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#SENDReview Answer Consultation Questions 6 & 7

We're helping you answer the consultation questions for the SEND Review Green paper. You can use these prompts to answer them on the Government website, Numbers 6 and 7 are related so are together below, the rest are accessed from here.

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Our single answer question forms have now closed

Answering the questions in the SEND Review is not straightforward. There are complicated issues to consider if you want to do it properly. Below we have ponder points that you can use to help you answer the consultation

Even though our single answer forms have closed, you can still answer the consultation on the main Department for Education website or email your responses to: SENDReview.CONSULTATION@EDUCATION.GOV.UK

Answering the questions in the SEND Review is not straightforward. There are complicated issues to consider if you want to do it properly.

Even though our single answer forms have closed, you can still answer the consultation on the main Department for Education website or email your responses to: SENDReview.CONSULTATION@EDUCATION.GOV.UK

A good idea is to:

  • copy and paste the following prompts into the form below and add your answers under each one,
  • copy and paste them into a notes app or word doc to answer, then paste the whole lot into the form below

The relevant SNJ articles to help you understand these questions are this one about Chapter 2 by Catriona Moore and this one about SEND mediation by Margaret Doyle. We also have other posts about the SEND Tribunal here.

In brief, the Government wants to reduce the number of appeals to the SEND Tribunal. Parents and SEND lawyers believe the most obvious way would be to require local authorities to comply with the law, with punitive consequences for failure. If they did this, there would be no grounds to appeal, and the Tribunal would be much less busy. 

However,

Questions 6 & 7, as stated on the Government website:

The answer form for both questions is at the end.

Question 6 - To what extent do you agree or disagree with our overall approach to strengthen redress, including through national standards and mandatory mediation? Strongly Agree, Agree, Neither Agree nor Disagree, Disagree, Strongly Disagree. If you selected Disagree or Strongly Disagree, please tell us why, specifying the components you disagree with and alternatives or exceptions, particularly to mandatory mediation.

Translation: What do you think of our plans to change how you can challenge decisions made about SEND by your local authority? What other ideas do you have?

Ponder Points:

  • Do you think mandatory mediation is a good idea? Would it make it quicker for children to get the support they are entitled to? Why/why not?
  • Mandatory mediation was first floated in the 2014 reforms, but opposition forced the idea to be dropped. What, if anything, has changed?
  • We already have forms of mandatory mediation as parents are required to consider if it would be useful and obtain a mediation certificate if not. Is the government right to think parents shouldn't be allowed the choice?
  • Would it slow down access to redress (and children's support) by forcing parents to go through a possibly fruitless mediation process before they can appeal?
  • If mandatory mediation does go ahead, should parents be allowed to register an appeal anyway so they don't lose time?
  • The Green Paper states that ‘national standards’ will set clear expectations about the timescale for mediation to take place and that LA attendees must be decision-makers. This is already set out in the 2014 regulation but doesn't happen. What should happen if LAs refuse to participate seriously?
  • What evidence or research has the DfE used as the basis for arguing for more compulsion? If there is none, is the right step to get some before making changes? What are your thoughts?
  • Is it more important to first improve the decision-making process by ensuring SEND decision panels have accurate and up-to-date information including personal ‘testimony’ from the child and their family?
  • Is requiring LAs to mediate a disincentive to improve initial decision-making and communication with families?
  • Has mandatory mediation led to more accountability and better outcomes since 2014? Mediation is the default position now for some LAs in responding to a SEND dispute. 
  • The Green Paper suggests if mandatory mediation ‘does not prove effective in strengthening earlier redress’, a possible additional stage, called ‘independent review’, would be introduced as another mandatory step before an appeal can be lodged. How long would it take for redress to happen for disabled children with these added steps?
  • Who will fund all these additional steps and for training more mediators?
  • Is it the wrong question - should the DfE be trying instead to cut disputes by encouraging lawful decision-making by LAs?
  • Should mediation be made more easily available at earlier stages in the process - perhaps in the form of the independent supporter?
  • Is forcing mediation right for vulnerable parents who may not understand the system, especially considering the power imbalance between parents and local authorities.
  • What are the implications for children and young people whose families are unable to pursue mediation or an appeal, for whatever reason?
  • Can we imagine a system where mediation is more than a settlement mechanism, where it is valued as a collaborative process of change? 
  • And can we imagine a system where mediation, the LGSCO and the Tribunal work in collaboration, as complementary accountability processes that offer the best chance of holistic and sustainable oversight of SEND decision-making?
  • If mediation was mandatory, how would it work for families who want to appeal health and social care aspects as well as education? These families can now do this under extended powers given to the SEND Tribunal. These powers, tested under the National Trial, will continue (although they are not yet binding - should they be?)

Question 7 - Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track? Please give a reason for your answer with examples, if possible.

Translation: Does the SEND First Tier Tribunal have the right powers when it comes to disability discrimination by LAs, schools and other education settings? Do they get children back to where they should be? Why?

Disabled children have a right to "reasonable adjustments" and not to be discriminated against because of their disability. Parents, carers and young people can pursue a claim about disability discrimination in education at the SEND Tribunal. Public bodies must comply with the Public Sector Equality Duty. Breaches may be challenged by making through Judicial Review.

The SEND Tribunal (FTT) has no power to award financial compensation but can ‘The tribunal may make such order as it thinks fit’ such as to remove or reduce the adverse effect of the action that led to the discrimination claim. We can surmise that this question for the SEND Review has come about after the landmark case here where a child with ADHD won a discrimination case after being excluded because of actions related to his disability and the school was ordered to reinstate him. The Upper Tribunal found the FTT did have power to make binding orders in a disability discrimination claims, which could, in some cases, include reinstatement after unlawful exclusion.

The decision has implications for schools thinking about excluding disabled children. However, by the conclusion at the High Court, the family had spent a lot of money and it had left them and the child emotionally scarred. This case also considered an apology could be an appropriate form of redress if was seen to have value, for example, if it helps alleviate emotional or psychological harm.

Ponder Points:

  • Should the First Tier Tribunal be able to award financial compensation to a child and their family who have been discriminated against? If so, why?
  • What other redress might be appropriate other than reinstatement and/or and apology?

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