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What if the Local Authority decides that an EHC Plan is not necessary and you disagree with this decision?


 

1. You can submit an appeal to SENDIST

Appeals can be submitted either within two months from the date of this letter or within one month of receiving the mediation certificate whichever is the later.  You should submit your appeal to Special Educational Needs and Disability Tribunal (SENDIST).

SENDIST process explained – appeal an education, health and care (EHC) plan decision

Their contact details are:

HM Courts & Tribunals
SENDIST, 1st Floor Darlington Magistrates Court
Parkgate,
Darlington, DL1 1RU.
Telephone Number 01325 289350
Email: [email protected]

 

2. You can contact Halton SENDIASS (SEND Partnership) for further advice

You may wish to contact Halton SENDIASS (SEND  Partnership) for information, advice and support. They can also put you in touch with a mediator who may be able to help you further. 

Tel: 0151 511 7733  
Email [email protected]
Halton SENDIASS has lots of information that you may find useful

3a. You can request a mediation meeting

Mediation is a service for parents/carers whose children have SEND and who have been declined assessment or an EHC Plan or who have had a Plan ceased following review.  It is a requirement for parents/carers to consider mediation before appealing to the Tribunal and they must discuss this with the mediation service. However, this does not apply if the appeal will only relate to the named school/setting in the Plan when parents can proceed straight to appeal.

‘KIDS’ is an organisation the Local Authority has commissioned to offer this service free to parents.  The service gives you the support of an expert in resolving disputes and enables you to be fully involved in decisions that will affect your life and those closest to you. 

See box 3b. KIDS Mediation Service below for more information and contact details

The mediator will be an independent and impartial person who has no involvement with the case or the outcome.  The mediator will also have knowledge of special educational needs and will be trained in working with people to assist them in communicating and resolving disagreements.

If you decide to proceed with mediation, it should take place within 30 days.

If it is found that mediation cannot take place within 30 days, on a matter that can be appealed to Tribunal, then the mediator must issue a certificate within 3 days. You then have the option of appealing immediately or waiting for mediation to take place.

Agreeing or declining to participate in mediation does not affect your right to appeal to the Special Educational Needs Disability Tribunal (SENDIST).

If you do not wish to enter into mediation, it is still necessary to obtain a certificate from the mediation service if you wish to appeal.

3b. KIDS Mediation Services

Parents, carers and young people can use mediation to help resolve disagreements about Education, Health and Care (EHC) needs assessments and Plans, as well as other issues before making an appeal to the SEND Tribunal. Mediation is very successful and means you may not have to go to Tribunal. But if you are not happy with the outcome of mediation, you can still make an appeal to the Tribunal.

  • All our work is free of charge. The service is for children and young people age 0 to 25 and their parents. Mediation is quick and informal and often helps resolve disagreements so that you do not have to go to Tribunal.
  • We arrange Mediation and disagreement resolution between parents and the local authority, as well as the school or college. Health and Social Services can also be involved.
  • Mediation meetings are usually face-to-face. The impartial mediator helps everybody prepare for the meeting and makes sure that everybody’s voice is heard. Mediation meetings take place somewhere near you and within 30 days of your request.
  • At the end of the Mediation meeting, the mediator helps parties put their agreements in writing. The agreement is signed and a copy given to everybody. This forms a Contract between the parties.

Tel: 03330 062 835
Email: [email protected]

Website KIDS Mediation Service

4. SEND Tribunal extended powers (8 October 2021 update)

In line with Schedule 2 of the Special Educational Needs and Disability Regulations 2014 all local areas in England are required to publish details in their local offers for ‘notifying parents and young people of their right to appeal a decision of the local authority to the Tribunal’.. The following information on the extended powers of the SEND Tribunal, is to supplement the information that must already be published on the right to appeal a decision of the local authority, has been included below to support local authorities in fulfilling this duty.

