There are a number of different statutory complaints procedures to deal with disputes relating to education, health and social care

The Local Authority:

You may wish to make a complaint about a local authority (“LA”) if they are failing in their duties – whether by failing to provide what they are legally required to provide, by causing significant delay, or by failing to comply with the law.

The first step is always to follow the LA’s own complaints procedure. How to complain should be explained in the LA’s local offer; if the LA has not put its complaints policy on the website then ask for a copy of the complaints procedure from their offices. This should set out the time limit for replying to a complaint. 

Bexley Councils complaint procedures can be found here: Complaints Procedure – Bexley Local Offer

The Local Government and Social Care Ombudsman or Parliamentary and Health Ombudsman (LGSCO):

The LGSCO is able to investigate complaints about certain matters and has wide ranging powers to make recommendations to remedy injustice including an apology or compensation.

Before the LGSCO can look at your complaint, you must complain to the organisation involved and give it a chance to sort out the problem.

For more information on how to complain to the Local Government and Social Care Ombudsman or Parliamentary and Health Ombudsman click HERE

The First-tier SEND Tribunal (Special Educational Needs and Disability) 

SEND Tribunal handle appeals against schools or local authorities for discriminating based on a child or young person’s disability.

The SEND Tribunal can make non binding  recommendations about health and social care issues.

SEND Tribunal also make decisions relating to Education, Health and Care (EHC) plans.

This includes:

A refusal to carry out an EHC Needs Assessment, 

Following an EHC Needs Assessment, a refusal to issue an EHC Plan

Appealing the contents of the EHC Plan

Appealing against the education settling named in the EHC Plan 

A notice to Cease to Maintain ( stop providing ) the EHC Plan

There are strict deadlines for bringing an appeal to the SEND Tribunal.

For full information regarding the statutory deadlines, the process of Mediation and SEND Appeals please go to our website page  Get Informed – SENDist Tribunal- Bexley IASS

Mediation:

Your right to mediation are set out in section 52 of the Children and Families Act (CFA) 2014.

This says you have a right to try mediation where a decision is made which you could appeal to the SEND Tribunal, or where an EHC plan is made, amended or replaced.

Mediation is a more informal way of trying to settle the dispute between you and the local authority compared to an appeal.

Mediation must be considered before a SEND Tribunal in relation to special educational needs (SEN) and provision can be issued with the tribunal but Mediation is not required if the only challenge you are making is against the choice of education provision named in Section I of the EHC Plan. 

An independent mediators role is to help all parties reach agreement on the points of dispute. 

For more information on Mediation, including resources to support you in preparing for the mediation meeting please go to the Mediation page of this website:  Get Informed – Disagreement Resolution & Mediation – Bexley IASS

Disagreement resolution

Local authorities are also under a duty to offer disagreement resolution arrangements to avoid or resolve disputes.

For example: 

• How Local Authorities or education providers (early years, schools, colleges) carry out their education, health and care duties for children or young people with SEND.
• About the SEND provision made by education providers
• About health and social care provision during all the stages of the EHC plan process.
• Disagreement Resolution can also be used to resolve school exclusions involving children or young people with SEND.

For more information on Dispute Resolution including resources to support you in preparing for the meeting please go to the Dispute Resolution & Mediation page of this website:  Get Informed – Disagreement Resolution & Mediation – Bexley IASS

Disability Discrimination:

Nurseries, Schools and Colleges must take steps to ensure disabled children and young people are not substantially disadvantaged due to their disability. ‘Reasonable adjustments‘ is the term used to describe these in law.

The SEND Code of Practice summarises the Equality Act duty and says Nurseries, Schools and Colleges must:

• Not directly or indirectly discriminate against, harass or victimise disabled children and young people
• Make reasonable adjustments, including the provision of auxiliary aids and services, to ensure that disabled children and young people are not at a substantial disadvantage compared with their peers.

( This duty is anticipatory which means thought should to be given in advance to what disabled children and young people might require and what adjustments might need to be made to prevent that disadvantage ) 

If you feel your disabled child has been discriminated against (within the last six months) you could consider complaining to the SEND Tribunal.

For more information on disability discrimination click HERE

Judicial Review: 

Judicial review is the process of asking the court to decide whether the decision of a Local Authority (public body) has been made in a lawful, fair and reasonable way

Some examples may include:

• Failure to provide support specified in sections F and G of an Education Health and Care Plan (EHCP). Note that this is only practicably possible if provision is properly specified and detailed in these sections.
• Failure to implement the school placement in Section I.
• Failure to provide full-time education.
• Failure to provide the full national curriculum to children eligible to receive it.
• Failure to provide education out of school for children who for any lawful reason are unable to attend school.
• Unlawful exclusion from school.
• Unlawful decisions of appeal panels who have upheld permanent exclusions.
• Decisions of school admission appeal panels.
• Failure to provide school transport, or the decisions of independent panels considering school transport issues.
• Refusal of local authorities to comply with Special Educational Needs and Disability Tribunal decisions or directions.
• Failure to meet time limits during the EHC needs assessment process

Judicial reviews must be brought promptly and within three months of the date of the decision.

Judicial review is a last resort. It should be used only after all other efforts to work with the Local Authority to resolve the issue have failed.

Before you can seek Judicial review, you must the Local Authority the opportunity to rectify the situation.

This means you must make the Local Authority aware of your intentions to seek Judicial review.

You must do this by submitting a ‘pre-action protocol letter’ to the Local Authority. 

This is a formal legal route, therefore it is strongly advisable to seek legal representation if you are considering this option.

Most Judicial Review challenges can be brought in the child’s name which means that the child may be financially eligible for legal aid and there would be no cost to parents to take this to court.

There is no legal aid available for any part of the process up to and including creating and sending the pre-action protocol letter. 

However, SOS!SEN may support you to prepare the Pre Action Protocol letter at a cost the organisation: Applying for a pre-action protocol letter (The PAP Project) – SOS!SEN (sossen.org.uk)

Please check here if you are eligible for legal aid for the Judicial Review process: Am I eligible for Legal Aid