Resolving Disagreements
Information for Children & Young People
DO NOT EDIT OR DELETE THIS
I’m not happy with the support I am receiving in school/ college, who should I talk to?
It is best to talk to the Special Educational Needs Co-ordinator (SENCO) in the school or SEND / Inclusion Lead in college initially to express your concerns. Contact the school to ask for a SEN Support meeting with the SENCO to discuss how they are supporting you via the Graduated Response. If you’re not happy with their response, make a formal complaint (through to appeal), directly to them. All state schools and colleges should have a complaints procedure. Ask them for a copy or check their website.
If you have an EHCP please see annual review section.
How do I appeal the Local Authority’s refusal to carry out an EHC Needs Assessment?
To discuss this decision, firstly contact the Officer named on the top right hand corner of your letter from the LA. If there are no contact details then email SENDadmin@derby.gov.uk and ask for the Officer dealing with your case to contact you.
Asking for a reconsideration of the decision
You can ask the Local Authority to reconsider their decision in the first instance. You should remind them of the legal threshold to carry out a Needs Assessment, which is:
- whether the child or young person has or may have special educational needs (“SEN”); and
- whether they may need special educational provision to be made through an EHC plan.
If the answer to both of these questions is yes, they must carry out an EHC needs assessment.
This test is set out in the law (section 36(8) of the Children and Families Act 2014). This means these are the only questions the LA should be asking when considering whether or not to carry out an EHC needs assessment.
You can also ask them to look at any new evidence you have since the EHC Needs assessment application was made. This may include a change in behaviour in school or at home or any medical evidence you have received that wasn’t included in the original application.
Please note: If you do not get a timely response from the LA, or they do not change their decision, you still have the right to appeal, but the 2 month from the date on the LA’s decision letter timescale applies.
Appealing an LA Decision to the SENDIST Tribunal
Once you have the letter from the LA informing you of their decision, you now have the right to appeal through the SENDIST Tribunal. However, this is a time limited opportunity. It is important to know that you have 2 months from the date of this letter to make your appeal. You will need to make the decision whether to go to mediation or straight to appeal.
What is Mediation?
Mediation is a way for you to discuss things with local authority staff which are led and supported by an independent mediation service. Discussions happen at a meeting, either in person or online and you can take someone along to support you. Sometimes people from other organisations also go along, such as staff from your child’s school or college.
It’s less formal than going to a tribunal to appeal. It doesn’t cost anything for you to use and you don’t need to be represented by a lawyer. Mediation is different from disagreement resolution because it’s specifically for parents and young people who are considering appealing about parts of the Education Health and Care (EHC) plan process.
Attending a mediation meeting isn’t compulsory, you only have to consider using mediation, if you decide to use mediation, a meeting will be set up between you and the local authority which must be held within 30 days. If you decide not to use mediation, you’ll be given a certificate which allows you to start your appeal.
You don’t have to contact a mediation adviser before registering an appeal if it’s solely about the name of the school, college or other institution named on the plan the type of school, college or other institution specified in the plan or the fact that no school or other institution is named.
The Mediation Service in Derby is provided by Global Mediation and you can contact them on 0800 064 4488 or email sen@globalmediation.co.uk to find out more. If you’re thinking about mediation or appealing, you can also talk to us to help you decide.
How do I appeal?
If you decide to go straight to appeal the process is as follows:
- Contact Global Mediation as you will require a mediation certificate in order to lodge your appeal, for this you do not need to attend a mediation meeting. See link below
- Complete the SEND 35a appeal form along with supporting evidence and email or post to the Tribunal (see form link here)
- You will need to send the dated Local Authority decision letter, mediation certificate and any supporting evidence along with the appeal form. The email address to send the form to the Tribunal is SEND@justice.gov.uk or it can be posted (it’s recommended via recorded delivery) to: Special Educational Needs and Disability Tribunal, 1st Floor, Darlington Magistrates Court, Parkgate, Darlington , DL1 1RU
- Make sure you have copies of all the paperwork.
- You have 2 months from the date of the Local Authority decision letter or 1 month from the date of the mediation certificate, whichever is later.
Please do not send original documents as they will not be return
Caselaw
Caselaw are written outcomes of cases that have been to the Tribunal before. One useful case is outlined below:
As made clear in the Upper Tribunal decision in Cambridgeshire CC v FLJ [2016] UKUT 225 (AAC), the initial stage updon receipt of a request, is for an LA to decide wether an assessment should be secured. At this stage, the LA need only conclude that special educational provision may be necessary for there to be a duty to undertake the assessment. It is provisional and predictive stage of the process and it is only when an assessment has been conducted that a definitive decision has to be made, therefore it would be difficult for the LA to prove that SEP may be required without carrying out the needs assessment.
