Mediation

Introduction

If you have a requested an Education, Health and Care (EHC) needs assessment or your child/young person already has an Education, Health and Care Plan (EHCP), there maybe occasions when the Local Authority (LA) 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 EHCP following an EHC needs assessment
you disagree with the description in the EHCP (this may be your child's special educational needs (SEN) and/or the provision they require)
the LA have named a 'type' of school or college in Section I
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.
or you disagree with the school named on the EHCP

The Local Authority's decision will have been sent to you in a notification letter.

Surrey County Council offers a way forward meeting (or a Co-Production Meeting) which is an informal process. There is also a formal route which is Mediation.

A successful mediation means that you may avoid the need to go to tribunal as a formal appeals process.

What is mediation?

Mediation is an 'alternative dispute resolution' and gives an opportunity for you as parents and the LA to come together to try to resolve a dispute with an independent mediator. It is a chance to have a frank conversation. Hopefully you will 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 (by calling or emailing them - we would advise that you call them - who then contacts Surrey County Council to arrange a meeting. You must call within 2 months of the date on your notification letter. Then you have the 2 months from the date of the Local Authority's decision letter or within one month of the date of the mediation certificate, which ever is the later date, to complete and send off the Appeal forms.

Contact Number: 0800 064 4488 or 020 844 11355.

Contact Email: sen@globalmediation.co.uk. You will then receive an automated response followed by an email from team-se@globalmediation.co.uk.

Arrangements for mediation

33. Where a parent or young person is required to obtain a mediation certificate, he or she must contact the mediation adviser within 2 months after written notice of the local authority's decision was sent, and inform the mediation adviser that he or she wishes to appeal and inform the mediation adviser whether they wish to pursue mediation.
Where a parent or young person does not wish to or fails to pursue mediation
34(1) Where a parent or young person who is required to obtain a mediation certificate informs the mediation adviser that he or she does not wish to pursue mediation, the mediation adviser must issue a mediation certificate under section 55(4) within 3 working days of being informed by the parent or young person.

Section 33 and 34 of the SEND Regulations 2014

The mediation adviser may not issue such a certificate if you did not contact the mediation adviser within 2 months of the date of the notice issued by the Local Authority.

If you are out of this 2 months then you could still appeal without calling Global Mediation, this means you are 'seeking leave to appeal to the First-tier Tribunal'. On the Appeal Forms (the SEND 35 or the SEND 35a), there is a section called late appeal or no mediation certificate.

Under this section you must explain, in writing, the reasons for the delay and why you think the appeal would succeed if time for making the appeal is extended. If you do not do so, the papers will be returned to you without being registered or seen by a Tribunal Judge. There is a box to complete called 'My appeal is being made late I do not have a mediation certificate'.

Examples of being late could include:

you felt the LA would name the school you wanted (so you trusted everything would be resolved)
you didn't understand the process
you have been unwell/in hospital and were not able to complete the forms
you didn't understand the process
you had caring responsibilities and had no time
there was no information from the LA on appeals
the letter and EHCP went to the wrong household/old address
you were away for a long period of time and only just back
there has been a family emergency and you were away from home
you have your own learning needs or disabilities and no one explained the process.

Examples of why you think the appeal time line should be extended:

because no school is named so you want to appeal this
because there are no other suitable offers of a placement from the LA
because of the effect of having the wrong school named on your child's mental health and wellbeing
because the school named have stated they can not meet needs
because there is no new evidence.

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).
Confidential.
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.

The LA can not refuse a request for Mediation and must arrange it. (SEN Regulations 36).

Section 37 of the SEND Regulations 2014 states:

Arrangements for mediation

The body (or bodies) arranging the mediation must ensure that it is attended by persons who have authority to resolve the mediation issues.

That body must inform the child's parent or the young person of the date and place of the mediation at least 5 working days prior to the mediation unless the child's parent or the young person consents to this period of time being reduced.

How do I prepare for mediation?

Each party involved in the mediation will have to prepare a case summary/position statement, 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 before and feel that having a mediation meeting may avoid the need to go to Tribunal. If you decide to go ahead with this meeting/mediation, it is the responsibility of the LA to hold/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 mediation maybe via Teams or Zoom.

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 record of the discussion is taken during the meeting and any agreement will also be recorded during the meeting. This is called a written record of agreement and is legally enforceable as a Tribunal Order, therefore must be complied with.

