What if I do not agree

This information is about what you can do if a child/YP has special educational needs (SEN) or a disability and you are unhappy about the help they are getting.

School/college concerns, Disagreement Resolution
Appealing an EHCP decision, Disability Discrimination appeals, school exclusion appeals, Local Government & Social Care Ombudsman

Sections

What if i do not agree with decisions about SEN provision?

This information is about what you can do if your child or young person (YP) has special educational needs (SEN) or a disability and you are unhappy about the help being given in:

Schools, including non-maintained special schools
Further education colleges and sixth form colleges
Academies (including free schools, university technical colleges and studio schools)
Specialist Resource Base (SRB)
Independent schools and independent specialist providers approved under section 41 of the Children’s and Families Act 2014
All early years providers in the maintained, private, voluntary and independent sectors that are funded by the Local Authority

Concerns relating to an educational setting

The first step is to talk to the teacher/tutor, if you need to discuss things further you can speak to the Head Teacher/Course Director or to the Special Educational Needs Coordinator (SENCo). We would advise you ask for a meeting at the setting to discuss your concerns.

It might be helpful to ask a friend or relative to attend a meeting with you. It is a good idea to keep notes or have records of what they have done and have told you. We have a meeting planner template in the booklets section of our website which may help.

If you think that the setting could do more, you can complain using the complaints procedure available on their website or ask for a copy.

If you have followed the setting’s complaints procedures and you are unhappy with the outcome the next step would be to complain to:

The Department for Education (“DfE”), if you are complaining about a maintained school; or
The Education and Skills Funding Agency (“ESFA”), an executive agency of the DfE, if you are complaining about an academy, a free school, a college or an apprenticeship provider.

Disagreement Resolution Services

The disagreement resolution service is there to help resolve disagreements between parents or young people and the organisations that are responsible for making provision for children and young people with special educational needs. Disagreement Resolution is voluntary for all parties.

A parent or young person can ask for disagreement resolution at any time during the SEND process. The dispute can be about Education, Health or Social Care provision. . Access to disagreement resolution covers all children and young people with SEND - whether or not they have an Education, Health and Care Plan (EHC Plan). Disagreement Resolution meetings are conducted in the same way as mediation meetings Mediators manage the meeting, and make sure everyone is fully heard and treated fairly and ensure that the focus of the meeting stays on the needs of the child or young person.

In Norfolk this service is provided by Kids. They are independent and will provide a trained mediator to facilitate a discussion. The purpose is to look for a way forward that all the parties accept. The service is free and confidential .

Kids
Contact 03330 062 835
senmediation@kids.org.uk
www.kids.org.uk/mediation

Appealing an EHCP decision to SENDIST

The SEND Code of Practice says that parents and young people can appeal to the SENDIS Tribunal about:

A decision by a Local Authority not to carry out an EHC needs assessment or re-assessment
A decision by a Local Authority that it is not necessary to issue an EHCP following an assessment
The description of a child or young person’s SEN specified in an EHCP, the special educational provision specified, the school or other institution or type of school or other institution (such as a mainstream school/college) specified in the plan or that no school or other institution is specified
An amendment to these elements of the EHCP
A decision by a Local Authority not to amend an EHCP following a review or re-assessment
A decision by a Local Authority to cease to maintain an EHCP (11.45)

If you wish to register an appeal with the First Tier Tribunal (SEN and disability) you first have to consider whether to take part in mediation. This is called mediation information, advice and support (MIAS). If you decide not to use mediation after discussing the options tell the mediation adviser, they will send you a certificate within 3 working days and you can then register your appeal. You do not have to use mediation if you do not want to – you only have to consider whether to or not.

The Local Authority must tell you about mediation and who to contact for the initial advice when they send you their decision. You must contact the mediation adviser at Kids within two months of getting the decision from the LA.

