Special educational needs

SEND Mediation Case Studies

  1. Refusal to assess

This mediation was about the local authority’s decision not to carry out a needs assessment on S, an 18-year-old with serious medical difficulties. S was under the care of several medical professionals for her medical condition and associated depression. She had been out of school for two years and was eager to resume her studies at a local college. However, because of her condition she was not always able to attend and required support including some home tuition to catch upon lessons she missed. The local authority’s position was that she did not require special educational provision and that the college could meet her needs for support.

S and her mother attended the mediation, as did the head of the SEND service. The college had intended to send a representative but she was unable to attend. S and her mother had prepared a statement that explained the background to S’s condition and why they believe she has special educational needs that require provision. S described the way her symptoms affect her and make it difficult for her to have a ‘normal’ life, attend school, socialise.

The local authority agreed that S has SEND and requires SEND provision but was unsure how an EHC Plan might help. S’s mother described what the college had suggested it could provide in the way of support from its own resources and what would require additional funding. S’s mother also spoke of the need for the consistency and integration an EHC Plan would provide and of S’s need to be able to take more time with her studies than other young people without her difficulties. S spoke of her aspirations and the course she would like to move on to over the next few years.

The local authority agreed to carry out an EHC needs assessment.

  •  Refusal to issue

On the face of it, this was a typical case of parents disagreeing with the LA’s decision not to issue an EHC Plan following a needs assessment. A young person with autism doesn’t require an EHC Plan in order to obtain the support necessary to thrive in school or college; resources are given directly to schools to meet pupils’ SEN, as well as access to specialist advice, and most pupils with SEND are supported in this way, without a formal Plan.

In addition, transition to secondary school is a time of uncertainty and even anxiety for many young people and their parents. It’s a major step up to increased independence, social and emotional challenges, and demanding lessons.

The legal test for issuing a Plan is that the local authority must prepare a Plan ‘where, in the light of an EHC assessment, it is necessary for special educational provision to be made in accordance with an EHC Plan’ (CoP 9.53; CFA 2014 31 (1))

In this case, the YP (we’ll call him John) has received a lot of support in his primary school, including 1:1 in the class as needed and regular but difficult-to-quantify support for his emotional well-being and regulation. There are ongoing issues with self-esteem and the risk of disengaging with school – he has climbed out of a window when he has become disengaged. His parents believe the support he has received, while excellent, is above and beyond what a school should be expected to provide without a formal Plan. They worry that in secondary school John won’t get that level of support and will struggle with the new challenges and difficulties in forming trusting relationships.

His tutor and the school’s SENCo felt that having a Plan would help John to understand himself and to make tangible the support he needs and why. The SENCo noted that John is a young person who needs to see why the support is necessary and what value it is to him. It would also help the secondary school to be proactive in providing support.

The LA said that it appeared to the panel making the decision that there was no reason the support he requires could not be provided by the secondary school. In any case, the panel was not supportive of John receiving 1:1 help in class. The LA suggested that if, after starting at secondary school, John appears to need more help, they can consider the question of a Plan at that point.

After a period of discussion and questioning, John’s dad said it was clear to him that there was a massive gap between those who’ve met with John for an hour, possibly remotely, and those who work with him every day and see his struggles.

Separate meetings were held for confidential discussions, after which the LA stated that they would agree to issue a Plan. Why was this? It was, like many, a borderline case in terms of the LA seeing the need. The original decision hadn’t been illegal. The LA continued to disagree about the level of 1:1 support needed in class. But the LA made the point of saying that they were concerned about John’s vulnerability and believed that a Plan should be issued. Vulnerability relates to issues of well-being and mental health and are therefore factors that LAs must take into account (ie not only academic progress), but vulnerability isn’t explicitly referred to in the legal test. A clearer picture of John’s vulnerability had come from the discussion in mediation, the ‘testimony’, for want of a better word, of those individuals who work closely with John on a daily basis. When the SENCo had suggested that John would find it helpful to have a Plan, in terms of better understanding himself and his needs, this was a slightly different approach to ‘need’ as set out in the Code of Practice. But it goes to one of the core principles at the heart of the Code, about taking account of a young person’s views and involving them in decision-making, although John didn’t attend the mediation, his views were brought out by the SENDCo and parents.

The outcome in this mediation reflected not the ‘overturning’ of a legal decision, but instead a changed perspective brought about by a kind of looking and listening that differed markedly from the panel’s paper-based decision-making.

  • Refusal to assess

David, a YP aged 19, contacted the mediation service to request mediation about a decision made by the LA not to carry out a needs assessment. He had OCD, anxiety, and processing difficulties. He was a care leaver and although he had received some support in school and in college, he did not have a statement or EHC Plan. He left college in 2017, having achieved level 1 and 2 diplomas; he had been working but wanted to return to college with support in place to help him.

The LA had refused the assessment request because they believed his needs could be met by the college. The LA wanted to attend mediation to better understand his needs and his plans for education.

On the day of the mediation, David’s support worker attended and explained that David said he felt unwell and may have felt anxious about the meeting. The LA officer asked if he might speak to us if we went to him; he lived in a small flat in a supported housing block. The support worker thought David might welcome this. The mediator, the LA officer and the support worker took a minicab to the supported housing; the mediator and LA officer introduced themselves to David and invited him to join them, and he agreed. At the meeting, David said he’d like to start with an informal discussion and then see about whether he wanted to mediate.  

David and the LA officer discussed his needs and what kind of support he thought he would need in college. He was clear that he wanted to return to college this year. The LA officer explained that the needs assessment process is long and would involve David meeting with various professionals to assess his needs. She wanted to explore whether it was possible to ensure the appropriate support and funding were in place so that David could resume his studies without carrying out an assessment, or if an assessment is needed to better understand David’s needs.

Actions agreed:

  • David agreed to work with his support worker to send more information to the LA officer on his previous support and on other professionals working with him, and on preferred colleges and courses.
  • The LA officer agreed to contact colleges to discuss how support would be provided on David’s preferred courses, and to discuss funding options with the LA and the organisations currently supporting him.
  • David agreed to go to enrolment days at his preferred colleges.
  • The LA officer and David agreed that a meeting would be held with them and all key professionals once the information had been gathered, in order to discuss if an assessment is needed. In the meantime, David should go ahead and begin a course.

One issue for the YP (and others at age 19+) is that if they have an EHC Plan the LA will fund their college place; otherwise, if they have needs but no EHC Plan, they must find the funds themselves. At the mediation everyone felt it was important that worry about funding his place should not prevent David from taking up a place offered. David agreed that if he was concerned about funding his college place, he should not give up but should contact the LA officer. She provided him with her email address and phone number.

Observations:

The case demonstrates the need for a flexible approach by mediators and LAs; that the LA officer was willing to transfer the mediation to the YP’s residence made it possible for him to participate and acknowledged that his anxieties could be a barrier. Mediators need to be flexible about the process they use and respond to the parties’ needs in the moment. The case was also a reminder to mediation providers to explore whether LA offices as mediation venues are preventing some YP from attending, and whether alternative venues are more accessible.