Government proposes greater role for mediation in SEND disputes, with Tribunal as “backstop”

A consultation paper, SEND Reform: Putting Children and Young People First, details as expected plans to increase provision and support in mainstream schools, and raise the criteria for a child to secure an Education, Health and Care Plan (EHCP).

It says that by 2035, EHCPs - the legal documents which set out the extra help children are entitled to - will be reserved for only the most complex special educational needs.

However, there will be a new legal requirement for schools to create Individual Support Plans (ISPs) for all children with SEND, which could include provision such as speech and language therapy and small group teaching.

As reported last week after the plans were leaked, from 2029 children with special educational needs will meanwhile be reassessed for EHCPs as they move up to the next stage of education, such as into secondary school.

The consultation paper envisages improvements to complaints and mediation processes, “so disagreements are resolved faster and more collaboratively, reducing the need for an appeal to the SEND Tribunal”.

It proposes that, when a school complaint relates to SEND provision, as set out in the Code of Practice, the complaints panel must include a SEND specialist, such as a Special Educational Needs Coordinator (SENCO), inclusion lead or senior school leader with SEND experience, who is independent of the school and, if relevant, trust.

“We will encourage more families to use local authority-commissioned disagreement resolution services for any disagreements that cannot be resolved using a setting or local authority complaints process,” it adds.

In relation to mediation, the DfE says it will seek to strengthen local authority-commissioned but independent mediation services for decisions about specialist provision.

It will work with key mediation bodies to embed professional standards for mediations providers, and with the Council for Disabled Children and local authorities to promote new guidance and share best practice.

Although parents and young people will not have to take part in mediation, they will “need to consider it” before appealing to the Tribunal about an EHCP, including prior to placement appeals, the consultation paper states.

It adds that the Government expects “the vast majority” of disagreements to be resolved via the complaints process or mediation.

However, “if parents still have a complaint about a local authority’s decision not to carry out a needs assessment, they will be able to appeal to the Tribunal for a ruling, in the same way as happens now.”

It adds that the Government will “set a clearer threshold for an assessment and strengthen and improve the needs assessment process so it is clearer, simpler and reflects the voice of parents/carers and the child or young person”.

The Tribunal will also hear appeals against local authority decisions about whether a child meets the new threshold for specialist provision.

The consultation paper says:

• Parents and young people will be able to appeal to the Tribunal against a decision that the child or young person has not met the threshold for one of the new nationally-defined specialist provision packages, and therefore an EHCP.
• Similarly, parents and young people will be able to appeal against a local authority decision that a child no longer needs the support set out in a package and that an EHCP should cease.
• Parents and young people will also be able to appeal for a decision from the Tribunal if they believe that the package identified for the child or young person would not provide sufficient or suitable support and that they should have a different package.

“In these cases, the Tribunal will make a binding decision on whether the child or young person should be on one of the packages and if so which one, and whether the EHCP should continue or cease,” the consultation paper says.

It adds that parents are to be provided with improved information about settings that could provide the relevant specialist provision package and meet their child’s needs.

Local authorities will give parents a list of settings, following a national framework, and parents will be able to choose from one of these or express a preference for an alternative.

“If parents do not agree with the local authority’s decision about the setting, they will be able to appeal to the Tribunal. The Tribunal will consider whether the local authority’s decision is reasonable; if they find against the local authority, they can quash the original decision and order the local authority to reconsider. However, the Tribunal will not name the placement for the child.”

The DfE meanwhile says that information about a child or young person’s special educational needs (SEN) or special educational provision (SEP) will be considered as part of appeals about the specialist provision packages or placements as appropriate, rather than being separate.

“We want the Tribunal to focus on the key questions of the child or young person’s package or placement, recognising that SEN and SEP will frequently be a central part of the evidence for these appeals,” the consultation paper says.

“For example, the local authority will need to consider the child or young person’s SEN when deciding whether he or she meets the threshold for a package, so a child’s SEN is likely to form part of the parent or young person’s evidence when appealing about this decision to the Tribunal. Similarly, information about a child or young person’s SEN or SEP is expected to form part of the evidence for a placement appeal as appropriate.”

