Mediation
Email this pageMediation is a formal way to try to settle the dispute and involves meeting between the parent and the Local Authority and an independent mediator to try to reach an agreement. In Essex this is provided by Global Mediation.
If you are thinking about appealing these local authority decisions…
- refusal to carry out an EHC needs assessment;
- refusal to issue an EHC plan;
- the contents of a final EHC plan or amended plan;
- decision not to amend an EHC plan;
- decision to cease to maintain an EHC plan
…you must firstly consider mediation by contacting Global Mediation.
You have two months from the decision letter to decide to go to mediation and/or appeal.
You do not need to consider mediation for appeals about section I only (the setting named, or that there is no setting named in the EHC plan)
If you decide it’s not for you, they will issue you a certificate which enables you to Appeal to the SEND Tribunal
If you have a disagreement with the local authority decision on:-
Refusal to Carry out a EHC Needs Assessment
It is always a good idea to continue talking to the local authority about your concerns or any questions you have and the local authority may have already offered to meet with you – this is sometimes called a Way Forward meeting.
If you have already met with the local authority and explored their decision in detail, mediation meetings may not be beneficial, and you may decide to save time and lodge an appeal.
If you have not had a proper talk with the LA about why they refused assessment, formal mediation or a way forward meeting may help as this gives you the chance to explain your points, give more context and get a better understanding of the local authority decision which may help you build your case to appeal, if you continue with it.
Download our flowchart on Way Forward meetings and mediation for RTA appeals
Click here for some ideas for when you speak to the Local Authority
Refusal to Issue an EHC plan
The SEND Code of Practice explains that if a child or young person is not making enough progress, even after support has been put in place, the local authority should look at whether more help is needed.
When deciding this, they should consider:
- whether your child’s needs can be met using the support and resources that are normally available in a mainstream setting (such as a nursery, school or college), or
- whether your child needs additional, more specialist support that can only be put in place through an Education, Health and Care (EHC) plan.
You should explain why an EHC plan is necessary in your mediation.
Appealing a Refusal to Issue an EHC Plan will help you prepare for your mediation meeting.
The Content of an EHC plan
Section B (Needs) and Section F (Provision)
Mediation may be beneficial if you disagree with how your child’s needs and provision have been described in the EHC plan.
It's important to read through your child or young person’s EHC plan carefully. Check that all of their special educational needs are clearly listed in Section B, and that each need has matching support written in Section F.
A helpful way to do this is to highlight each need and each recommended provision in the professional reports you have. Then compare these with the EHC plan to make sure nothing important has been missed.
- It does not include support for every need listed in Section B (or for needs you believe should be included in Section B).
- It does not contain health or social care provision which educates or trains your child or young person (for example, speech and language therapy). This must be treated as special educational provision (section 21(5) of the Children and Families Act 2014). If it is wrongly placed in Sections G or H, it should be moved into Section F.
- The wording is too vague. Section F should clearly say what support will be provided, who will provide it, where it will happen, how long it will last, and how often it will take place.
- It uses unclear phrases like “access to”, “regular”, or “opportunities for”, which do not clearly explain exactly what support your child will receive.
What happens next will depend on the outcome of your mediation. If you are unable to resolve the disagreement, you will receive a mediation certificate. This allows you to appeal to the SEND Tribunal. You must do this within two months of the decision letter, or one month from the date of the mediation certificate (whichever is later).
B and F appeal including Section I (Education Setting)
It is sometimes worth considering appealing against section B and F of your child’s EHCP, as well as section I. This is because the school named in section I of a plan should be a logical conclusion to what B and F say.
If you believe it would be inappropriate for your child to be educated in a nursery, school or college because of the special educational provision they require, but the Local Authority has named a school or college in the EHCP, you may wish to read our information about EOTIS (Education Otherwise than in school/college) Section 61 CAFA . This explains the circumstances in which a Local Authority may arrange for a child's special educational provision to be delivered other than in a school or college setting. Section F of a child or young person’s EHCP must specify the provision which will be delivered. Parent carers or young people will need to ensure that reference to EOTIS/C is specified in this section.
Important points to consider:-
- If you reach agreement on Section B (needs) and Section F (provision), but still need to appeal Section I (education setting), you must do this within two months of the date on the local authority’s decision letter. You do not need a mediation certificate to appeal Section I on its own.
- In cases where there has been delays in arranging mediation, it can be worthwhile considering lodging a B, F and I appeal, using a " deemed certificate". This allows you to register your appeal in time while still continuing with mediation. After mediation, if Sections B and F are resolved but Section I is still in dispute, your appeal will already have been submitted within the required two months time limits.
"Deemed" Certificates
If the local authority cannot arrange a mediation meeting within 30 days, they must let the mediator know. Global Mediation must then issue a “deemed” mediation certificate within 3 working days. This is different from the certificate you receive if you decide not to go ahead with mediation.
A deemed certificate allows you to go ahead and submit an appeal, while still keeping your right to take part in mediation. This means you may be able to make some improvements to your child’s EHC plan before the Tribunal makes its final decision.
