A version of this article first appeared in the Law Society Gazette (12 November 2021), and is reproduced here by kind permission. 

IPSEA submitted a response to a recent call for evidence by the Ministry of Justice (MoJ) on alternative methods of dispute resolution, which aims to reduce the number of cases going through the court process “unnecessarily”. 

The Government wants to see more people using “less adversarial options” than appealing to the SEND Tribunal. Their starting point is that the number of legal appeals must be reduced. 

Our response 

IPSEA’s starting point in our response was different. We disagree that a reduction in the number of appeals is an appropriate end in itself. While some problems could be resolved at an earlier stage through discussion and informal means of dispute resolution, there will always be cases where judicial scrutiny is necessary. This must remain a meaningful option to families of children and young people with SEND. 

Our evidence to the MoJ was clear that any changes to the courts and tribunals system must take account of the particular factors relating to the SEND Tribunal and the families who rely on it. One of these factors is the inequality that exists in SEND disputes. These cases involve individual parents, carers or young people challenging a public body. A dispute over a child or young person’s special educational provision is very different, for example, to a private family law dispute or an employment dispute, where there is generally a much greater equality of arms. 

The SEND reforms introduced by the Children and Families Act 2014 were intended to make the system of supporting children and young people with special educational needs more collaborative and less confrontational. In practice, however, families frequently experience fraught and lengthy journeys to get the support their children need and to which the law entitles them. 

What is the aim of dispute resolution? 

The aim of dispute resolution in relation to SEND should be to resolve all disputes promptly and at an early stage, so that support can be put in place with minimum delay for the child or young person concerned. Appealing to the SEND Tribunal should not be the only realistic way that families can secure the special educational provision their children need. 

However, dispute resolution is more useful in some types of SEND disputes than others. For example, mediation tends to work well in ‘refusal to assess’ cases, as this is often the first time, in our experience, that a local authority fully engages with the evidence about a child or young person’s special educational needs. But it may not be at all appropriate in complex appeals about special educational provision (or in some cases health and social care provision), where a child or young person’s identified needs must be met by law.  

Families will always need the option of a Tribunal appeal 

Dispute resolution services must be based on a sound knowledge and understanding of the SEND legal framework. Parents need an assurance that they still have the option of pursuing an appeal to the SEND Tribunal if their child’s needs remain unmet. They also need to be assured that the aim of dispute resolution is not to persuade them to give up their child’s legal entitlement to provision that meets their particular needs, or to agree to a solution that is less beneficial for their child than a ruling from the Tribunal would be. 

We are firmly opposed to any suggestion that mediation should ever be compulsory. This would be an added potential hurdle for families on the obstacle course of obtaining the right support for their child – and while it is happening, the child’s needs may remain unmet. (In addition, while a local authority cannot lawfully refuse to participate in mediation, we know from talking to families that this happens.) 

The vast majority of SEND Tribunal cases are currently determined in favour of families because local authorities routinely fail to make decisions that comply with the law. From our work, it’s clear that the legal duties set out in the Children and Families Act 2014 are still not fully understood or observed by local authorities. 

Rather than focusing on a variety of methods for resolving disputes, a better solution would be to make local authorities accountable for complying with their obligations, so that disputes are much less likely to arise in the first place.