SENDIASS guidance for mediation and tribunal

Mediation

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.

Tribunal

The SEND Tribunal 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 to pay for a meeting with a solicitor.

The SEND Tribunal produces a free booklet, How to Appeal and other guidance forms.

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 or you can request a DVD from the SEND Tribunal.

HM Courts & Tribunal Service have released a video to help people to understand what to expect and how to prepare for online hearings in the SEND Tribunal. 

SEND Tribunal Extended Appeals

From April 2018 to August 2021, the SEND Tribunal National Trial tested the extended powers of the First-tier Tribunal Special Education Needs and Disability (SEND) Tribunal to hear appeals and make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans, provided those appeals also include education elements.

An independent evaluation of the national trial found positive findings and on 20 July 2021, the Department for Education confirmed the extended powers given to the Tribunal will continue.

This gives you the right 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.

Please see: SEND Tribunal: extended appeals