The local authority may issue an updated EHC plan after mediation to reflect what has been agreed. If you have already submitted an appeal, the SEND Tribunal will usually accept this updated plan as a “working document” within your existing appeal.
The school or other setting (or type) named in the EHC plan
The guide also explains what steps you can take if you have asked for a particular school but the LA has refused your request.
If you feel that it would not be suitable for your child to attend a nursery, school or college because of their special educational needs, but the LA has still named a setting, you may wish to read our information about EOTIS (Education Otherwise that in school/college)
Important to note:-
- If you are solely appealing section I of an EHC plan, you do not have to obtain a mediation certificate to lodge the appeal. This does not mean you are not entitled to mediate if you would like to. However, it is important to remember that since a mediation certificate is not required, you must lodge your appeal within two months of the notice of appeal from the LA or the final EHCP plan. You may wish to consider not to delay and go straight to lodging an appeal.
- From start to finish, the process of making an appeal is currently taking up to 16 months, depending on the type of case and hearing date set. If the appeal is concerning a “phase transfer” e.g. between primary and secondary school, the First Tier SEND Tribunal may be able to offer an earlier hearing but you may wish to consider lodging your appeal as soon as possible.
- We have noticed that hearing dates are being set later than expected and so it is important that when you are ready to lodge an appeal, you make it clear to the tribunal if this is a phase transfer placement so they can consider an earlier hearing date. The Tribunal will try to prioritise those appeals where the child or young person is most disadvantaged e.g. out of school/ education, a looked after child.
Refusal not to carry out a re-assessment
You will need to explain why a re-assessment is necessary for your child or young person in the mediation.
Read information from Ipsea - Asking for a re-assessment of a child or young person's needs
Cease to maintain an EHC plan
It will be helpful to meet with the LA and show either that the LA have failed to give adequate (or any) consideration to whether it is necessary to maintain the EHCP or that that there is some other good reason why it must be maintained.
The LA must have considered whether the educational outcomes in an EHCP have been met before deciding to cease to maintain and the case will be about whether the plan is still needed whilst the young person continues their education / training or not.
If the LA has not followed the law, their decision may be invalid. You can raise this during mediation. The information provided should help you decide whether the correct steps were followed in your child or young person’s case.
If you believe the LA did not follow the law, explain this clearly in mediation. You should also explain why your child or young person still needs an EHC plan, or why the LA remains responsible for providing support (depending on your situation).
You may find it helpful to read our information about when a local authority (LA) can stop an EHC plan. This will help you check whether the LA has followed the correct process.
I am not sure if I should involve mediation
Parents and young peoples rights to mediation are set out in Section 52 of the Children & Families Act 2014
Mediation is a way to try to settle the dispute and involves meeting between the parent and the Local Authority and an independent mediator to try to reach an agreement. In most cases, you must have obtained a mediation certificate in order to appeal a Local Authority decision.
If you have already had a lot of informal discussions or meetings with your local authority you may feel a mediation meeting will not be so helpful and you may want to ask for your mediation certificate straight away, in order to begin processing your appeal to the SEND tribunal.
You may also consider a mediation meeting to give yourself more time to appeal, if it extends your appeal deadline. You can read above the various types of appeals to consider if mediation is the right step for you.
What will Global Mediation ask me?
Global Mediation will ask you:
- Have you contacted the service (Global Mediation) within two months of the date of your local authority decision letter?
- What is your disagreement with the local authority? ie. refusal to carry out a needs assessment or an EHC plan decision
- If your child has an EHC plan, does your disagreement relate only to placement or the needs and/or provision of your child's EHC plan?
- Do you wish to engage in mediation meetings or do you need a mediation certificate?
If you decide mediation is not for you, they will issue you a certificate confirming you have been told about your right to mediation, but you do not want to do so. This certificate will enable you to Appeal to SEND Tribunal either within two months of the original decision letter or within one month of receiving the certificate, whichever is the later. This certificate must be issued within 3 working days of you telling them that you do not want to go to mediation.
If you do decide to have the mediation meetings, the certificate will be issued after mediation has concluded. The certificate will enable you to lodge your appeal, either within two months of the original decision letter or within one month of receiving the certificate, whichever is the later.
Requesting a mediation certificate
The first step would be to contact Global Mediation to discuss whether you would like to involve mediation and if you decide to, they will talk you through next steps. When a young person or parent chooses mediation, the local authority (or commissioning body) must take part and ensure this happens within 30 days of the request.
If you decide to go straight to appeal they will issue you with a mediation certificate confirming you have spoken to the mediation provider, and have been advised of your rights in relation to mediation and appeals.
This certificate must be issued within 3 working days of you telling them that you do not want to go to mediation. The Certificate will enable you to lodge your appeal, either within two months of the original decision letter or within one month of receiving the certificate, whichever is the later.
Mediation Meetings
If you decide to go ahead with the mediation meetings, Global Mediation will arrange the mediation meeting between you and the Local Authority (LA). These meetings must take place within 30 days of the mediation adviser informing the LA that parents want to go to mediation.