Following mediation

If the mediation meeting is successful, there may be several different outcomes which the local authority 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 an EHCP they must let you know in writing. If they decide your child does need an EHCP then they must issue the final EHCP within 14 weeks.
If they agree to issue your child an EHCP, 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 amend the EHCP then they must do this within 5 weeks. You should receive a draft within this 5 weeks so you can check it.

Please note: you could go to mediation for a conversation about placement however there will generally not be a decision on the day as the LA may need to consult with schools or speak to other teams to gather evidence. IF they agree to change the name of the school in the EHCP then they must issue the new EHCP naming the school in 2 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.

Steps to be taken by a local authority
42.(1) This regulation applies where mediation has taken place and the parties to the mediation reach an agreement, to be recorded in writing ("the mediation agreement").
(2) Where the mediation issues in the mediation agreement are those on which the child's parent or young person has a right to appeal to the First-tier Tribunal, the local authority shall comply with the time limits set out in regulation 44, as if the mediation agreement were an order of the First–tier Tribunal.
(3) Where the mediation agreement requires the local authority or responsible commissioning body to do something in relation to which the child's parent or young person has no right of appeal to the First-tier Tribunal, the local authority or responsible commissioning body must do that thing within two weeks of the date of the mediation agreement.
(4) Where the local authority was not a party to the mediation, the responsible commissioning body must notify the local authority of the mediation agreement within 1 week of the date of that agreement.
(5) The timescales referred to in paragraphs (2) and (3) do not apply where the parties to the mediation agree in writing to a different timescale.

SEND Regulations 2014

Case Study for mediation

Ruby's Story

Background

Ruby is 9 years old and attends a maintained, mainstream primary school.

Ruby has a diagnosis of ASD and is dyslexic. She was working at about 2 to 3 years behind.

Her parents had been working closely with the school as Ruby had been struggling for some time. Parents had requested an Education, Health and Care Needs Assessments (EHCNA) with support from the school. The school felt that it was best to come from the parents. The Local Authority (LA) had sent a letter stating that they were refusing to assess.

Action taken

Ruby's Mum called us to say that she wanted to appeal. She had been on a social media platform and had been told that is what she needed to do.

We spoke about the type of appeal it was and asked if she had received a letter from the Local Authority (LA). Mum said that she had received a letter but was unable to read it. We explained this and asked her to give us some history. She explained how Ruby had struggled for so long and the support that the school had put in place.

The letter did not give much information bar the fact that the LA felt that Ruby did have SEN but did not meet the second part of the Legal Test.

The Legal Test as outlined in the Children and Families Act 2014, 36 'Assessment of education, health, and care needs' states:

(8) The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—

(a) the child or young person has or may have special educational needs, and

(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.

We explained the test has a low bar and that as her parents she needed to have evidence to meet part (b).

During the call we found out that the parents were not aware of the evidence that the LA had provided so we explained that they should email the L-SPA, who deal with the first 6 weeks of the EHCP process to get this evidence. As Mum had a lot of things going on we emailed a summary of the conversation, a step-by-step guide on how to request this evidence. Ruby's mum then contacted us to say her phone had broken and she couldn't send an email.

We therefore got permission to speak in writing and sent the email ourselves.

The L-SPA replied in a matter of hours with a list of the evidence the school had provided which was very little. We were able to speak to Mum on the same day and she spoke to the schools new SENCo at pick up time.

The next day we held a Teams meeting with Mum and the SENCo who provided a long list of evidence that they now held.

We advised Mum to call Global Mediation, the company that Surrey use to manage their mediations and to ask for a meeting. We also advised that we would be sending all the new evidence to L-SPA on her behalf. We also explained that the meeting should be held within 30 days.

Within a few days Surrey's L-SPA had booked a Dispute Resolution meeting which is an informal mediation meeting (a meeting prior to the formal mediation) and spoke to Mum.

Conclusion

The outcome being that the new evidence was enough to meet the Legal Test and the LA agreed to assess.

Ruby's Mum came back to us to tell us how happy she was that we had given all the options that included mediation rather than waiting for appeal which had a year's deadline. She also said that she would come to us again rather than ask questions on social media!

For information:

Mediation meetings cost Surrey £650 each.