Meanwhile, the Government outlines its ambition to improve parental confidence that local authorities will act on Tribunal judgments.

The DfE says: “We will therefore publish an annual SEND Tribunals outcomes dashboard, providing anonymised information on the outcomes of SEND Tribunals by local authority. In addition, after each judgment, local authorities will be required to write to parents explaining the action they will take and by when. They will also need to publish regular updates that summarise any judgements against them and set out how they will remedy any wider systemic issues.”

Independent special schools will – as also trailed last week –  be brought under a new regulatory regime “to make sure they deliver the high-quality support set out in packages to a fair and reasonable price”.

Alongside this, local authorities will have a formal say on new or expanding independent provision, “so places are created where children actually need them”. 

The consultation closes on 18 May 2026.

Earlier in the day, the Government announced an additional package of £4bn in funding for – amongst other things – an Inclusive Mainstream Fund (£1.6bn over three years) “to make sure children get support where and when they need it” and a new ‘Experts at Hand’ service (£1.8bn over three years) designed to create a bank of specialists such as SEND teachers and speech and language therapists “in every local area which schools can draw down from on demand, regardless of whether children have [EHCP]”.

Education Secretary Bridget Phillipson said: “I believe – and this government believes – that background shouldn’t mean destiny. How a child grows up shouldn’t dictate where they end up.

“The SEND system designed ten years ago for a small number of children is now broken. Parents end up fighting tooth and nail for entitlements on paper that don’t see them getting additional support. Children’s educations and lives have suffered.

“Today’s plans will take children with SEND from sidelined and excluded to seen, heard and included. Every child will get the brilliant support they deserve, when they need it, as routine and without a fight.”

Philip Wood, Principal Associate at law firm Browne Jacobson, described the proposed reforms to the SEND appeal process as "a fundamental change that will have a profound impact on parents and schools".

He said: "While existing tests weigh the decision in favour of parents, who can argue against the specific school their child is allocated by a local authority, the SEND Tribunal will simply decide whether a local authority’s decision is reasonable under the suggested changes.

“In those circumstances, it will still be down to the council to reconsider its decision, with the Tribunal no longer deciding the placement. But given that more than 60% of SEND appeals at least partly relate to placement, parents may view this as a significant downgrade of their legal rights.

“As a result, they may seek to make further complaints and claims to schools, in relation to their SEND provision, under the Equality Act 2010 instead."

Wood added: “The eye of the storm on SEND disputes therefore looks set to move from local authorities to schools.”

Responding to the SEND reforms, Cllr Louise Gittins, Chair of the Local Government Association, said: “For too long, the SEND system has been failing children, young people and their families. Substantial reform is desperately needed so that they get the support they need.

“We're pleased the Government shares our aspiration that children with SEND who require support do so in a mainstream setting where appropriate; and that all children can reach their potential.”

She continued: “Councils want every child to get the support they need without parents and carers necessarily having to apply for a statutory plan.

“For improved mainstream inclusion to be successful, all settings need to be empowered and resourced to meet the needs of children and young people with SEND, with a workforce that has the capacity and right skills.

“Councils have a key role to play and will need powers to lead local SEND systems and to hold health and education partners to account, to make sure they are meeting children’s needs.”

The Children’s Commissioner will have a new remit to provide independent oversight and scrutiny of SEND reform.

Dame Rachel de Souza, the Commissioner for England, said: “Children with additional needs and their families deserve clarity, so I welcome this commitment for a system that wants to prioritise children’s rights – instead of one that has failed them for far too long. 

“Families will understandably be anxious about what this moment of change will bring, but this is an opportunity to move to a system that acknowledges that every child, at some point in their lives, will require help and support. It’s an opportunity to rebuild trust with families and offer children greater ambition, instead of telling them they are the problem. 

“Under these plans, no child should fear losing support. I will be working closely with ministers and families over the coming months to make sure that becomes a reality.”

Lottie Winson