Government proposes requiring mediation in disputes over SEN provision

Parents and local authorities who disagree over special educational provision for a child could be required to go through mediation before an appeal can be made to the First-tier Tribunal (SEN and Disability), the Department for Education has proposed.

The move is part of a package of measures for overhauling the educational and health support given to such children, with the government hailing the reforms as the biggest shake-up in 30 years.

The Green Paper – Support and Aspiration: A new approach to special educational needs and disability – said: “We believe that it is important to have an independent forum where such disagreements can be resolved and that parents have the right to appeal; we have no plans to remove parents’ right to appeal to the First-tier Tribunal if they disagree with decisions made by local authorities. However, while it is important for this right to continue, we know that parents can find the appeal process stressful.”

The Department for Education suggested it would be better for parents and a better use of public funds if disputes about assessments and statements are resolved earlier and through non-judicial means. It acknowledged the work that the Tribunal is already doing in encouraging resolution of cases before a hearing.

Where mediation has been used by West Midlands authorities, four out of five cases reached a settlement without going to the Tribunal, it said. The Green Paper added that dispute resolution services were “under-used and under-promoted”, with an average of little more than one mediation per authority per year and more than half of authorities reporting no mediations during one year.

The Green Paper said: “We propose that parents and local authorities should always try mediation before a parent can register an appeal with the Tribunal, but we do not want this to affect the time that parents have to appeal or to change parents’ right to appeal.”

The Department for Education also announced that it would pilot giving children the right to appeal and make disability discrimination claims in two or three local authorities with a view to extending the right to all children across England. Such a right has been recommended by the United Nations Committee on the Rights of the Child.

“The pilot will test whether the right to appeal is something that children would use, the best way to handle these appeals, and the cost implications of this change,” it said.

This pilot comes as the Ministry of Justice consults on its proposed changes to legal aid. These would mean that legal help and advice would no longer be available to parents to help them prepare appeals to the Tribunal in SEN cases.

Legal aid will still be available where it is now for parents to make disability discrimination claims on behalf of their children, “that is, legal help and advice for First-tier cases and legal representation for cases that go before the Upper Tribunal”. The MoJ is expected to publish its response to the consultation in late spring.

Other key proposals in the Support and Aspiration Green Paper are:

• Inclusion of parents in the assessment process and, by 2014, a legal right giving them control of funding for the support their child needs.
• Replacement of statements with a single assessment process and a combined education, health and care plan (also by 2014). This will mean that health and social services is included in the package of support along with education
• Ensuring assessment and plans run from birth to 25 years old
• Replacement of School Action and School Action Plus with a new school-based category “to help teachers focus on raising attainment”
• An overhaul of teacher training and professional development
• The setting out by local authorities and other services of a local offer of all services available
• Giving parents “a greater choice” of school, either a mainstream or special school. Parents and community groups will have the power to set up special free schools
• Introducing greater independence from local authorities in the assessment of children’s needs. The government will look at how voluntary groups could coordinate the package of support.

The government said the reforms would address problems such as parents battling to get the support their child needed, SEN statements not joining up education, health and care support, and children falling between the gaps in services or having to undergo multiple assessments.

The Department for Education also said it wanted to tackle “a confusing and adversarial assessment process, with parents’ confidence in the system undermined by the perceived conflict of interest where the local authority must provide SEN support as well as assess children’s needs”.

Children’s Minister Sarah Teather said: “We have heard time and time again that parents are frustrated with endless delays to getting the help their child needs, and by being caught in the middle when local services don’t work together.

“Parents and voluntary organisations have given us overwhelming examples where they have felt let down by local services. At the moment there is an appalling situation where public money is being wasted as children are growing out of equipment, like wheelchairs, before they even arrive. The new single assessment process and plan will tackle this issue and mean that parents don’t feel they have to push to get the services they are entitled to.”

Responding to the Green Paper, Baroness Shireen Ritchie, chairman of the Local Government Association’s children and young people board, said: “The aim of creating a single system for people up to the age of 25 with special educational needs is one which the LGA supports. However, more work needs to be done on how to make this ambition a reality.

“Talk of realigning systems simply does not go far enough. What the system needs is a radical transformation built on a firm legislative base.”

Baroness Ritchie said there needed to be a system that joined up SEN provision in schools with that in further education colleges. She also called for sufficient funding to ensure that council support for SEN to be continued at its current level.

“In the recent local government financial settlement, councils saw funding for early intervention cut by 25%,” Baroness Ritchie added. “Councils have been leading the way on giving parents greater control over their children’s education through personalised budgets, but the government needs to make sure that the funding from health, education and social care is available to meet these costs.”

The Green Paper also sets out proposals to help children that have a learning need, but not necessarily a special educational need.

The consultation runs until 30 June. For more information, click here.

Philip Hoult