Resolving disagreements (special educational needs and disabilities)

All councils must make sure that parents and young people have access to independent disagreement resolution services.

Decisions about provision for children and young people with SEN should be made as soon as possible. However, where agreement cannot be reached, early resolution of disagreements benefits parents and young people and can avoid unnecessary stress.

Using a disagreement resolution service

Using a disagreement resolution service is voluntary and has to be with the agreement of all parties.

The Children and Families Act 2014 makes a distinction between disagreement resolution arrangements and mediation.

If parents or young people want it to, mediation can take place following decisions by the council not to carry out an EHC needs assessment, not to draw up an EHC plan, after they receive a final EHC plan or amended plan, following a decision not to amend an EHC plan or a decision to cease to maintain an EHC plan

These mediation arrangements complement the disagreement resolution arrangements. The disagreement resolution arrangements are designed to resolve disagreements about the performance of duties, SEN provision, disagreements over health and social care provision and disagreements between health commissioners and local authorities and are voluntary for both parties.

Disagreement resolution services can be used at any time, if both parties agree, including while an EHC needs assessment is being conducted, while the plan is being drawn up, after the plan is finalised or while an appeal is going through the Tribunal process.

The service must be independent of the council. Parents and young people can also access informal support in resolving disagreements through Durham Special Educational Needs and Disability (SEND) Information Advice and Support Service and between 2014 and 2016, with the help of independent supporters.

They can provide a quick and supportive way of resolving disagreements. Used early in the EHC assessment process and the development of the EHC plan, they can prevent the need for mediation, once decisions have been taken in that process, and appeals taken to the SEND Tribunal.

Types of disagreement

The disagreement resolution service is to help resolve four types of disagreement or to prevent them from escalating further:

The first is between parents or young people and local authorities, the governing bodies of maintained schools and maintained nursery schools, early years providers, further education institutions or the proprietors of academies (including free schools), about how these authorities, bodies or proprietors are carrying out their education, health and care duties for children and young people with SEN, whether they have EHC plans or not. These include duties on the council to keep their education and care provision under review, the duties to assess needs and draw up EHC plans and the duty on governing bodies and proprietors to use their best endeavours to meet children and young people's SEN.
The second is disagreements between parents or young people and early years providers, schools or post-16 institutions about the special educational provision made for a child or young person, whether they have EHC plans or not.
The third is disagreements between parents or young people and Clinical Commissioning Groups or councils about health or social care provision during EHC needs assessments, while EHC plans are being drawn up, reviewed or when children or young people are being reassessed. Disagreement resolution services can also be used to resolve disagreements over special educational provision throughout assessments, the drawing up of EHC plans, while waiting for Tribunal appeals and at review or during reassessments.
The fourth is disagreements between councils and health commissioning bodies during EHC needs assessments or reassessments, the drawing up of EHC plans or reviews of those plans for children and young people with SEN. In relation to EHC plans, this includes the description of the child or young person's education, health and care needs and any education, health and care provision set out in the plan. These disagreements do not involve parents and young people.

A decision by parents and young people not to use disagreement resolution services has no effect on their right to appeal to the Tribunal and no inference will be drawn by the Tribunal if the parties to a disagreement have not used the disagreement resolution services. Disagreement resolution meetings are confidential and without prejudice to the Tribunal process and the Tribunal will disregard any offers or comments made during them. Partial agreement achieved by use of disagreement resolution services can help to focus on the remaining areas of disagreement in any subsequent appeal to the Tribunal.