If you have a requested an Education, Health and Care Plan (EHCP) needs assessment or your child / young person already has an EHCP, there maybe be occasion when the local authority makes a decision that you do not agree with.
This could be if:
- They refuse to carry out an EHC needs assessment
- They refuse to issue your child with an EHC Plan following an EHC Needs Assessment
- You disagree with the description in the EHCP (this maybe your child’s special educational needs (SEN) and/or he provision they require)
- You disagree with the school named on the EHCP
- They refuse to amend the plan following an annual review of the EHCP
- They decide to cease to maintain the plan following an annual review.
Their decision will have been sent to you in a notification letter.
When an informal conversation (or Way Forward Meeting) with the LA cannot resolve matters you may wish to meet with representatives from the LA to discuss the matter further, a process known as mediation. This is a formal conversation.
A successful mediation means that you may avoid the need to go to tribunal as a formal appeals process.
What is Mediation?
Mediation is a chance for you to have a face to face meeting with the LA where an independent mediator will try to help you both to come to an agreement about the concerns you have raised.
The Mediation service that Surrey uses is Global Mediation. To have a Mediation meeting you would contact Global Mediation to get this booked.
There are certain requirements of mediation, it must be:
- Voluntary – no one can make you go to mediation. It is not compulsory to attend and if you decide at any time that you no longer want to meet the local authority, you have the right to withdraw. If you decide not to go to mediation you can still appeal at a tribunal.
- Free of charge – the LA has a contract with the mediation service so you will not be charged for the meeting. The LA will pay any reasonable travel expenses and other expenses the parent or young person taking part in mediation. (SEND Code of Practice – 253 paragraph 11.22).
- Accessible and flexible – it is possible to take a friend or an advocate to the meetings to support you.
- Held in a safe environment – unlike the tribunal, (which is held in a court of law or via secure video), the mediation meeting is usually held in a neutral venue, such as a hotel and not in council offices or in your home. They can also be via Teams or Zoom.
- Attended by a representative from the LA who has the authority to make a decision about your child’s assessment or plan.
How do I prepare for mediation?
Each party involved in the mediation will have to prepare a case summary, which is shared before the meeting. This helps you to consider the position of the LA and helps you to prepare for the meeting. You may want other people who worked with your child to come to the meeting if you feel they may be able to contribute meaningfully to the discussion.
You may not have had a meeting with the LA and feel that having a mediation meeting may avoid the need to go to Tribunal. If you decide to go ahead with this, it is the reasonability of the LA to convene a meeting within 30 days. They must give you at least 5 days notice of the meeting time and venue so that you can make preparations to attend the meeting.
The mediation meeting
An external mediator, who is impartial and will not take sides, chairs the meeting. The mediator has knowledge of the Special Education Needs and Disability law and is trained in mediation. They will help to facilitate the discussion so that everyone is treated fairly and has the opportunity to have their say. They ensure that the meeting represents the needs of the child and that these are at the heart of the discussion.
The mediator will ensure that an accurate records of the discussion is taken during the meeting and any agreement is recorded.
If the mediation meeting is successful, there may be several different outcomes which the LA has a duty to comply with:
- They may agree to carry out an assessment and within 2 weeks must notify you in writing that it is starting. They then have 10 weeks in which to carry out the assessment and then to decide if an EHCP is needed. If they feel your child does not need a Plan they must let you know in writing. If they decide your child does need a Plan then they may issue the final Plan within 14 weeks.
- If they agree to issue your child a Plan, they have up to 5 weeks in which to issue them with a draft and then finalise this within 11 weeks of the mediation meeting.
- If they agree to change the name of the school in the Plan then they must issue the new Plan naming the school in 2 weeks.
- If they agree to amend the Plan then they must do this within 5 weeks.
If you are not happy with the result of the mediation you may still decide you wish to go to tribunal. The mediation service will issue you with a certificate to say that following mediation you wish to appeal.
Tribunal and mediation
If you wish to appeal the LA decision at a tribunal there is a legal requirement that you have either been to mediation or have considered it. You call Global Mediation and say this.
You do not have to go to mediation if you are just appealing the school named in the EHCP (Section I only appeal), however, in most cases, if you are appealing this, it is sometimes necessary to appeal other parts of the plan too and you would need to consider mediation for them i.e. B, F and I.
If you disagree with the LA’s decision, you have two months from the date of the notification letter in which to lodge an appeal. During this time you have to contact the mediation service to discuss the option of mediation.
If you decide that you do not want to attend a mediation meeting then the mediation service will issue you with an exception certificate. The mediation service has 3 working days in which to give you this certificate and then you have two months from the original letter or a month from the date of the exemption certificate is issued, whichever is the later, to lodge the appeal.
You must complete a SEND35 or a SEND 35a to lodge your appeal – see our guidance on this. The contact email to use for this form is send@Justice.gov.uk
Credit is given to amaze (Brighton and Hove Council).