Single Route of Redress – SEND Tribunal Extended Powers

What is the outcome of the National Trial?

The National Trial commenced from 3 April 2018 to 31 August 2021 testing the extended powers for the SEND Tribunal. The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the Tribunal’s extended powers, which can be seen here.

Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, following the end of the National Trial, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans..

Previously, you have only been able to appeal the educational aspects of EHC plans.  The continuation of the extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, 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.

What does this mean for parents and young people?

If you are unhappy with a decision not to issue an EHC plan, or with the special educational content or placement in the plan, you can make an appeal to the SEND Tribunal.  You are also able to request recommendations about the health and social care content of the plan at the same time, provided there is also an education element. This will mean the Tribunal will take a more holistic, person-centred view of the needs of the child or young person.

This does not prevent you also complaining about other aspects of your disagreement through other complaint procedures.  You should seek advice about the different routes available, including from your local Information Advice and Support Service (IASS).

If the SEND Tribunal makes a recommendation about health or social care elements of an EHC plan, this is non-binding. The local authority and/or health commissioner is generally expected to follow such recommendations, but they are not legally binding. Where they are not followed, the reasons for not following them must be explained and set-out in writing to you and to the Department for Education through the evaluators. If they are not followed, you can complain to the Local Government and Social Care Ombudsman (LGSCO) or Parliamentary and Health Service Ombudsman (PHSO) or seek to have the decision judicially reviewed. Further information on the roles of these bodies can be found on their websites.

When can a parent or young person request recommendations about the health and social care elements of an EHC plan?

You can request the Tribunal makes recommendations about the health and/or social care aspects of EHC plans as part of an appeal relating to:

  • the description of the child/young person’s special educational needs in an EHC plan
  • the special educational provision specified in an EHC plan
  • the school or other educational institution named in an EHC plan
  • a decision by the local authority not to issue an EHC plan
  • a decision by the local authority not to carry out a re-assessment for a child/young person who has an EHC plan
  • a decision by the local authority not to amend an EHC plan following a review or re-assessment
  • a decision by the local authority to cease to maintain an EHC plan

What does this mean for local areas?

The SEND Tribunal extended powers places responsibility on local authority SEND teams to:

  1. Inform parents and young people of their new rights through decision letters and the local offer
  2. Provide evidence to the Tribunal from the health and social care bodies in response to any issues raised within the timeframe set by the Tribunal, seeking permission to bring additional witnesses to the hearing as necessary

It also places responsibility on health and social care commissioners to:

  1. Respond to any request for information and evidence within the timeframe set by the Tribunal
  2. Send a witness to attend the hearing as required
  3. Respond to the parent/young person and the LA SEND team within 5 weeks of a recommendation being made, setting out the steps they have decided to take or giving reasons why they are not going to follow the recommendation.

How can a parent or young person request a health or social care recommendation?

If you wish to appeal against a local authority decision on any of the grounds above and want to request that the Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal. Advice on making SEND appeals to the Tribunal and the appeal form is available on the GOV.UK website and further guidance can be found in the toolkit of support.

As a parent or young person, do I have to consider mediation?

Before you can register an appeal with the Tribunal, you must contact a mediation adviser within two months of the LA decision you wish to appeal and consider whether mediation might be a way to resolve your disagreement with the LA. If you want to appeal only about the school or other institution named in the EHC plan you do not have to contact a mediation adviser.

You can go to mediation about the health and social care elements of an EHC plan, but this is not compulsory. You can request recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, provided there is also an education issue about which you are appealing.

Once a mediation adviser has been contacted, or once you have taken part in mediation, you will be issued with a certificate.  This will be necessary if you are still unhappy and wish to progress to an appeal with the Tribunal. An appeal to the Tribunal must usually be made within two months of the decision about which the appeal is being made or one month following the issuing of the mediation certificate, whichever is the later.

If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and/or social care aspects of the EHC plan.  However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal.  It does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.

Help and further information

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