The Special Educational Needs Appeal System and ADR in England Neville Harris University of Manchester

Context Children with SEN comprised 21% of school pop. in England January % of the school pop. (220,890 children) had statements of SEN.

Background Education Act 1981: Local appeal committees (statement contents) and the Secretary of State (statement making). Education Act 1993: Special Educational Needs Tribunal. Code of Practice. SEN and Disability Act 2001: Special Educational Needs & Disability Tribunal. Discrimination cases under DDA Case management. Local authorities to facilitate dispute avoidance and disagreement via independent persons: ‘reducing appeals’. Tribunals, Courts and Enforcement Act 2007: First-tier Tribunal (Health, Education and Social Care Chamber)

Appeal grounds STATEMENT DECISIONS: not to make a statement to make, amend or not amend a statement not to grant parental request for naming of different school. to cease to maintain a statement. not to amend a statement following a review. ASSESSMENT DECISIONS: refusal of parent’s request for assessment of statemented child. refusal of parent’s request for assessment of unstatemented child. refusal of head teacher request for formal assessment of child.

Appeal Trends: registered SEN appeals 1994/ /09 94/95 95/96 96/97 97/98 98/99 99/00 00/0101/02 02/03 03/04 04/05 05/06 06/07 07/08 08/09

Disability discrimination claims New jurisdiction commenced Registered Decided Withdrawn/stuck out

ESRC Research Local authority and PPS practice vis-à-vis communicating with and supporting parents can have a strong impact on the appeal rate.

Appeal success rates Appeals upheld by SENDIST/First- tier Tribunal in England in relation to different subject matters, Refusal to assess % % Refusal to statement 182 6% % Refusal to re-assess 40 1% 5 360% Ceasing statement 34 1% % Contents of statement % % RESOLVED DEC’D UPHELD

Mediation Average number of appeals lodged per local authority: 20 Average number of appeals heard per local authority: 7 Average period between lodging appeal and hearing: 6.4 months Average number of cases with mediation settlement per local authority – between Figures are for apart from average waiting period ( ).

ADR and the Tribunal Government push for use of ADR, especially since SEN Green Paper (2011): should mediation be attempted before an appeal is registered? Senior President of Tribunals must have regard to “the need to develop innovative methods” for resolving tribunal-type disputes (TCEA 2007). But SEN tribunal considers its role “decision-making” not “brokering compromise” (AJTC report 2008). HESC concern at c.33% of appeals where last-minute settlement occurs at tribunal door. Appeal and mediation not mutually exclusive. Appeal used for leverage. Legal aid proposed cutback for SEN advice reversed.

Tribunal Rules and ADR First-tier Tribunal must, “seek, where appropriate” – (a) to bring the parties’ attention to the availability of “any appropriate alternative procedure” for disputes resolution; and (a) to bring the parties’ attention to the availability of “any appropriate alternative procedure” for disputes resolution; and (b) if parties wish, and consistent with broad justice/fairness objective,* facilitate its use. (HESC Rules 2008, rule 3) (* Includes flexibility but also avoidance of delay and sensitivity to complexity of the issues.)

“Consider mediation today” HESC Deputy President’s letter to appellants. Settlement rate up in : Appeals heard +2.8% Appeals heard +2.8% Settlements +7.3% Settlements +7.3% HESC monitoring of uptake of mediation – may explore reasons if uptake low. Early neutral evaluation pilot (for refusal to assess cases). HESC Deputy President’s letter to appellants. Settlement rate up in : Appeals heard +2.8% Appeals heard +2.8% Settlements +7.3% Settlements +7.3% HESC monitoring of uptake of mediation – may explore reasons if uptake low. Early neutral evaluation pilot (for refusal to assess cases).