Mediation and Disagreement Resolution Services
Arrangements for the resolution of disagreements made in accordance with section 57 of the Act.
Disagreement Resolution Service
This service has been commissioned to help parents and young people to resolve:
- Disagreements relating to any part of special educational needs provision for the child or young person
- Disagreements relating to the health and social care parts of the Education, Health and Care needs assessments and Education, Health and Care Plans.
The service can provide a quick and non-adversarial way of resolving disagreements. For parents and young people there are three main areas where it can help resolve disagreements:
- where there is disagreement with the Local Authority or governing bodies of:
- maintained schools and maintained nursery schools
- early years providers
- further education institutions
- or the proprietors of academies about how they are carrying out their education, health and care duties for children and young people with special educational needs.
- duties on the local authority to keep their education and care provision under review
- the duties to assess needs and draw up Education, Health and Care Plans, and
- the duty on governing bodies and proprietors to use their best endeavours to meet children and young people’s SEN where there is disagreement with early years providers, schools or post-16 institutions about the special educational provision made for a child or young person.
- Where there is disagreement with the Clinical Commissioning Group or Local Authority about health or social care provision:
- during Education, Health and Care needs assessments
- while Education, Health and Care Plans are being drawn up or reviewed, or
- when children or young people are being reassessed
Arrangements for mediation made in accordance with section 53 or 54 of the Act
Do you have a disagreement?
When a request for an assessment for an Education, Health and Care Plan is made there are a number of different points during the assessment between making the request and a final Plan being produced that a parent or young person may disagree with the decision made by the Local Authority. Mediation is way of trying to sort out those disagreements.
What is mediation?
During mediation the people involved in the disagreement work together to reach an acceptable solution with the help of a mediator.
The mediator is an independent facilitator who has had specialist training. The mediator does not take sides and does not give advice or make judgements. The mediator manages discussions fairly to help people communicate and to explore options.
The child’s or young person’s needs are always kept at the heart of the discussions.
The route to mediation
Mediation is available at various points of the Education, Health and Care Plan assessment process:
- When the Local Authority decides not to carry out an Education, Health and Care needs assessment or re-assessment
- When the Local Authority decides not to issue an Education, Health and Care Plan following an assessment
- When the parent or young person disagrees with:
- the description of the child or young person’s Special Educational Needs specified in the Education, Health and Care Plan
- the special educational provision specified
- the school or other institution or type of school or other institution specified in the plan or that no school or other institution is specified
- When the parent or young person disagrees with an amendment to these elements of the Education, Health and Care Plan
- When the Local Authority decides not to amend an Education, Health and Care Plan following a review or re-assessment
- A decision by a local authority to cease to maintain an Education, Health and Care Plan
- When a parent or young person is unhappy with the health and social care elements on an Education, Health and Care Plan.
Parents and young people who want to appeal to the Tribunal may only do so after they have contacted the independent mediation adviser and discussed whether mediation might be a suitable way of resolving the disagreement.
When the Local Authority tells a parent or young person about a decision it has made which can be appealed to the Tribunal it must tell them of their right to go to mediation. It must also tell them that they must contact a mediation adviser before being able to register an appeal with the Tribunal. This will be set out in the letter sent out by the Local Authority. The letter will set out:
- the contact details for the mediation adviser to discuss about mediation
- the timescales for requesting mediation, and
- the contact details of the mediation service if they wish to pursue mediation
The letter will also make it clear that the right to appeal to Tribunal is not affected by going to mediation.
The Mediation Adviser
The mediation adviser will provide information on mediation and answer any questions which that parent or young person may have. This information will normally be provided over the telephone, though it can be given in written form, face-to-face or through other ways if the parent or young person prefers.
The Mediation adviser will answer questions from the parent or young person and will explain:
- that mediation is an informal, non-legalistic, accessible and simple disagreement resolution process
- that it is run by a trained third party independent of the Local Authority
- that it is designed to bring two parties together to clarify the issues and reach a resolution
- that the parent or young person’s use of mediation is voluntary
- the timescales which must be met and the certificate that is issued
- that the Local Authority will pay reasonable travel expenses to the parent or young person and witnesses taking part in mediation
Based on the discussion and information given, the parent or young person then decides whether they want to go to mediation or not.If they decide not to go mediation the mediation adviser will issue a certificate within three working days of the parent or young person telling them they do not want to go to mediation. This certificate enables the parent or young person to appeal to the Tribunal. The appeal must then be lodged either within two months of the original decision being sent by the Local Authority or within one month of receiving the certificate – whichever is the later.
Exception to the requirement to contact a mediation adviser before appealing to Tribunal
A parent or young person does not have to contact a mediation adviser before appealing to Tribunal if their appeal is solely about:
- the name of the school, college or other institution, or type of school or institution named in the Education, Health and Care Plan, or
- that no school or other institution is named.
In these situations they can appeal directly to the Tribunal without having to consider mediation.
The Timescales involved
If the parent or young person decides that they want to go to mediation then the mediation must take place within 30 days of the mediation adviser informing the Local Authority. If the mediation cannot be arranged within 30 days the Local Authority must tell the mediation adviser who must then issue a certificate to the parent or young person within three days. The parent or young person can then decide whether to appeal to Tribunal or wait for the mediation to take place.
When the mediation is completed the mediation adviser must then issue a certificate to the parent or young person within three working days to confirm it has concluded. The certificate will not say what happened at the mediation. It will just state that the mediation was completed and on what date.
If the parent or young person still wants to appeal to Tribunal they must then send their certificate to the Tribunal when they register their appeal. To register their appeal they have one month from receiving the certificate or two months from the original decision by the Local Authority – whichever is the later.
After the mediation the Local Authority must put in place the agreements made at the mediation within specific timescales:
If it is an agreement on an issue that the parent or young person has a right to appeal to Tribunal over it must be put in place by the time limits that would apply if the Tribunal had made an order for it to be done
If it is an agreement on an issue that would not be appealable to the Tribunal then it must be put in place within two weeks of the date of the mediation agreement.
If the parties to the mediation agree to a different timescale this will take the place of the two timescales set out above.
Mediation on the health and social care elements of an Education, Health and Care Plan
Parents and young people can also go to mediation about these elements of the Education, Health and Care Plan. They do not have to receive mediation advice before going to mediation about these elements.
(BUT if the health or social care element is provision that educates or trains a child or young person this is treated as special educational provision rather than health or social care provision. This means that it could be appealed to the Tribunal and so would follow the process set out previously in terms of having to contact a mediation adviser).
The letter that the Local Authority sends to a parent or young person must also state that they can go to mediation about these aspects and give contact details of the mediation service. When telling the Local Authority that they wish to go to mediation the parent or young person must tell the Local Authority that it is about these elements. They must also tell the Local Authority what health or social care provision they want specified in the Plan.
If mediation does not resolve the disagreement about the health and social care elements of the Education, Health and Care Plan they cannot be appealed over to Tribunal. The parent or young person can instead follow the local complaint routes for health and social care.
Children and Young People in Youth Custody
When a child or young person is in Youth Custody the procedures around mediation still apply. If mediation is wanted the home local authority will work with the custodial establishment to make sure the mediation information session can take place and that the detained person can take part in the mediation if they choose to do so.
Wirral SEND Partnership Information Advice and Support service can give further information about registering an appeal with Tribunal. You can contact them on 0151 522 7990 Option 2 or email [email protected]
Single Right of Redress
This document contains useful advice and explains the processes involved in working towards a resolution including tribunals