You Said, We Did - FAQs Answered by OCC

Over the past months, we have had heard feedback on the following topics from parent carers:

• Quality of EP assessments for EHCNAs

• Difficulties with arranging mediation for appeals

• Difficulties with EHCP annual reviews during an appeal

We have brought your feedback to Oxfordshire County Council (OCC) and worked with them to share back with you some answers to these frequently asked questions.

Quality of EP assessments for EHCNAs

What you said:  

“Some assessments are more thorough than others and there is a difference between in person and virtual assessments.” 

 “I’ve been sent an email from the EP service to say there is a backlog in requests for advice and it may take longer than 6 weeks for an assessment.”

What OCC said: 

There is currently no backlog in the EP service, and requests for advice are followed up within the expected 6-week timescale. 

We have made improvements to the quality assurance process for all reports used for EHCPs, including EP reports. The same high standard is expected no matter whether the assessment takes place in person or virtually.

We are also using a different quality assurance tool later in the EHCP timeline to ensure the provision specified in all final plans accurately aligns with the needs of the child or young person described in professional reports. 

Difficulties with arranging mediation for appeals 

What you said:  

“There was no response from the casework team to our request, and nobody arrived at the meeting.”  

“We want to go through mediation but are not sure if decisions can be made at the meeting, or whether we have to wait for an update later after the case has been discussed.”  

"We are only appealing section I (placement) but not sure whether we can do this in mediation." 

What OCC said:  

Who attends mediation? 

• An independent mediator (from our mediation contractor, Global Mediation) 

• EHCP Caseworker or Senior EHCP Caseworker from the Local Authority 

• You may attend alone or with a SENCo, SENDIASS, or a family friend. 

• If relevant, professionals from Health (such as NHS Therapies), or Social Care may be invited. 

Why attend mediation? 

• When successful, mediation provides a quicker resolution than taking an appeal to Tribunal.  Once mediation is requested, it must happen within 30 days. This is in contrast to the current waiting times for Tribunal hearings, some of which are longer than a year - this is a National picture.  

• Even if there are several parts of the EHCP you want to appeal, and the issues seem complex, it is still worth attending mediation. There may be changes that can be agreed on quickly. If not, your route to Tribunal is still available and not affected (not "prejudiced") by discussions at the mediation session. 

What should I do to prepare for mediation? 

• If you have any new or additional evidence to support the changes you are requesting to your child's EHCP, send them to your EHCP Casework Officer as soon as possible after requesting mediation, and always a few days before the mediation date. This improves the chances of getting a decision made at the mediation session, as panels and senior officers can be consulted in advance if necessary. 

• Consider if you would prefer to attend alone or alongside a SENCO, SENDIASS or friend for support. 

Who should I contact if I do not hear back about my mediation request, or if I am told I cannot mediate for my particular issue? 

• Our mediation contractor has had some issues contacting the relevant teams to alert them to a mediation invite – this has now been addressed, and we expect the casework team to be made aware of all requests to mediate. If you do not hear back within 5 days of your request, please escalate via your EHCP casework officer. 

• If you have been told you cannot mediate over your particular issue, please contact your EHCP casework officer to discuss this. There are some reasons you may be exempt from mediation - but you should still be able to attend mediation if you wish to. 

Which types of decisions can be discussed at mediation? 

• Mediation will always be offered to you when you are sent information about a final decision, for example a decision not to assess for an EHCP or when issuing the final version of an initial or updated EHCP. 

• If you do not agree with a refusal to assess or refusal to issue decision, or the contents of the final EHCP, you have the right to appeal.  

• For most appeals, the first step is to discuss mediation with Global Mediation. All types of appeal can be discussed at mediation - and sometimes an agreement is reached without the need to progress to tribunal. 

• You do not need to attend mediation if you are only appealing Section I (placement), but you are welcome to do so if you want to discuss placement decisions and to present additional evidence. 

• However, it’s important to note that if a panel or budget holder has made a recent decision on placement, and there is no new evidence or developments in the level of SEND need, it would be unlikely that mediation would lead to a change of placement decision. 

When should I hear back about changes that have been made after mediation? 

• The Local Authority officer attending will always have the authority to make decisions. 

• Some decisions may be made during the meeting, especially if new evidence to be discussed has been available in advance. 

• Other decisions, for example those that would normally take place through the panel process, are sometimes returned after the meeting. This is to ensure the robustness of the decision. 

• After the meeting, the actions agreed will be summarised by the mediator. 

Difficulties with EHCP Annual Reviews During an Appeal 

What you said: 

“It’s not clear whether changes can be made to reflect my child’s needs at annual review if I have appealed some of the sections of the existing EHCP. It doesn’t help that waiting times for tribunal are long, and we need clarity around what can be updated in the meantime.” 

What OCC said: 

An annual review must take place within 12 months of the last review, or within 12 months of the EHCP first being issued. An appeal does not stop the annual review from happening. SOS!SEN and IPSEA both have advice pages on this. 

An annual review can still include discussion of parts of the plan that are not being appealed, including sections that cannot be appealed (for example Section E – outcomes). The review may also create an opportunity for some matters that are under appeal to be discussed and potentially resolved. 

If the local authority issues an amended EHCP following the annual review, it may be possible for this to be incorporated into the existing appeal. In some circumstances, the Tribunal may allow the amended EHCP to become the “working document” for the ongoing appeal, rather than requiring a new appeal to be submitted. 

Why this can be complicated 

This situation can be difficult to navigate. When the SEND reforms were introduced in 2014, tribunal waiting times were much shorter. The system did not anticipate appeals running longer than the annual review cycle, and as a result there is no clear national process setting out how EHCPs should routinely be updated while parts of the plan are subject to an appeal. 

The SEND Tribunal considers each case individually and there is limited case law on how annual reviews should interact with ongoing appeals. This means there is not always a single defined process that local authorities and families must follow. 

Families may also be working with different officers from the EHCP casework team within the local authority during this period. For example: 

• EHCP casework officers usually manage the annual review process 

• Tribunal officers manage the appeal process 

This can create confusion about who to contact and how decisions or updates in one process affect the other. 

Another challenge is that there may effectively be two versions of the plan in circulation: 

• The latest final EHCP, which is legally the document used for the annual review. 

• A Tribunal “Working Document”, which parents and the local authority may be jointly updating in preparation for the tribunal hearing. 

This can create practical difficulties if the annual review is technically reviewing the final EHCP while both parties are already discussing amendments through the working document. 

How to approach an Annual Review during an appeal 

Where an annual review takes place while an appeal is ongoing, we suggest treating the review as an opportunity to look again at your child or young person’s needs, outcomes and provision, as you would in any other annual review. 

In some cases, we may offer to use the Tribunal Working Document as the basis for discussion at the annual review rather than the existing final EHCP. This may help simplify the process if the working document already reflects more recent discussions or proposed changes.

Parents have the right to decline this approach and ask for the annual review to be based on the existing final EHCP, which is the document that the law identifies as the basis for the review. 

The annual review may also provide an opportunity for both parties to agree some changes. These agreed updates can be added to the working document while the appeal continues. 

What happens if changes are proposed 

Where changes are agreed following the annual review, these may: 

• Be incorporated into the existing appeal, with the Tribunal’s permission, or 

• In some cases require a new appeal if the Tribunal decides that the changes create a substantially new EHCP. 

Because this decision sits with the Tribunal and cases are considered individually, it is not possible to give a single rule about when a new appeal may be required. 

We understand that families may be concerned that changes following an annual review could delay the appeal process. For this reason, we encourage families to discuss any concerns with their caseworker or tribunal officer so that the best approach for their circumstances can be considered.