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Mediation and Resolution

Notice to all Early Years providers, Schools and Post 16 institutions: charges to Early Years providers, Schools and Post 16 Institutions in relation to statutory requirements arising from Children and Families Act 2014 to arrange Disagreement Resolution, C&F Act 2014

The Children and Families Act 2014 imposed a new duty on Local Authorities to make arrangements to ensure Disagreement Resolution (DR) is available to parents of children with SEN and young people with SEN. In the new SEND Code of Practice young people are those young people aged 16 and over and who are beyond compulsory aged education.

·         You can find full details of these requirements in Appendix 1 (section 57 of the C&F Act 2014)  and Appendix 2 (relevant extracts from the Send Code of Practice: 0-25  2015)

The purpose of this briefing is to

·         reassure early years providers, schools and post 16 institutions  that arrangements to satisfy these  statutory duties are now in place and DR is available

·         clarify the circumstances where parents and young people can make requests for DR and where you will be responsible for the cost of funding these

·         set out the charging structure

From September 1st 2014 parents of children with SEN and young people with SEN are able to request DR when they have a disagreement with 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  either

·         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, or

·         where there 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 Local Authority has made contractual arrangements with Global Mediation services to ensure fully qualified and experienced mediators are available should DR be requested and to ensure we are fully compliant with the duties imposed on us in relation to both Mediation. Mediation Advice and Disagreement Resolution services.

 

You do not have to do anything at this point.

 

What happens if a parent or young person requests DR?

·         If a parent or young person request DR and you agree to this as a way of supporting the early resolution of any disagreements you will need to confirm your willingness to participate to the provider (Global Mediation).  Please alert you LA SEN officer as well.

·         You will need to participate to the disagreement resolution within 30 days

·         You will be charged for this service, currently the cost is £1,000.00 per Disagreement Resolution meeting.

·         The provider (Global Mediation) of the Mediation and DR services will make the practical arrangements for this including securing an appropriate venue to host the DR meeting. This is all included in the price. You must ensure you have the authority to agree DR and that your organisation has the resources to pay for it before agreeing to participate.

·         You will be invoiced from the provider within 1 month of the disagreement resolution meeting.

·         Use of DR is voluntary and has to be with the agreement of all parties

·         This service, whilst commissioned by the LA is provided by an external, impartial and independent provider.

·         Please note that disagreement resolution arrangements cover all children and young people with SEN, not just those who are being assessed for or have an EHC plan. They can provide a quick and non-adversarial way of resolving disagreements.

Appendix1: Section 57 of the Children and Families Act 2014 - Resolution of Disagreements

1.     A local authority in England must make arrangements with a view to avoiding or resolving disagreements within subsection (2) or (3).

2.     The disagreements within this subsection are those about the exercise by the local authority or relevant bodies of their functions under this Part, where the disagreement is between

a.     the local authority or a relevant body, and

b.    the parents of children, and young people, in the authority's area.

3.     The disagreements within this subsection are those about the exercise by the local authority of its functions relating to EHC needs assessments, the preparation and review of EHC plans, and re-assessment of educational, health care and social care needs, where the disagreement is between—

a.     the local authority and a responsible commissioning body, or

b.    a responsible commissioning body and the parents of children, or young people, in the authority's area.

4.     A local authority in England must make arrangements with a view to avoiding or resolving, in each relevant school or post-16 institution, disagreements within subsection (5).

5.     The disagreements within this subsection are those about the special educational provision made for a child or young person with special educational needs who is a registered pupil or a student at the relevant school or post-16 institution concerned, where the disagreement is between—

a.     the child's parent, or the young person, and

b.    the appropriate authority for the school or post-16 institution.

6.     Arrangements within this section must provide for the appointment of independent persons with the function of facilitating the avoidance or resolution of the disagreements to which the arrangements apply.

7.     For the purposes of subsection (6) a person is not independent if he or she is employed by any of the following—

a.     a local authority in England;

b.    a clinical commissioning group;

c.     the National Health Service Commissioning Board.

8.     A local authority in England must take such steps as it thinks appropriate for making the arrangements under this section known to—

a.     the parents of children in its area with special educational needs,

b.    young people in its area with special educational needs, and

c.     the head teachers, governing bodies, proprietors and principals of schools and post-16 institutions in its area.

9.     A local authority in England may take such steps as it thinks appropriate for making the arrangements under this section known to such other persons as it thinks appropriate.

10.  In this section— "relevant body" means—

a.     the governing body of a maintained school, maintained nursery school or institution within the further education sector;

b.    the proprietor of an Academy;

"relevant school or post-16 institution" means—

a.     a maintained school;

b.    a maintained nursery school;

c.     a post-16 institution;

d.    an Academy;

e.     an independent school;

f.     a non-maintained special school;

g.    a pupil referral unit;

h.     a place at which relevant early years education is provided;

"responsible commissioning body", in relation to any particular health care provision, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person concerned.

11.  For the purposes of this section, the "appropriate authority" for a relevant school or post-16 institution is—

a.     in the case of a maintained school, maintained nursery school or non-maintained special school, the governing body;

b.    in the case of a post-16 institution, the governing body, proprietor or principal;

c.     in the case of an Academy or independent school, the proprietor;

d.    in the case of a pupil referral unit, the management committee;

e.     in the case of a place at which relevant early years education is provided, the provider of the relevant early years education

Appendix 2: SEND Code of Practice: 11.6 - 11.10 Disagreement Resolution Services

Disagreement resolution services

11.6 Local authorities must make disagreement resolution services available to parents and young people. Use of the disagreement resolution services is voluntary and has to be with the agreement of all parties. The service, while commissioned by it, must be independent of the local authority – no-one who is directly employed by a local authority can provide disagreement resolution services. Parents and young people can also access informal support in resolving disagreements through the local impartial Information, Advice and Support Service and, between 2014 and 2016, with the help of independent supporters.

11.7 Disagreement resolution arrangements cover all children and young people with SEN, not just those who are being assessed for or have an EHC plan, and a range of disagreements, as set out in paragraph 11.8. They are available to parents and young people to resolve disagreements about any aspect of SEN provision, and health and social care disagreements during the processes related to EHC needs assessments and EHC plans set out in Chapter 9. They can provide a quick and non-adversarial way of resolving disagreements. Used early in the process of EHC needs assessment and EHC plan development they can prevent the need for mediation, once decisions have been taken in that process, and appeals to the Tribunal.

11.8 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 local authority 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 CCGs or local authorities 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 re-assessments

* the fourth is disagreements between local authorities and health commissioning bodies during EHC needs assessments or re-assessments, 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.

11.9 Local authorities must make the availability of disagreement resolution services known to parents, young people, headteachers, governing bodies, proprietors and principals of schools and post-16 institutions in their areas and should make them known to others they think appropriate. Details of the disagreement resolution arrangements must be set out in the Local Offer.

11.10 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 appeals to the Tribunal.