Although Education, Health and Care agencies have been instructed to work together towards a single gateway for complaints on behalf of children/young people with special educational needs/disabilities, currently there are separate complaints procedures.
Parents/carers and young people (over 16 years) with special educational needs/disabilities who are not happy with their education, health or care services have the right to:
- Complain to the relevant authority (different for education, health and care), and have their complaint properly and efficiently investigated;
- Receive full and accessible information about the complaints process and
about independent
support available; - Receive full and timely replies detailing the outcome of any investigation into their complaint;
- Be treated fairly, respectfully and with dignity when making a complaint, regardless of their racial identity, sexuality, disability, age, culture. religion, gender or status.
NB It is important to keep detailed dated notes of conversations and a dated copy of any paperwork sent or received relating to the complaint.
'Throughout the passage of the [Children and Families] Bill through Parliament, there were calls for a better system of complaints and redress for parents and young people.
'The LGA argued that, because the EHC Plan integrates education, health and social
care, this should be reflected in a single route of redress and appeal. This would
mean that parents who have concerns or complaints about the health [including health
commissioners] or social care elements of a plan would not have to go through a separate
process to
obtain redress…
At a late stage, the Government introduced a review of the effectiveness of redress
arrangements and the requirement that a report be laid before Parliament within 3
years of the Act coming into force (section 79). This leaves scope for the appeals
process to be improved in the future.'
(Local Government Association, 2014)
Until this happens, the 0-25 SEND Code of Practice (2015) provides a table showing 'Avenues to complaint and redress' for different agencies on page 246.
The Children and Families Act 2014 requires local authorities to make Disagreement and resolution services available to parents and young people (over 16 years).
Under the Children and Families Act 2014, a young person over the age of 16 (the end of compulsory schooling) also has the right to appeal to the Special Educational Needs and Disability Tribunal. However, if a young person with special educational needs lacks mental capacity (see the Mental Capacity Act 2005 and guidance) parents or others acting on behalf of the young person in their best interests will be able to pursue such appeals or exercise their other rights under the Act (0-25 SEND Code of Practice, 2015 (CoP), Annex 1, p. 273).
Young people who have capacity under the Mental Capacity Act 2005 can register
an appeal in their name but can also have their parents’ help and support if needed
(CoP, section 11.44).
Parents/carers and young people (over 16 years) with special educational needs/disabilities may disagree with decisions taken by education services or their local authority.
If the service itself cannot resolve their concerns, three additional levels of complaint resolution are open to parents/carers and young people. Under the Children and Families Act 2014, the local authority must offer 'Disagreement resolution' and 'Mediation' services.
The First-tier Tribunal (Special Educational Needs and Disability) is a body, independent of Government that hears appeals against decisions made by local authorities on statutory assessments, Statements of Special Educational Needs and Education, Health and Care Plans. Although parents/carers and young people must receive a mediation certificate before lodging an appeal with the First-tier (Special Educational Needs and Disability) Tribunal, they need not go through the mediation process (Long, 2014).
Click on the links below to reveal
the explanation.
For further information read Chapter 11 of the 0-25 SEND Code of Practice (2015).
Level 1: Local resolution
Bring the issue to the attention of the professional concerned, their manager or the head of service (eg the headteacher). If an agreement cannot be reached, the service must explain their complaints procedures to parents/carers and young people. The local authority can also offer advice through their 'information, advice and support service'.
Return
Level 2: Disagreement resolution
This step is voluntary at the time of writing. Local authorities must publish details of their 'Disagreement resolution' arrangements within their Local Offer. Disagreement resolution covers three areas of disagreement:
- How the local authority or educational settings are carrying out their education, health and care duties in relation either to 'SEN support' or to an Education, Health and Care Plan (eg duties on: governing bodies and proprietors to use their best endeavours to meet children and young people's special educational needs; the local authority to keep its education and care provision under review; the local authority to assess needs and draw up EHC Plans);
- The provision made by educational settings for a child/young person in relation either to 'SEN support' or to an Education, Health and Care Plan;
- The health or social care provision made by a local authority or Clinical Commissioning Group (CCG) in relation to a child's/young person's EHC Needs Assessment or EHC Plan (including reviews, maintenance, reassessment and termination).
Return
Step 3: Independent mediation service
This step is also voluntary at the time of writing. Mediation is available if parents/carers or young people cannot reach an agreement with their local authority or CCG about their EHC Plan. The local authority must make mediation available, and set out the arrangements in their Local Offer.
Mediation covers only specific disagreements:
A. Where parents/carers or young people disagree with local authority decisions:
- Not to carry out an EHC Needs Assessment or re-assessment;
- Not to draw up an EHC Plan following an EHC Needs Assessment;
- Not to amend an EHC Plan after an annual review or re-assessment;
- To cease maintaining an EHC Plan;
B. Where a parent/carer or young person disagrees with the local authority about:
- How their EHC Plan describes a child's/young person's special educational needs;
- The special educational provision described in the EHC Plan.