There are two exceptions to this rule. You can register an appeal without considering mediation first if the appeal :

Is only about the name of the school or college named in section I of the plan, the type of school or college specified in the plan or the fact that no school or other institution is named
Disability Discrimination

If you choose mediation the Local Authority must take part. The meeting will be arranged within 30 days.

An independent mediator runs the meeting. When the meeting has finished the mediator issues you with a certificate within 3 working days. You need this certificate if you still want to register an appeal with the First Tier Tribunal. You have two months from the date of the final EHCP/final EHCP after annual review or the decision letter following an annual review (decision to cease or maintain) OR one month from the date on the mediation certificate, which ever is the later. Mediators must be trained and accredited and are independent of the Local Authority and Clinical Commissioning Group. This service is provided in Norfolk by Kids Mediation Service.

You can download the correct form from the SENDIST website.

Form 35—Refusal to issue an EHCP, appeal section B, F and I and health and social care recommendations
Form 35a—Refusal to assess for EHCP

Photocopy the paperwork you are asked to provide and send to SENDIST by email or post. Ensure you read through all the paperwork that comes back from the tribunal and keep a record of all important dates. It is helpful to continue to discuss changes and options with the Local Authority to see if a decision can be made which you all agree on. You can withdraw the appeal once you have the changes in writing. The SENDIST website has helpful videos on what to expect at a tribunal hearing.

The SENDIST Disability Discrimination Appeal

You can download the correct form from the SENDIST website.

SEND 4a—Claim by a parent
SEND 4b—Claim by a YP

Before your appeal you need to prepare your claim, this involves gathering as much evidence as possible to support your case. There is a time limit for making a claim. The claim must be received by the tribunal within six months of the last act of alleged discrimination. The tribunal will first decide if the child or YP has a disability as described by the Equality Act 2010 before going further with the claim.

If you are making an appeal against a private nursery, further education college or a local authority this would need to be brought in the County Court. If you wish to bring a claim in the County Court, you will need to seek advice from a solicitor. Please see our Disability Discrimination booklet available on our website.

First-tier Tribunal (SEND)

www.gov.uk/courts-tribunals/first-tier-tribunal-special-educational-needs-and-disability

Contact—01325 289350

Email—sendistqueries@hmcts.gsi.gov.uk

Appealing a school exclusion

You can appeal against a school exclusion and your case can be put forward to the governing body of the school. For a fixed term exclusion of less than 5 days they do not have to meet with you but must consider your views.

If the governors agree with the permanent exclusion you may then ask the school for an Independent Review Panel (IRP) within 15 school days. If you feel your child’s SEN is relevant to the exclusion you may include in the request that the local authority or Academy Trust appoint an SEN expert to attend the review.

The IRP panel is set up by the Local Authority and must have 3 or 5 members. The hearing must be held within 15 school days after the notice of appeal is received by the school. You are entitled to take a friend or advocate. You can find out more in our Exclusions booklet.

Local Government and Social Care Ombudsman and Judicial Review

If you disagree with how the Local Authority has acted and would like to make a complaint you can contact them on 0344 800 8020 or visit www.norfolk.gov.uk.

The Local Government and Social Care Ombudsman (LGSCO) investigates complaints which have not been resolved by the Local Authority complaints procedure, and consider if correct actions and procedures have been followed. There is an expectation that you will have followed the Local Authority complaints procedure first before going to the LGSCO. If the case is serious and the child is missing education then the LGSCO may start assessing before going to the Local Authority. See The SEND Code of Practice 11.89 on our website.

If the LGSCO finds the Local Authority is at fault they can ask them to reconsider and made recommendations. These recommendations can include compensation or an apology. The Local Authority does not have to carry out the recommendations, but they usually do.

Parents and young people can apply to have their concerns taken to Judicial Review (High Court). It will consider how the Local Authority and public bodies have carried out duties for example: how decisions were made in an EHCP or failure to provide provision outlined in the EHCP. The costs of going to Judicial Review can be very high if a case goes ahead. You may be able to obtain funding through legal aid.

check if you are eligible for legal aid

www.gov.uk/check-legal-aid