Shropshire Council

Resolving disagreements

Overview

We always try to resolve disagreements by meeting parents/carers or young people. This often helps all involved to better understand the issues or concerns that are the cause of the disagreement. Sometimes this meeting will also include professionals involved in providing a service, including schools and post 16 settings. The Shropshire Information Advice and Support Services (IASS), can provide support for parents and young people in arranging and attending meetings.  

Occasionally, it isn’t possible to reach an agreement without additional support from a third party to provide an independent viewpoint. We use Prime Resolution to provide impartial, independent and free disagreement resolution and mediation for parents/carers and young people up to the age of 25.

If you would like information about alternative providers, please contact us. From 3 April 2018, a National Trial has been launched for a Single Route of Redress, please see section below for further information.

Disagreement resolution

Informal disagreement resolution services are available through IASS. We recommend that you access this support before moving to a more formal process, such as mediation. IASS can give you information and advice about the options available to you when you disagree with the provision made available to you or for your child with SEND, and can continue to offer advice and support throughout more formal processes.

In Shropshire we use Prime Resolution to provide disagreement resolution services via mediation at an early stage. Disagreement resolution is very similar to mediation, but is available in a wider range of circumstances. This service is suitable for all children and young people with SEND, including those identified at SEN Support. Disagreement resolution uses trained mediators to resolve different types of disagreement in a quick and effective way. Disagreement resolution is an entirely voluntary process and can only take place with the agreement of all parties.  

This service is available to help resolve disagreements about:

  • How the early years setting, school, post-16 setting or local authority (LA) is carrying out its duties for children and young people with special educational and/or health and care needs
  • The provision that the early years setting, school, or post-16 setting is making. This applies to all children and young people with SEN, not just those going through an EHC needs assessment or with an EHC plan
  • The health or social care provision during an EHC needs assessment, while EHC plans are being drawn up or reviewed, whilst awaiting an appeal, or when children or young people are being reassessed. In these cases the disagreement will be with the LA or clinical commissioning group (CCG), rather than the early years setting, school, or college

Dispute resolution is also available if parents or young people disagree with:

  • Section E, H and C of the plan
  • The special educational provision set out in the EHC plan
  • The health and social care elements of an EHC plan.

Disagreement resolution services can be used at any time, if both parties agree. This includes while an EHC needs assessment is being conducted, while the plan is being drawn up, after a plan is finalised or while an appeal is going through the tribunal process. All cases are different, and we encourage you to contact IASS or ourselves directly to discuss whether disagreement resolution may be able to help.

Mediation

Mediation is a voluntary process for parents and young people which can take place following decisions we take about certain aspects of an EHC plan, including our decision not to:

  • Carry out an EHC needs assessment or re-assessment
  • Draw up an EHC plan after an EHC needs assessment has been done
  • Amend an EHC plan after an annual review or re-assessment

or following our decision to:

  • Cease to maintain an EHC plan

Mediation arrangements are specifically linked to decisions about EHC needs assessments and plans.

We're fully committed to working in partnership with parents/carers and young people. However, there may be occasions when we're not be able to reach an agreement without the involvement of a third party. If this is the case mediation may be the next step to take before consideration of The SEN and Disability Tribunal.

How do mediation services work?

Your mediator will work with you to identify the areas of dispute, and will organise and lead a structured meeting on your behalf. Mediation services are fully independent, and the mediator will ensure that everyone understands each other’s position. They'll support the discussion and assist everyone involved in arriving at an agreement if at all possible. If the meeting doesn't reach full agreement, you can still formally appeal to The SEN and Disability Tribunal for a final ruling.

If you're unsure about whether you need to proceed with mediation and would like further help with this, please contact us or Shropshire IASS.

What happens if I don't want to proceed with mediation?

There are some circumstances in which you don't need to have a certificate from a mediation adviser before you register an appeal with the SEND tribunal. This is the case if:

  • Your appeal is solely about the name of the school, college or other institution named on the EHC plan, the type of school, college or other institution specified in the plan or the fact that no school or other institution is named

or

  • You're making a disability discrimination claim to the SEND tribunal

In all other cases the law requires you to contact a mediation service, before proceeding to a SEN and disability tribunal. If, after you've discussed your position with a mediation service, you don't believe that a mediation meeting will be helpful you can request that the mediation service issue you with a certificate that confirms that they've spoken to you. You'll require this certificate before the SEN and disability tribunal will allow you to lodge an appeal.

A request for mediation must be made within two months of the date of our decision notice.