The local authority must provide parents/carers or young people with access to an independent mediation adviser who should have accredited training. Once the adviser informs the local authority that parents/carers or a young person would like a mediation meeting, the meeting must take place within 30 days at a date, time and place of the parents/carers/young person's choosing. They can bring a friend, adviser or advocate for support. Following mediation, a mediation certificate must be issued within 3 working days.
Parents/carers or young people wanting to register an appeal with the Special Educational Needs and Disability Tribunal have to contact the independent mediation adviser for a mediation certificate unless the appeal related only to disagreement about a school named or not named in the EHC Plan. They do not need to go through the mediation process to get a certificate (Long, 2014).
Return
Level 4: Appealing to the Special Educational Needs and Disability (SEND) Tribunal
The SEND Tribunal is a legal body that hears appeals against decisions made by local authorities about EHC Needs Assessments and EHC Plans. Although they can only hear appeals about the education aspects of the single plan, health or social care provision made wholly or mainly for the purposes of education or training must be treated as special educational provision. Parents/carers or young people can appeal when an Education Health and Care Plan is finalised, amended or when a replacement EHC Plan is issued. They have have 1 month from receiving the mediation certificate or two months from the original decision (whichever is the later date) to register an appeal with the Tribunal.
Appeals can be made in the following situations:
A. Where parents/carers or young people disagree with local authority decisions:
- Not to carry out an EHC Needs Assessment or re-assessment;
- Not to draw up an EHC Plan following an EHC Needs Assessment;
- Not to amend an EHC Plan after an annual review or re-assessment;
- To cease maintaining an EHC Plan;
B. Where a parent/carer or young person disagrees with the local authority about:
- How their EHC Plan describes a child's/young person's special educational needs;
- The special educational provision described in the EHC Plan;
- The school (or other educational establishment) named by the local authority, or if a school is not named;
- Changes made by the local authority to any of these details without agreement.
Appeals against refusal to assess can be made only if the local authority has not made a new EHC Plan during the last 6 months. If the appeal is against the local authority ceasing a Plan, the local authority has to continue to maintain the EHC Plan until the Tribunal has made its decision.
The SEND Tribunal also hears disability discrimination claims against schools (and against local authorities if the local authority is responsible for the school).
The First-tier (SEND) Tribunal must consider the Code of Practice when making decisions in relation to Part 3 of the Act (Council for Disabled Children, 2014).
For more details, see:
Council for Disabled Children (2014) The Children and Families Act 2014: Part 3: Children and young people with special educational needs and disabilities - A briefing from the Council for Disabled Children. London: CDC.
HM Courts and Tribunals Service (2015) How to Appeal an SEN Decision: A guide for parents (SEND1). Darlington: HMCTS. [2001 SEN Framework]
HM Courts and Tribunals Service (2014) How to Appeal a Special Educational Needs and Disability (SEND) Decision: A guide for parents (SEND25). Darlington: HMCTS. [2014 SEN Framework]
Return
Level 5: Local Government Ombudsman
The Local Government Ombudsman focuses on complaints about special educational needs/disability framework processes (eg where timescales have not been followed or stated provision has not been provided). The law generally prevents this service from investigating complaints which can be addressed by appeal to the statutory first-tier (special educational needs and disability) tribunal.
Under the Children and Families Act 2014 and regulations, the Ombudsman can also consider local authority actions around transitional arrangements from the old to the new special educational needs/disability framework. They can also look at issues around Personal Budgets, greater involvement of children and particularly young people over the age of 16 in decisions about their provision, and the 'Local Offer' councils must set out for the special educational needs provision in their area.
For further details, see the Local Government Ombudsman web page, 'Complaints about special educational needs' and their 2014 publication of the same name.
Return
The rights of parents/carers and young people over 16 to complain are upheld within the NHS Constitution. Parents/carers or young people must normally make a complaint within 12 months of the date of the event causing concern or as soon as it became a source of concern, unless there are exceptional circumstances.
The NHS website describes three steps to making a complaint. Click on each 'step' to reveal the explanation.
The NHS Choices website gives further guidance on making complaints:
'How
do I make a complaint about
an NHS service?'
Speaking face to face with the professionals concerned within the health setting (eg a clinic manager, a consultant).
Return
If 'local resolution' does not solve the issue satisfactorily, EITHER:
Parents/carers, the young person or someone acting on their behalf can request the formal complaints procedure from their service provider. (Every NHS organisation has a complaints procedure available from staff, their website or the complaints department).
OR
They can complain to the Complaints Manager at their commissioner of services – NHS England for primary care (eg GP, dentist, opticians, etc); the service's Clinical Commissioning Group (CCGs) for secondary care (eg hospital care, community services).
Return
Health Service Ombudsman
Parents, young people or their representatives can take a complaint to the independent Parliamentary and Health Service Ombudsman. They can:
- Make a claim for judicial review if they have been directly affected by an unlawful act or decision of an NHS body;
- Receive compensation if they've been harmed.
Return
Parents/carers and young people over 16 years (or someone acting on their behalf) can make a complaint about a social care service if:
- They are in receipt of that service; or
- Feel they have a right to that service.
The complaint should be made as soon as possible after the event causing concern. The local authority Complaints Team can refer parents/young people/their advocates to independent organisations who can support them in making a complaint.
