviser prior to registering their appeal with the tribunal if:

  • if their appeal is solely about the name of the school
      
  • college or other institution named on the plan, the type of school
      
  • college or other institution specified in the plan or the fact that no school or other institution is named in Section I.

Parents and young people will already have had the opportunity to request a school, college or other institution and to discuss this in detail with the local authority.

Who provides this service?

Mediation is provided by an independent service called Global Mediation and can be contacted on 0800 064 4488 or by email at sen@globalmediation.co.uk  

Can I still appeal if I choose to go to mediation?

Mediation will not always lead to complete agreement between the parties. If the parent or young person still wants to appeal to the tribunal following mediation they must send the certificate to the tribunal when they register their appeal.

Partial agreement achieved through mediation can help to focus any subsequent appeals to the tribunal on the remaining areas of disagreement.

How can I give feedback?

We welcome feedback from our parents and/or young people and their families. By giving our residents a voice, we can use the feedback we receive to inform, review and improve the services that we provide or commission. We aim to provide a high standard of service; however there are occasions where parents and/or young people may feel that this standard has not been met.

We want to hear about these experiences so that we can:

  • Learn from your experience.
      
  • Put things right where needed.
      
  • Resolve complaints as soon as we possibly can.

For more information, or to leave feedback, please visit the compliments, comments or complaints section of our main website.

SEND tribunal - what is the process and how do I appeal a decision?

Single Route of Redress – National Trial

What is the National Trial?

The Government are extending the powers of the First-tier Tribunal (Special Educational Needs and Disabilities), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care Plans as part of a national trial. The trial will apply to decisions made or Education Health and Care Plans issued/amended from 3 April 2018 and will run until August 2021, when a decision will be made on its continuation.

To date, you have only been able to appeal the educational aspects of Education Health and Care Plans.  The trial gives you new rights to request recommendations about the health and social care needs and provision specified in Education, Health and Care Plans, in addition to the educational aspects, when making a SEND appeal.  This gives you the opportunity to raise all your concerns about an Education Health and Care Plan in one place.

It is only possible for the Tribunal to consider the health and/or social care aspects of the Education Health and Care Plan where you are already making an appeal in relation to the education aspects of the 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 Education Health and Care 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 information from SENDIASS - Staffordshire's Information, Advice and Support Service.

If the SEND Tribunal makes a recommendation about health or social care elements of an Education Health and Care 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.

What about the health and social care parts of the plan?

You can request the tribunal makes recommendations about the health and/or social care aspects of Education Health and Care Plans (Sections C, D, G, H1 and H2) as part of an appeal relating to:

  • The description of the child or young person’s special educational needs in an education, health and care plan (Section B).
     
  • The special educational provision specified in an education, health and care plan (Section F).
     
  • The school or other educational institution named in an education, health and care plan (Section I).
     
  • A decision by the local authority not to issue an education, health and care plan.
     
  • A decision by the local authority not to carry out a re-assessment for a child/young person who has an education, health and care plan.
     
  • A decision by the local authority not to amend an education, health and care plan following a review or re-assessment.
     
  • A decision by the local authority to cease to maintain an education, health and care plan.

What does this mean for local areas?

The trial places responsibility on the SEND assessment and planning service to:

  • Inform parents and young people of their new rights through decision letters and the local offer.
     
  • 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.
     
  • If a recommendation has been made, email the health and social care response letters to the evaluators at SENDletters@IFFResearch.com

It also places responsibility on health and social care commissioners to:

  • Respond to any request for information and evidence within the timeframe set by the Tribunal
     
  • Send a witness to attend the hearing as required
     
  • Respond to the parent or young person and the SEND assessment and planning service 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 I request a health or social care recommendation?

If a parent or young person wishes to appeal against a local authority decision on any of the grounds above, and want to request that the tribunal considers your concerns about the health and social care aspects of the education, health and care 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. Further guidance can also be found in the trial toolkit of support.

Single route of redress national trial - 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 local authority’s decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the local authority. If you want to appeal only about the school or other institution named in the education, health and care plan you do not have to contact a mediation adviser.

You can go to mediation about the health and social care elements of an education, health and care 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 education, health and care 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