Further information can be found from
https://www.ipsea.org.uk/appealing-to-the-send-tribunal
Coram Children’s Legal Centre – Home (childrenslegalcentre.com)
How do I appeal the Local Authority’s refusal to issue an Education, Health and Care Plan (EHCP)?
Once you have received your letter from the Local Authority stating they refuse to issue an EHCP you should contact the SEND officer, their details are on the on the top right hand corner of your letter. If there are no contact details then email SENDadmin@derby.gov.uk and ask for the Officer dealing with your case to contact you.
Asking for a reconsideration of the decision
Also, you could send a letter to the Local Authority SENDAdmin@derby.gov.uk asking for reconsideration of the decision (See Letter link here )
Appealing an LA Decision to the SENDIST Tribunal
Once you have the letter from the LA informing you of their decision, you now have the right to appeal through the SENDIST Tribunal. However, this is a time limited opportunity. It is important to know that you have 2 months from the date of this letter to make your appeal. You will need to make the decision whether to go to mediation or straight to appeal.
What is Mediation?
Mediation is a way for you to discuss things with local authority staff which are led and supported by an independent mediation service. Discussions happen at a meeting, either in person or online and you can take someone along to support you. Sometimes people from other organisations also go along, such as staff from your child’s school or college.
It’s less formal than going to a tribunal to appeal. It doesn’t cost anything for you to use and you don’t need to be represented by a lawyer. Mediation is different from disagreement resolution because it’s specifically for parents and young people who are considering appealing about parts of the Education Health and Care (EHC) plan process.
Attending a mediation meeting isn’t compulsory, you only have to consider using mediation, if you decide to use mediation, a meeting will be set up between you and the local authority which must be held within 30 days. If you decide not to use mediation, you’ll be given a certificate which allows you to start your appeal.
You don’t have to contact a mediation adviser before registering an appeal if it’s solely about the name of the school, college or other institution named on the plan the type of school, college or other institution specified in the plan or the fact that no school or other institution is named.
The Mediation Service in Derby is provided by Global Mediation and you can contact them on 0800 064 4488 or email sen@globalmediation.co.uk to find out more. If you’re thinking about mediation or appealing, you can also talk to us to help you decide.
The LA must arrange the meeting within 30 days of you contacting Global and they must agree to attend the meeting.
How do I appeal?
If you decide to go straight to appeal the process is as follows:
- Contact Global Mediation as you will require a mediation certificate in order to lodge your appeal, for this you do not need to attend a mediation meeting. See link below
- Complete the SEND 35 appeal form along with supporting evidence and email or post to the Tribunal (see form link here)
- You will need to send the dated Local Authority decision letter, mediation certificate and any supporting evidence along with the appeal form. The email address to send the form to the Tribunal is SEND@justice.gov.uk or it can be posted (it’s recommended via recorded delivery) to: Special Educational Needs and Disability Tribunal, 1st Floor, Darlington Magistrates Court, Parkgate, Darlington , DL1 1RU
- Make sure you have copies of all the paperwork.
- You have 2 months from the date of the Local Authority decision letter or 1 month from the date of the mediation certificate, whichever is later.
What are my Reasons for appeal?
It is often easier to put these on a separate sheet and write ‘See separate sheet headed Reasons for Appeal’ in the box on the form.
This is where you set out why you think the LA’s decision is wrong, try to put in everything you need to say, your full case, at this point.
As much as possible, you should try to get together any supporting evidence to submit with your appeal form. In your reasons for appeal, you should refer to this evidence to support your arguments (for example, if you are saying that your child has not made progress despite the support they currently receive, refer to school reports and/or annual review records which show this). Don’t worry if you don’t have everything ready to send straight away; you can submit more evidence after you’ve registered your appeal.
You must send in enough information for the LA to be able to respond.
What Evidence do I need?
It is important to obtain any written evidence as soon as you can. It is best to send in all your written evidence with your appeal form because this means you have the main substance of the case set out with supporting evidence right from the start and you may discover more about the LA’s arguments if they are able to respond fully. If you have a good case and evidence, the LA may concede (over turn their decision) rather than continue to fight the appeal.
If you think you need to send in evidence later in the process, you need to submit it by the final evidence deadline you are given by the tribunal.
If you are having difficulty getting information which is relevant to your case from the LA, you can use the Request for Changes form to write to the SEND Tribunal explaining what the document is and ask the SEND Tribunal for a ‘direction’ to make the LA release the document. Unless the LA has a good reason for not providing the document the SEND Tribunal will order the LA to release it.
