Back to School Special: Day 5 - Health and/or Social Care Mediation

This is the final article in our series on matters parents/carers may need to address in the following year. You can find the other articles here.

Parents/young people can request mediation if they are unhappy with the social and/or health care elements of an Education, Health and Care Plan (EHCP). If the parent/young person is also disputing the education element of the plan, there should be a single mediation meeting to discuss all issues holistically.

If you are looking for information on SEN mediation (concerning EHC needs assessment or the SEN element of an EHCP only), see our article here.

What is mediation?

Mediation is a formal meeting between the parents/young person and the local authority (LA) or commissioning body, chaired by an independent person.

Who arranges the meeting?

If the parent/young person disagrees with the education element of the EHCP as well as the social care and/or health element, the LA is responsible for arranging mediation and the meeting will be chaired by an independent trained mediator.

If the parent/young person disagrees only with the health element of the EHCP, mediation must be arranged by the appropriate commissioning body within 30 days of being informed by the LA. The meeting must be conducted by an independent person who is not employed by a CCG or NHS Commissioning Board, and attended by a representative of the commissioning body.

Who attends the meeting?

Mediation is attended the parents/young person and the LA/commissioning body, but either party can request additional persons are permitted to attend. The LA and health commissioner representative(s) should be sufficiently senior and have authority to make decisions during the mediation session.

Parents have the right to bring an advocate or solicitor if they wish – this was confirmed in L Kumar v LB of Hillingdon [2020] EWHC 3326 (Admin)

What happens in the meeting?

A mediation meeting usually takes 1-2 hours. The person chairing the meeting 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/commissioning body will respond. The chair will encourage negotiation and ensure discussions remain on track.

At the end of the meeting the chair will draw up an action plan, setting out the actions agreed and when they will be completed. If the mediation concerns matters that could be appealed to Tribunal, parents will receive a mediation certificate within 3 days.

What if mediation isn’t successful?

The parent/young person could request the responsible commissioning body (health) or LA (social care) to go to disagreement resolution, although the health commissioning body and LA are under no duty to do so and may not agree.

Mediation about the health and/or social care elements of an EHCP does not prevent the parent/ young person also complaining to the CCG about how a service is commissioned or provided, including concerns about the appropriateness of health provision in an EHCP.

What else do I need to know?

Health and/or social care in an EHCP can be appealed to the Tribunal if the parent/young person is also appealing the education element of the Plan. However, the Tribunal can only make non-binding recommendations for health and/or social care elements.

S21(5) of the Children and Families Act is clear that health or social care provision that serves to ‘educate or train’ the child/young person is educational provision for the purpose of an EHCP and must go into Section F. As such, parents/young people may wish to consider if the health and/or social care provision they are disputing should be secured in Section F, and whether they could appeal the EHCP on that point.

We are SEN experts. To speak to one of our team about how we could help with your child/young person’s EHCP, call 0118 467 6547.