Back to School Special: Day 4 - SEN Mediation

This is the fourth in our series of articles this week, following on from what should be included in an EHCP, and how to find a placement. You can find the other articles here

Parents/young people must have a mediation certificate before they can register an appeal about EHC needs assessments or the SEN element of an Education, Health and Care Plan (EHCP).

There is no requirement to consider mediation or to have a mediation certificate if the parent/young person is appealing only Section I (named placement) of the EHCP.

What is mediation?

Mediation is specifically linked to local authority (LA) decisions about EHC needs assessments and plans. It is a formal meeting between the parents/young person and the LA, chaired by an independent trained mediator with knowledge of the legislation relating to SEN, health and social care.

Mediation aims to resolve disputes without the need for a Tribunal appeal, but it is not compulsory. Parents who do not wish to attend mediation must contact the mediation service to request the mediation certificate within 2 months of the disputed decision or final EHCP, as appropriate.

When is it used?

Parents have a right to request SEN mediation where there is a dispute over an EHCP, i.e.

• A refusal to carry out EHC needs assessment
• A refusal to issue an EHCP following needs assessment
• Disagreement over the education sections (Sections B and F) of the final EHCP
• Disagreement over the placement named (Section I) in the final EHCP
• A refusal to amend the EHCP following review
• A decision to cease the EHCP

The LA must ensure that mediation takes place within 30 days of being informed that the parent/young person has requested it, although it may delegate the arrangement of the session to the mediator. The body (or bodies) arranging mediation must inform the parent/young person of the date and place of the mediation at least 5 working days beforehand.

Who attends the mediation meeting?

Mediation is attended by the parents/young person and the LA, but either party can request additional persons are permitted to attend. The LA representative(s) must have authority to make decisions during the mediation session.

Parents have the right to bring an advocate or supporter of their choice, including a solicitor if they wish (L Kumar v LB of Hillingdon [2020] EWHC 3326 (Admin)).

SEND Regulation 41 allows parents to claim expenses for travel, lost earnings, childcare, and accommodation connected to attending mediation. Parents who are thinking of making a claim should discuss this with the arranging body before the meeting.

What happens in the meeting?

A mediation meeting usually takes 1-2 hours. The mediator will ask the parties to introduce themselves and confirm they agree to keep all discussions confidential. Parents should be invited to speak first and the LA will respond. The mediator will clarify the nature of the disagreement, encourage negotiation and ensure discussions remain on track.

At the end of the meeting, the mediator will draw up an action plan for agreement by the parents and the LA, setting out the actions agreed and when they will be completed. Parents will receive a mediation certificate within 3 days.

What happens next?

The LA should follow the agreed action plan. If it does not, parents can appeal to Tribunal.

What if mediation can’t be arranged?

If the LA cannot arrange mediation within 30 days, it must tell the mediator. The mediation adviser must then issue a mediation certificate within three days, but the parent/young person can decide whether to appeal immediately or to wait for mediation to take place.

What if I ask for mediation, but then change my mind?

If the parent/young person changes their mind after requesting mediation, they should contact the mediation adviser. The adviser will then issue the mediation certificate.

What else do I need to know?

The LA may offer an informal meeting (sometimes called a ‘ways forward’ meeting) to discuss concerns with the EHCP. This is not the same as mediation, and no mediation certificate will be issued.

Mediation is not legally binding. Parents should be mindful of any appeal deadlines, in case the LA does not follow the agreed action plan. The deadline to appeal is 2 months from the date of the LA decision letter/final EHCP or 1 month from the mediation certificate, whichever is later.

If the parent/young person appeals after mediation, any offers or comments made during the mediation meeting will be disregarded by the Tribunal.

We are experts in SEN. To speak to one of our team about how we could support you, call 0118 467 6547.