If you know that an assessment or report will not be available until after the evidence deadline then you need to let the SEND Tribunal know and seek an extension (again using the Request for Changes form). It is possible to apply for late evidence to be submitted after this deadline, including bringing late evidence on the day, but it will be up to the SEND Tribunal as to whether or not this should be accepted. It is always best to tell them in advance.
Examples of evidence include (but not exclusive to):
- Medical reports/diagnosis letters
- School information such as IEP/MEP target sheets, school reports showing learning levels
- Supporting evidence from any other professionals involved – Speech & Language, OT, Psychology reports, Social Care, Family Support Worker etc.
- Any other information that supports your application
- Don’t send original documents, send photocopies or scans. Keep a copy of everything you send, including the form.
Once the appeal is lodged the Tribunal will contact you with a registration letter detailing the timescales for you and the Local Authority to send information to the court.
Timescales:
- Local Authority send First Response and attendance form
- Parents send attendance form
- Parents and Local Authority send Final Evidence
- Local Authority produce the bundle (all collated evidences from both parities)
- Hearing Date
Can I bring witnesses?
Both parties will need to notify the SEND Tribunal who will be attending the hearing using the Attendance Form. This will be sent out with the registration letter, which will also contain the deadline by which this needs to be submitted.
You should call witnesses who will be able to give evidence relevant to your case. It will normally be helpful to have someone from the child or young person’s school or college (such as the SENCO or head teacher). If there is a dispute about the level of the child or young person’s needs, it may be helpful to have a professional witness such as, for example, a speech and language therapist who has worked with the child or young person.
All witnesses will be asked by the SEND Tribunal about the facts of the case. They are not meant to be arguing one ‘side’ or the other. You shouldn’t worry if someone from the child or young person’s school or college is asked to attend as a witness by the LA; it does not mean that they are on the LA’s side.
Parties may appoint a representative (whether a legal representative or not), who can act as a representative or otherwise assist in presenting the party’s case at the hearing. This person will not count as a witness, but you should include them on the Attendance Form and explain they will be representing or assisting you at the hearing.
Further information can be found from:
https://www.ipsea.org.uk/appealing-to-the-send-tribunal
Coram Children’s Legal Centre – Home (childrenslegalcentre.com)
I don’t agree with what is written in Section B about my needs, Section F the provision and/or the school named in Section I of my EHCP, how do I appeal?
In the first instance you should talk to your SEND Officer, explain what you are not happy with and what sections you’d like to change. The Officer should listen to you and consider your request for changes to the draft EHCP. Once you have received your letter and draft EHCP from the Local Authority, the SEND Officer’s details are on the on the top right hand corner of your letter. If there are no contact details then email SENDadmin@derby.gov.uk and ask for the Officer dealing with your case to contact you.
If the LA then decide not to make the changes you have requested and issue the final EHCP, you then have a right of appeal to the SENDIST Tribunal. You cannot appeal a draft ECHP.
Appealing an LA Decision to the SENDIST Tribunal
Once you have the letter from the LA that comes along with the final EHCP, you now have the right to appeal through the SENDIST Tribunal. However, this is a time limited opportunity. It is important to know that you only have 2 months from the date of this letter to make your appeal. You will need to make the decision whether to go to mediation or straight to appeal. – Please see attached information about mediation.
How do I appeal?
If you decide to go straight to appeal, the process is as follows:
- Contact Global Mediation as you will require a mediation certificate in order to lodge your appeal, for this you do not need to attend a mediation meeting. Contact – Global Mediation However if you are ONLY appealing section I (School Placement) then you DO NOT need a mediation certificate.
- Complete the SEND 35 appeal form along with supporting evidence.
- You will need to send to the tribunal the dated Local Authority decision letter, mediation certificate and any supporting evidence along with the appeal form. The email address to send the form to the Tribunal is SEND@justice.gov.uk or it can be posted (it’s recommended via recorded delivery) to: Special Educational Needs and Disability Tribunal, 1st Floor, Darlington Magistrates Court, Parkgate, Darlington , DL1 1RU
- Make sure you have copies of all the paperwork as you won’t receive originals back.
- You have 2 months from the date of the Local Authority decision letter or 1 month from the date of the mediation certificate, whichever is later.
What are my Reasons for appeal?
It is often easier to put these on a separate sheet and write ‘See separate sheet headed Reasons for Appeal’ in the box on the appeal form. This is where you set out why you think the LA’s decision is wrong, try to put in everything you need to say, your full case, at this point. As much as possible, you should try to get together any supporting evidence to submit with your appeal form. In your reasons for appeal, you should refer to this evidence to support your arguments (for example, if you are saying that your child has not made progress despite the support they currently receive, refer to school reports and/or annual review records which show this). Don’t worry if you don’t have everything ready to send straight away; you can submit more evidence after you’ve registered your appeal.
You must send in enough information for the LA to be able to respond.