There are four steps to the complaints service – click on each button to reveal a further explanation:
Further details on making a complaint about social care services are available from:
- Website: 'Making a complaint' (Local Government Ombudsman)
- Statutory guidance: Getting the Best from Complaints: Social care complaints and representations for children, young people and others (Department for Education and Skills, 2006)
Parents/carers or young people (over 16 years) should first raise their issue either directly with the person they were dealing with, their manager or the children's services complaints team. Explain what went wrong and what they can do to put it right. If the issue cannot be sorted out immediately, a senior manager will investigate it further and respond or update them on progress within 10 days.
Return
If parents/carers or young people are dissatisfied with 'local resolution', they can request a mediation meeting or lodge a formal complaint with the children's services complaints manager. The complaint will be acknowledged within 5 days. An Independent Investigating Officer will meet the parent/carer, young person and/or advocate to discuss their complaint, and then investigate it. An independent person may also be appointed to ensure fair treatment.
Return
Parents/carers or the young person must make a request for a Complaints Review Panel within 20 working days of receiving the response to their complaint. A Review Panel is three independent people who will hear their complaint and consider how it can be resolved. They have the right to bring a representative to speak on their behalf.
Return
Having taken the steps above, if parents/carers or young people are not satisfied with the response to their complaint and want to take the matter further, they can take it to the Local Government Ombudsman.
Return
Young people and/or parents may also complain directly through the established complaints procedures of other bodies, for example:
- Early education providers (must receive a response within 28 days);
- Schools (including academies, free schools and independent schools);
- The Secretary of State (if disagreements have not been resolved at a local level and only with regard to maintained schools);
- Ofsted for post-16 institutions (or, if not satisfactory, via the Skills Funding Agency);
- Local authorities (with regard to issues such as admission to schools, exclusions, child protection and school transport).
(Mencap, 2014)
Legislation and guidance
- Mental Capacity Act 2005
- Getting the Best from Complaints: Social care complaints and representations for children, young people and others (Department for Education and Skills, 2006)
- Children and Families Act 2014
- The [NHS] Mandate: A mandate from the Government to NHS England – April 2015 to March 2016. (Department of Health, 2014)
- Special Educational Needs and Disability Code of Practice: 0-25 years (2015)
Other publications (1)
- Council for Disabled Children (2014) The Children and Families Act 2014: Part 3: Children and young people with special educational needs and disabilities - A briefing from the Council for Disabled Children. London: CDC.
- Department for Education (2014) Special Educational Needs and Disability: A guide for parents and carers. London: Department for Education.
Other publications (2)
- HM Courts and Tribunals Service (2014) How to Appeal a Special Educational Needs and Disability (SEND) Decision: A guide for parents (SEND25). Darlington: HMCTS. [2014 SEN Framework]
- HM Courts and Tribunals Service (2015) How to Appeal an SEN Decision: A guide for parents (SEND1). Darlington: HMCTS. [2001 SEN Framework]
- Local Government Association (2014) Get In on the Act: Children and Families Act 2014. London: LGA. [Online at: http://www.local.gov.uk/documents/10180/11431/Get+in+on+the+Act+-+Children+and+Families+Act+2014/4443e520-80c9-4013-a785-cad56b578d23; accessed: 20.12.14]
- Local Government Ombudsman (2014) 'Complaints about special educational needs' (Factsheet E6). Darlington: LGO. [Online at: http://www.lgo.org.uk/downloads/fact%20sheets/2084-E6-special-educational-needs.pdf; accessed: 19.3.15]
- Long, R. (2014) 'The reformed system for children and young people with Special Educational Needs in England'. London: House of Commons Library.
- Mencap (2014) 'Rights for parents and young people' (fact sheet). London: Mencap.
Media
- HM Courts and Tribunals Service factsheets: http://hmctsformfinder.justice.gov.uk/HMCTS/Get
Forms.do?court_forms_category=special
%20educational%20needs - HM Government: 'Guidance on how to appeal to the special educational needs
and disability tribunal' https://www.gov.uk/special-educational-
needs-disability-tribunal/overview - Local Government Ombudsman (2015) 'Complaints about special educational
needs'. [Online at: http://www.lgo.org.uk/publications/fact-
sheets/complaints-about-special-educational-
needs; accessed: 19.3.15]
- 'Local Government Ombudsman: 'Making a complaint': http://www.lgo.org.uk/making-a-
complaint - NHS Choices: 'The NHS Constitution': http://www.nhs.uk/choiceintheNHS/Rightsandpled
ges/NHSConstitution/Pages/Overview.aspx - NHS Choices: 'How do I make a complaint about an NHS service?': http://www.nhs.uk/chq/pages/1084.aspx
- NHS Choices: 'Tips on how to make a complaint': http://www.nhs.uk/choiceintheNHS/Rightsandpled
ges/complaints/Pages/AboutNHScomplaints.aspx - NHS Choices: 'The NHS complaints procedure explained': http://www.nhs.uk/choiceintheNHS/Rightsandpled
ges/complaints/Pages/NHScomplaints.aspx - Parliamentary and Health Service Ombudsman: http://www.ombudsman.org.uk