Mediation and Tribunal

The information within this section is based on the following documents

SEND Tribunal: extended appeals Guidance for local authorities, health commissioners, parents and young people (September 2021)

and the

SEND code of Practice (January 2015)

Sometimes the practitioners working with you and your child to undertake an EHC needs assessment, develop an EHCP or maintain an EHCP may not be able to accommodate your requests or may not agree with you and, despite meeting with you and talking through your concerns, you are unable to reach an acceptable conclusion. If this is the case then your next step will be to proceed with formal mediation.  

Mediation is an informal, non-legalistic, accessible and simple disagreement settlement process run by a trained third party and designed to bring two parties together to clarify the issues, and reach a resolution. The use of mediation by a parent or young person is voluntary.

Dudley SEN Team are committed to working in partnership with parents/carers and young people. However, there may be occasions when we're not be able to reach an agreement without the involvement of a third party. Mediation is a voluntary process for parents and young people which can take place where following the decisions that the local authority takes about certain aspects of an EHC plan, including a decision to:

• Not carry out an EHC needs assessment or re-assessment.
• Not agree an EHC plan after an EHC needs assessment has been completed.
• Not amend an EHC plan following an annual review or re-assessment.
• Cease to maintain an EHC plan.

If you have not been able to resolve your concerns through informal processes then mediation may be the next step to take before lodging an appeal to the SEN Tribunal Service.

In Dudley, we use Prime Resolution and KIDS to provide impartial, independent and free mediation and disagreement resolution for parents/carers and young people up to the age of 25. (See related documents)

If you would like more information about either of these providers or would like to know more about alternative providers, please contact your named Case Officer or the Dudley SEN Team.

The LA will pay reasonable expenses, including travel expenses, that are incurred as a result of taking part in mediation. 

Your mediator will work with you to identify the areas of dispute, and will organise and lead a structured meeting on your behalf. Mediation services are fully independent, and the mediator will ensure that everyone understands each other’s position. A trained mediator will support the discussion and assist everyone involved in arriving at an agreement if at all possible. If the meeting doesn't reach full agreement, you can still formally appeal to The SEN and Disability Tribunal for a final ruling.

If you're unsure about whether you need to proceed with mediation and would like further help with this, please contact your allocated Case Officer or for impartial support you can contact SENDIASS.

 A request for mediation must be made within two months of the date of our decision notice.

 For more information about mediation, including how to claim expenses, please you can contact the allocated SEN Case Officer. 

In most cases you will need a certificate from a mediation adviser before you register an appeal with the SEND tribunal. However, there are some exceptions to this if:

• Your appeal is solely about the name of the school, college or other institution named on the EHC plan, the type of school, college or other institution specified in the plan or the fact that no school or other institution is named.

or

• You are making a disability discrimination claim to the SEND tribunal.

 In all other cases the law requires you to contact a mediation service, before proceeding to a SEN and disability tribunal. If, after you've discussed your position with a mediation service, you don't believe that a mediation meeting will be helpful you can request that the mediation service issue you with a certificate that confirms that they have spoken to you. You will require this certificate in order to lodge an appeal with SENDIST. The certificate will be issued within three working days of a parent or young person advising the mediator that they do not want to go ahead with mediation.

A request for mediation must be made within two months of the date of our decision notice.

If you are unable to resolve your concerns through mediation and have a mediation certificate or if your concerns only relate to the setting or type of setting named in the EHCP or if you are making a disability discrimination claim you can lodge a formal appeal to the SEN and Disability Tribunal service (SENDIST).

• SENDIST also handle appeals against decisions to refuse people under 18 in custody:
• An EHC assessment.
• An EHC plan after assessment.
• A placement to a suitable school or other institution after their release.

If you would like further information about SENDIST you can contact SENDIASS  or for advice on making SEND appeals to the Tribunal or for a copy of the appeal form you can go to the GOV.UK website further guidance can be found in the toolkit of support and you can also watch their.

Single Route of Redress  

On 20th July 2021, the Department for Education (DfE) confirmed the extended powers given to the SEND Tribunal to hear appeals and make non-binding recommendations about health and social care aspects of Education, Health and Care (EHC) plans, provided those appeals also included education elements.

This means that as long as there is also an education issue about which you are appealing you can go to mediation about the health and social care elements of an EHC plan. You can also request that the SEND Tribunal make recommendations about health and social care issues without having to receive mediation advice or attend mediation about those issues, although you will still need to seek mediation in respect of the education issues that you are appealing.

If mediation resolves the educational issues, you will not be able to appeal to the Tribunal on any health and/or social care aspects of the EHC plan. However, mediation provides an opportunity for us to resolve disagreements and it can be completed more quickly than an appeal. It does not affect your right to make an educational appeal, and some aspects of the disagreement can go to appeal even when other aspects are resolved.  

The National Trial commenced from April 2018 to August 2021 testing the extended powers for the SEND Tribunal. The department commissioned an independent evaluation of the National Trial which found broadly positive evidence in support of the Tribunal’s extended powers, which can be seen here.

Therefore, the Government has confirmed that they are continuing the extended powers of the First-tier Tribunal (SEND), sometimes referred to as the ‘SEND Tribunal’, to make non-binding recommendations about the health and social care aspects of Education, Health and Care (EHC) plans..  

Previously, you have only been able to appeal the educational aspects of EHC plans. The continuation of the extended powers given to the SEND Tribunal, maintains your right to request recommendations about the health and social care needs and provision specified in EHC plans, in addition to the educational aspects, when making a SEND appeal. This gives you the opportunity to raise all your concerns about an EHC plan in one place.

If you wish to appeal against a local authority decision on an education issue (as set out above) and want to request that the also Tribunal considers your concerns about the health and /or social care aspects of the EHC plan, you should follow the process for bringing an appeal to the Tribunal and tick the box on the form relating to a health and/or social care appeal.

For advice on making SEND appeals to the Tribunal or for a copy of the appeal form  you can go to the GOV.UK website.