What evidence do I need?
It is important to obtain any written evidence as soon as you can. It is best to send in all your written evidence with your appeal form because this means you have the main substance of the case set out with supporting evidence right from the start and you may discover more about the LA’s arguments if they are able to respond fully. If you have a good case and evidence, the LA may concede (over turn their decision) rather than continue to fight the appeal.
If you think you need to send in evidence later in the process, you need to submit it by the final evidence deadline you are given by the tribunal.
If you are having difficulty getting information which is relevant to your case from the LA, you can use the Request for Changes form Form SEND7: Request for change – GOV.UK (www.gov.uk) to write to the SEND Tribunal explaining what the document is and ask the SEND Tribunal for a ‘direction’ to make the LA release the document. Unless the LA has a good reason for not providing the document the SEND Tribunal will order the LA to release it.
If you know that an assessment or report will not be available until after the evidence deadline then you need to let the SEND Tribunal know and seek an extension (again using the Request for Changes form). It is possible to apply for late evidence to be submitted after this deadline, including bringing late evidence on the day, but it will be up to the SEND Tribunal as to whether or not this should be accepted. It is always best to tell them in advance.
Examples of evidence include (but not exclusive to):
- Medical reports/diagnosis letters
- School information such as IEP/MEP target sheets, school reports showing learning levels
- Supporting evidence from any other professionals involved – Speech & Language, OT, Psychology reports, Social Care, Family Support Worker etc.
- Any other information that supports your application
- Don’t send original documents, send photocopies or scans. Keep a copy of everything you send, including the form.
Once the appeal is lodged the Tribunal will contact you with a registration letter detailing the timescales for you and the Local Authority to send information to the court.
Timescales will be laid out as follows:
- Local Authority send First Response and attendance form
- Parents send attendance form
- Parents and Local Authority send Final Evidence
- Local Authority produce the bundle (all collated evidences from both parities)
- Hearing Date
Can I bring witnesses?
Both parties will need to notify the SEND Tribunal who will be attending the hearing using the Attendance Form. This will be sent out with the registration letter, which will also contain the deadline by which this needs to be submitted.
You should call witnesses who will be able to give evidence relevant to your case. It will normally be helpful to have someone from the child or young person’s school or college (such as the SENCO or head teacher). If there is a dispute about the level of the child or young person’s needs, it may be helpful to have a professional witness such as, for example, a speech and language therapist who has worked with the child or young person.
All witnesses will be asked by the SEND Tribunal about the facts of the case. They are not meant to be arguing one ‘side’ or the other. You shouldn’t worry if someone from the child or young person’s school or college is asked to attend as a witness by the LA; it does not mean that they are on the LA’s side.
Parties may appoint a representative (whether a legal representative or not), who can act as a representative or otherwise assist in presenting the party’s case at the hearing. This person will not count as a witness, but you should include them on the Attendance Form and explain they will be representing or assisting you at the hearing.
Further information can be found from
https://www.ipsea.org.uk/appealing-to-the-send-tribunal
Coram Children’s Legal Centre – Home (childrenslegalcentre.com)
I’m not happy with the Health and/or Social Care sections of the EHCP, can I appeal that?
Yes you can. Please see section for appealing section B, F and or I – the SEND 35 appeal form will need to be completed. Pages 3 and 5 of this form will relate to health and social care sections of the EHCP. Please note that the Tribunal can make non-binding recommendations not orders on:
- the health and social care needs specified in EHC plans
- the health and social care provision specified in EHC plans related to the learning difficulties or disabilities that result in the child or young person having SEN
- the social care provision specified in EHC plans that is made under Section 2 of the Chronically Sick and Disabled Persons Act 1970
The Local Authority want to cease my child’s EHCP, is there anything I can do?
It will be helpful to meet with the LA and show either that the LA have failed to give adequate (or any) consideration to whether it is necessary to maintain the EHCP or that that there is some other good reason why it must be maintained.
The LA must have considered whether the educational outcomes in an EHCP have been met before deciding to cease to maintain and the case will be about whether the plan is still needed whilst the young person continues their education / training or not.
In both cases, the sorts of evidence you would be looking to gather would be similar to that needed when appealing against a decision about a refusal to issue and could include:
- Evidence from the school or College for example, details of the SEN support to show that such support would not be sufficient to meet the child or young person’s needs
- Expert reports to show that the child or young person’s SEN or requirement for special educational provision have not changed and that they still require the provision within their EHCP
- Evidence from the child or young person themselves about the level of support that they still require and the effect that the cessation of the EHCP would have on them.
If the LA decide not reconsider to cease the EHCP then you will need to decide whether to appeal. You will need to complete the SEND 35 appeal form if you wish to appeal this decision.
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