Special Education Needs and Disability Tribunal (SENDIST)

Sometimes it may be necessary to appeal to the Special Educational Needs and Disability Tribunal (SENDIST). SENDIST is responsible for handling appeals against local authority decisions regarding special educational needs, including a refusal to:

  • Assess a child’s educational, health and care (EHC) needs
  • Reassess their special educational needs
  • Create an EHC plan
  • Change what’s in a child’s EHC plan
  • Maintain the EHC plan

SENDIST also handle appeals against decisions to refuse people under 18 in custody:

  • An EHC assessment
  • An EHC plan after assessment
  • A placement to a suitable school or other institution after their release

SENDIST also handle appeals against discrimination by schools or local authorities due to a child’s disability.

If you'd like further information about SENDIST you can contact Shropshire IASS, contact SENDIST directly, or you can watch their video.

Single Route of Redress – National Trial

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. The following information on the national trial, to supplement the information that must already be published on the right to appeal a decision of the local authority, has been included below to support local authorities in fulfilling this duty.

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 national trial. The trial will apply to decisions made or EHC plans issued/amended from 3 April 2018 and will run until August 2020, when a decision will be made on its continuation.

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 EHC plan
  • 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/young person who has an EHC plan
  • a decision by the local authority not to amend an EHC plan following a review or re-assessment
  • a decision by the local authority to cease to maintain an EHC plan

What does this mean for local areas?

The Trial places responsibility on local authority SEND teams 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 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 a 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
  • Shropshire IASS - call 01743 280019
  • 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.

Complain about a school or childminder

Find out more about how to make a complaint about a school or childminder from the Gov.UK webpages.

Resolving disagreements FAQs

If you have any queries relating to resolving disagreements or mediation please contact the SEN Team on 01743 254267.

Can I use disagreement resolution and mediation at the same time?

Yes, disagreement resolution services can be used at any time, if both parties agree. This includes while an EHC needs assessment is being conducted, while the plan is being drawn up, after a plan is finalised or while an appeal is going through the tribunal process.

What If I want to make a complaint about the EHC assessment process?

You can contact the SEN Team directly to discuss your complaint or you may prefer to contact IASS. If you want to make a formal complaint then this will be dealt with through the our complaints procedure

What if I want to make a complaint about the local authority or health?

You can contact the SEN Team directly to discuss your complaint or you may prefer to contact IASS. If you want to make a formal complaint about the local authority this will be dealt with through the our complaints procedure.

If you want to make a complaint relating to health issues you can contact the service you're dealing with directly to discuss your concerns, or you may wish to contact the Patient Advice and Liaison Service (PALS) which will be able to offer you support and guidance to help you to resolve the issue informally, or provide you with advice on how to make a formal complaint. Further information about how to make a complaint about the National Health Service in England can be found at NHS Choices.

What if I disagree with the provision that the school/college has put in place?

It's always best to try and solve and disagreement with the school/college directly. Your child’s class teacher or the SENCo should be able to help you. If you or your child has an EHCP you may wish to request that a review of the EHCP is held if you believe that the provision being put in place isn't appropriate to meet the needs identified within the EHCP, or if you feel that the EHCP doesn't accurately reflect your or your child’s special educational needs. Alternatively you may want to contact IASS for support and advice on how to complain about the education provision that has been put in place for you or your child.

If you or your child has an EHCP you can contact us directly to discuss the EHC plan.

If your complaint is about how the school is implementing the provision described in the EHC plan, or about the provision that the school or college has put in place to meet your or your child’s needs at SEN Support, you can use the individual school/colleges complaints procedure, which should be accessible on their website. 

Is there a difference between disagreement resolution and mediation?

Mediation is the term used in the code of practice for meetings planned and arranged by trained mediators in circumstances where there's a right of appeal to the SEND Tribunal. In these circumstances, we're obliged to offer mediation and to participate if the parent/young person requests it. Participation in mediation doesn't affect your rights of appeal to tribunal,  but does provide an opportunity to explore the possibility of agreeing a solution which could  avoid tribunal.

The term 'disagreement resolution' covers a range of support and advice services and includes: 

  • Early informal meetings with school staff and/or the SEN team to try and resolve issues without third party involvement
  • Advice, information and support provided by IASS
  • Meetings facilitated by IASS
  • The mediation process used at an early stage and in a wider range of circumstances

Within disagreement resolution processes the participation of all parties is voluntary.

Who can I bring to disagreement resolution or mediation with me?

The parents of a young person can be accompanied by a friend, adviser or advocate. If you're the parent of a child you may also be accompanied by your child where we have no reasonable objection.

Can I use disagreement resolution if my child is SEN support?

Yes, disagreement resolution can be used if you disagree about the provision that the school is putting in place to support your child at SEN Support. Contact Shropshire IASS in the first instance. They'll be able to support you to decide what the disagreement is about and who  needs to be involved in resolving this.

What if my child doesn't have SEN?

If you don't agree with an aspect of your child’s education, and your child doesn't have an identified special educational need, you'll need to discuss your concerns with the school. Every school should have a clear process in place to support you to discuss a concern or make a formal complaint.