If the local authority is unable to arrange a mediation meeting within 30 days it must tell the mediator and Global Mediation must then issue a certificate within 3 days. You can then decide if you wish to appeal immediately or wait for the mediation to take place.
After a mediation meeting, Global Mediation will issue you with a mediation certificate within three working days, which confirms that mediation has concluded. This mediation certificate will give you an additional 30 days to appeal the decision if mediation is unsuccessful.
How to prepare for a mediation mediation
Ahead of the meeting:-
- prepare a bullet point list of your issues and concerns, so you can easily reference
- think about any questions you have around why the local authority reached its decision, or is refusing your proposed changes
- highlight sections of reports to help you evidence your points
- check they have all the evidence that was provided. Share any new information such as recent letters or reports.
- was there any information you forgot to put in your parent views form that you would like to share?
- gather any new information about your child that you would like to share with the local authority (you may want to send this in advance to allow the opportunity for all parties to read)
- share your child's views on how they feel about their school setting or how they are currently being supported at school
- if your child has an EHC plan, make sure you have check through the sections of the plan and have highlighted any proposed changes
What happens if there is a delay in arranging mediation?
If the local authority is unable to arrange a mediation meeting within 30 days it must tell the mediator and Global Mediation must then issue a "deemed" certificate within 3 working days. You can then decide if you wish to appeal immediately or wait for the mediation to take place.
This is different from the certificate you receive if you decide not to go ahead with mediation.
A deemed certificate also allows you to go ahead and submit an appeal, while still keeping your right to take part in mediation. This means you may be able to make some improvements to your child’s EHC plan before the Tribunal makes its final decision.
You can read more about mediation from Ipsea
What should I expect at a mediation meeting?
At the mediation meeting there should be a representative from the local authority with the authority to make decisions.
At the meeting, the mediator will
- Introduce all parties attending
- Read through an agreement and ensure all parties wish to sign and move forward with the meeting
- Confirm the role of the mediator
- Provide an overview of the issues to be discussed as presented
- Ensure all parties understand what is said and have an opportunity to discuss and ask questions
- Confirm agreed actions and issue a Mediation certificate
Some ideas for when you speak to the local authority
- Ask them to explain what they expect the setting to provide. Make notes about this because you might need to go back to the setting to discuss this with them.
- Ask them to be clear about the evidence they would need before carrying out an assessment. For example, this might be more information about your child or young person’s progress and the impact of any previous advice or recommendations.
- Check they have all the evidence that was provided. Share any new information such as recent letters or reports.
- Was there any information you forgot to put in your family views form that you would like to share?
- Are they recommending the setting seek any specialist advice? Ask about the service being suggested and what is hoped to be achieved by their involvement.
- Have the local authority considered all of your child or young person's needs? For example, you might feel the local authority have identified support or a specialist service to help with some areas of need, but not all.
- The legal test for a local authority to carry out an EHC Needs Assessment is outlined in Section 36 (8) of the Children and Families Act 2014 (C&FA 2014). It states that the LA must secure an EHC needs assessment for the child or young person if the child or young person has or may have SEN, and, it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan. This means that it is not a requirement that they definitely have SEN only that they may do, and if your child requires support which is different to or additional than other children of the same age then they may meet this criteria.
What happens after mediation?
What happens next depends on the outcome of the mediation session.
If following mediation you have not been able to resolve your disagreement, you can appeal to the SEND Tribunal (within two months of the original decision or one month from the mediation certificate whichever is the later).
Remember that if you are solely appealing against school named (Section I) then you will not need to obtain a mediation certificate. This does not mean you are not entitled to mediate if you would like to. However, it is important to remember that since a mediation certificate will not be issued, you must lodge your appeal within two months of the notice of appeal from the LA or the final EHCP plan.
Is there a cost to mediation?
No, mediation is completely free.
Parents and young peoples rights to mediation are set out in Section 52 of the Childrens & Families Act 2014
You don’t have to go to a mediation meeting – this is voluntary and you mustn’t feel pressured into going. For Refusal to assess and Section B and/or F and I appeals you must contact the service providing SEND mediation and consider it.
Global Mediation are the mediation provider for Essex.
Also in this section:
Draft EHC plans & Proposed Plan Meetings
Guidance on how to check through your draft EHC plan and how to plan and prepare for a Proposed Plan meeting
Choosing a school with an EHC plan
Guidance on choosing and naming a school on an EHC plan
Placement Consultation Process
Frequently asked questions during the consultation process
Finalising the EHC Plan
You should receive a final EHC plan within a maximum of 20 weeks of the initial request.
EOTIS (Education Otherwise than in School/College) Section 61 CAFA
If the local authority (LA) deems school or college to be inappropriate for your child or young person, the LA can arrange for your child’s special educational provision to be delivered somewhere other than in a school, college or early years setting.
Changing a school placement with an EHC plan
The EHCP is unlikely to remain the same and may become out of date or the child/young person may move to a different school or college.
Moving to a new Local Authority with an EHC Plan
If you are moving to a new Local Authority area, the EHC plan will need to transfer to the new local authority.