Challenging SEND Decisions: Navigate Mediation and Appeals
Navigating the complex world of SEND (Special Educational Needs and Disabilities) can be overwhelming, especially when decisions made by local authorities don't align with a child's needs. Understanding how to effectively challenge these decisions, through mediation or appeals, is crucial for parents and young people aiming to secure the right support. This guide provides a practical overview of the processes involved and offers insights into making each step as effective as possible.
Why Mediation and Appeals Matter
When a local authority (LA) refuses to assess, amend, or issue an Education, Health, and Care (EHC) plan, it can feel like a significant setback. However, parents and young people have rights to challenge these decisions through mediation and, if necessary, an appeal to the SEND Tribunal. Knowing how these processes work can help families advocate effectively and ensure that the child’s best interests remain the focus.
Step 1: Understanding the Mediation Requirement
Under the Children and Families Act 2014, families must consider mediation before appealing certain decisions to the SEND Tribunal. This requirement aims to resolve disputes without the need for a formal hearing.
When Mediation is Needed: Mediation applies to most parts of the EHC plan related to education. Families are not obligated to go through mediation if the dispute only concerns the choice of school (Section I) named in the plan.
Mediation Certificate: A family must obtain a mediation certificate before they can lodge an appeal, either by participating in mediation or confirming that they do not wish to pursue it. This certificate, issued by a mediation advisor, is essential to move forward with an appeal.
Key Tip: If you’re unsure about mediation, consult a mediator to discuss its potential benefits. The goal of mediation is to find a solution that both parties can agree on, potentially avoiding a lengthy appeal process.
Step 2: Preparing for Mediation
Mediation can be an effective way to reach an agreement without the formality of a tribunal hearing. It’s a voluntary, structured discussion where an independent mediator helps both parties—usually the LA and the family—work towards a solution.
How to Prepare for Mediation:
Identify Key Issues: Determine the specific points of disagreement, whether it’s the type of support needed, the resources allocated, or particular provisions in the EHC plan.
Gather Evidence: Bring relevant documentation, including assessments, reports from professionals, and records of your child’s progress.
Know Your Desired Outcome: Clearly outline what changes you’re seeking in the EHC plan, whether that’s additional resources, amendments, or a new placement.
Mediation can often lead to faster resolutions and a more collaborative outcome. If successful, a written agreement will be drawn up and should be adhered to as if it were a tribunal order.
Step 3: When Mediation Isn’t Enough—Moving to an Appeal
If mediation doesn’t result in a satisfactory outcome, or if the family decides to bypass mediation (except where required), they can appeal to the SEND Tribunal. Appeals can be lodged for a variety of reasons, including:
Refusal to carry out an EHC needs assessment
Refusal to issue an EHC plan
Decisions to amend or cease an EHC plan
Disagreements about the content of the EHC plan (Sections B, F, and I)
Timeframes: Appeals must be filed within two months of receiving the LA’s decision or one month from the mediation certificate, whichever is later. Keeping track of these deadlines is crucial to avoid delays in the appeals process.
Step 4: Preparing for the SEND Tribunal
Appealing to the SEND Tribunal can be a more formal and structured process than mediation. It involves gathering evidence, preparing documentation, and, in some cases, attending a hearing.
Building a Strong Case: Collect evidence that supports your child’s needs and the provisions required. This might include medical records, educational assessments, letters from professionals, and reports detailing how your child is affected by their current educational setting.
Focusing on Key Sections: Most appeals focus on Sections B (Special Educational Needs), F (Special Educational Provision), and I (Placement) of the EHC plan. Ensure that all needs and provisions are clearly outlined and supported by evidence.
Know the Legal Grounds: Familiarise yourself with the legal standards the Tribunal uses, such as whether the EHC plan provisions are specific and tailored to meet the child’s unique needs.
Tip: Consider reaching out to organisations like IPSEA or SENDIASS for guidance. They can offer advice and may provide support throughout the Tribunal process.
Step 5: What to Expect at the Tribunal Hearing
While not all cases will require an in-person hearing, it is essential to be prepared. Tribunal hearings are designed to be as accessible as possible, but they are formal, and each side presents their case to the Tribunal panel.
Presenting Your Case: Parents or young people (with or without legal representation) will have the opportunity to explain why they believe the LA’s decision does not meet the child’s needs. It’s helpful to be concise, clear, and focused on how the proposed changes would benefit the child.
LA’s Position: The local authority will also present its case, often explaining why the current provisions are deemed suitable or why additional resources aren’t provided.
Outcome: Following the hearing, the Tribunal will make a legally binding decision. The local authority is required to comply with any orders made, whether it’s amending, issuing, or ceasing an EHC plan.
What to Do if the Tribunal Decision is Unfavourable
If the Tribunal’s decision does not go in your favour, you have the option to appeal to the Upper Tribunal, but only if there is a legal basis to argue that the Tribunal made an error in applying the law. This can be a complex process and may require legal advice.
Alternative Options: Sometimes, working with an independent advisor to review the EHC plan can provide new insights. This can help identify other ways to support your child’s needs and prepare for further discussions with the LA.
At SAILs, we understand the challenges families face when navigating SEND decisions. Our PATH (Planning Alternative Tomorrows with Hope) planning framework is designed to clarify and document your child’s educational needs and goals. With our support, families can build strong cases for necessary provisions, and our expert team can offer guidance throughout the mediation and appeal processes.
For personalised support and tools to make the most of your EHC plan, visit www.sails-op.com and learn how SAILs can help.
Advocating for Your Child’s Needs
Challenging SEND decisions can be a complex journey, but understanding your rights, the mediation process, and how to appeal effectively can make a significant difference. Whether you resolve issues through mediation or take them to the SEND Tribunal, staying focused on your child’s needs and preparing thoroughly can increase your chances of success.
If you need guidance through any part of this process, contact SAILs to explore how our tools and expertise can help you advocate for the support your child deserves.