Local authorities forget mediation

We have today, 26 January 2015, received a decision letter from a local authority which fails to make any reference to mediation. We will not name the local authority involved.

The decision letter runs to 4 pages and gives numerous reasons for the decision that the local authority has reached. However, the letter fails to tell parents or young people about the requirements for mediation.

Why is this relevant?

The issue of mediation applies only to the new regime. Any decision about a Statement of Special Educational Needs is not affected.

The new special educational needs regime requires that parents, or young people, at least contact a mediation service and consider mediation before they can appeal to the Special Educational Needs and Disability Tribunal.

The mediation requirement has changed how appeals start. Once the mediation service is contacted, or mediation is completed, a Mediation Certificate is issued. The Tribunal cannot start the appeals process unless it is presented with a Mediation Certificate.

What has the local authority said?

Within the letter we have received, the local authority has included this ‘stock’ paragraph:

This will be familiar as being the stock paragraph that was used at the end of decision letters relating to a Statement of Special Educational Needs.

What should the local authority be telling me?

The regulations sets out what information local authorities should be sending out.

These regulations combine to require that a local authority tells parents/young people that if they do not agree with the local authority’s decision they must first contact a mediation service. The decision letter should confirm:

  • Whether mediation is required;
  • That the mediation service must be contacted within two months of the decision letter;
  • That if mediation is explored, it must be concluded within 30 days;
  • Information about how to contact the mediation service, including telephone number, email and address for at least one mediation service; and
  • Details of advocacy services to assist with mediation.

What do I do?

If you receive a letter like this, you should immediately contact the SEN Caseworker at the local authority to ask for the information that should have been provided.

To understand what you should do you need to understand the applicable deadlines:

  • The mediation service must be contacted within two months of the decision letter. If you do not, the mediation service cannot issue you with a Mediation Certificate. You can then decide whether to go through with mediation or not. Either way you will be issued with a Mediation Certificate;
    • If you decide not to go through mediation, you will be issued with a Mediation Certificate within 3 days;
    • If you do go through with mediation, the process must be completed and the Mediation Certificate issued within 33 days of being contacted;
  • You will have one month to send appeal papers to the Tribunal once you receive the Mediation Certificate

If you have missed the deadline to contact the mediation service because the local authority’s letter is unlawful you should send your appeal papers to the Tribunal immediately and ask that your appeal is taken on by the Tribunal without a Mediation Certificate. You should let the Tribunal know  how long ago the decision was made and whether you are still within an applicable time limit.

If you become aware of the local authority’s failure to tell you about mediation before the two month deadline you should contact your SEN Caseworker urgently to find out details of the mediation service available. Information should also be available on your local authority’s Local Offer. You should then contact the mediation service urgently.

Conclusion

We have written to the concerned local authority to highlight its failing. If we receive any response, I will highlight it here.

This is a significant  failure of the local authority concerned.

Whilst the entire special educational needs law has been reformed, mediation is a central tenant of the new regime. Failure to communicate these new requirements is a fundamental unlawful failure. It also could result in parents or young people being denied their right of appeal.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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