In the two reviews discussed in this module (Sophia and Marley), there is general agreement about what should happen next for the child, but what would happen if there was disagreement about whether either an Education, Health and Care (EHC) Plan or a Statement of Special Educational Needs should be issued or amended?
In the most serious disagreements over special education provision, the parents may appeal to the Special Educational Needs and Disability tribunal. Tier 1 (special educational needs/disability) tribunals are intended to provide a 'convenient and effective' means of resolving the dispute without the need to resort to a court of law.
However, despite the EHC Plan being an inter-agency document, the routes to mediation and appeal are complex, with each agency having its own system.
Although the special educational needs and disability (first-tier) tribunal as a body operates in the same way under both the Education Act 1996 and the Children and Families Act 2014 frameworks, there have been a number of important system changes, including:
- As the Education, Health and Care (EHC) Plan can involve provision by the three government agencies – Education, Health and Social Care – there are multiple appeal procedures depending on the type of provision under dispute and whether it is associated with the child's/young person’s special educational need. For a summary of different procedures, see the 0-25 SEND Code of Practice (2015) (section 11.2).
- Under the Children and Families Act 2014, parents and young people are required to contact a mediation adviser before registering an appeal about EHC Needs Assessments or the special educational needs element of an EHC Plan. However, they do not have to actually engage with the disagreement resolution services unless they decide to do so. They can choose to go straight to appeal.
- Young people over the age of 16 years, as well as parents, may register an appeal in their own right.
For further information, see Chapters 2 and 11 of the 0-25 SEND Code of Practice
(2015).
Click here for
a synthesis of all the routes to appeal.
Resolving disagreements is based on the following principles:
- A person-centred approach in which decisions are made jointly by providers, parents, and children/young people;
- Open communication between all parties;
- Information and, where necessary, independent support to enable parents and children/young people to participate meaningfully in the decision-making and complaints processes;
- Local authorities making parents and young people aware of the options for resolving disagreements across education, health and social care through disagreement resolution and mediation procedures.
A tribunal will make recommendations that are binding on the parties involved. Even if its decision is no longer relevant for the claimant (for example, a child's/young person's needs have changed since the appeal started), its recommendations can stand as a binding duty on a local authority for the benefit of the wider pupil population (for example, a school may be required to install a lift for wheelchair access). Tier 1 (special educational needs/disability) tribunals also hear appeals about:
- Refusals to assess or reassess a child/young person;
- Refusals to make an Education, Health and Care (EHC) Plan;
- The contents of an EHC Plan;
- Parents wanting their child to go to a different school;
- Decisions not to amend an EHC Plan or Statement of Special Educational Needs following a review;
- Decisions to cease to maintain an EHC Plan or a Statement of Special Educational Needs.
Special educational needs/disability tribunals are first-tier tribunals. Any appeals against their rulings go to an upper tribunal. Such appeals must be based upon a point of law, rather than just a refusal to accept the tribunal's decision. For example, the challenge may relate to a misinterpretation of a child's/young person's circumstances by the tribunal panel.
Tribunals provide the special educational needs appeal route for young people with special educational needs/disabilities and parents of children/young people with special educational needs/disabilities, but can be a time-consuming process, during which children/young people may not receive the educational provision that is most appropriate to their needs.
Legislation and guidance