Special Educational Needs and Disabilities – SEND Mediation
The Department for Education’s Guide for Parents and Carers is a useful starting place when trying to understand what SEND is. Since 2014, all children with special educational needs and/or disabilities must receive appropriate support in order to ensure that they have their needs met and they receive an education which allows them to:-
- achieve their best outcome,
- become confident individuals and live fulfilling lives, and
- make a successful transition to becoming an adult.
And parents / young people should be able to contribute to this process.
You can find a useful glossary of key SEND terms and legislation here. We also regularly update our blog with core SEND topics such as ‘How do you request an EHC Needs Assessment or Plan‘ and ‘When and how do you appeal a decision by the LA?’.
Information for Parents, Carers & Young Persons – SEND mediation
The aim of this section is to provide a useful overview of key aspects of the SEND process. We use the following abbreviations in this section:-
LA = local authority
EHCP = education, health & care plan
DRS = disagreement resolution service
What is Mediation?
What is Mediation?
In a typical SEND dispute, it is often the case that everybody involved simply wants the best outcomes for the child or young person with SEND. Any disagreement often occurs when people can’t agree on what provision is needed to ensure that best outcome is achieved. Mediation is a voluntary, confidential and without prejudice process. It allows the parties to come together and speak openly and honestly about their concerns and aspirations in a SEND disagreement.
Mediation is an informal and non-confrontational meeting that gives the parent(s) / young person the opportunity to speak with the LA about EHC decisions if they disagree with them. Everything discussed at a mediation is confidential and without prejudice. This means that everybody involved can speak openly and honestly with one another, knowing that nothing they say can later be used against them.
Our SEND mediators make sure that everyone at the meditation has the same opportunities to speak and be heard.
What happens at a SEND Mediation?
The Mediation is an opportunity to resolve a SEND dispute quickly by using a mediator to help everyone to find an outcome that they can agree with. This might be a final outcome (e.g. an agreement to provide an EHCP) or it might be an agreement on series of steps which need to be followed next (e.g. it might be agreed to gather some expert reports with a view to potentially carrying out another SEND Needs Assessment.
You can bring someone to support you, e.g. a teacher or SENCO, SENDIASS, a relevant expert, or a family member or friend. You can bring information from people who have opinions about the support the child/ young person may need. Bringing new and additional evidence is always useful. You can also bring a statement from the young person / child too.
On the day, the mediation session begins with a private conversation between the mediator and the people their on behalf of the young person or child. The mediator will also have a private conversation with the LA. These private conversations allow the mediator to understand the views and aims of each party as well as to explain the mediation process to them.
The mediator would then propose a joint session which allows the parties to speak to one another directly in the presence of the mediator. This session allows everyone to set out their view of the situation and what they want to achieve for the young person or child with SEND. Just as importantly, it allows them to hear and understand the views of the other party.
The mediator will aim to help them to move past sticking points, find common ground, and explore what solution is available which satisfies each party’s aims.
Whatever solution is agreed will be written down and provided to all parties
Why should you consider Mediation?
Mediation is a successful way to resolve a SEND dispute with an LA without having to bring your dispute to the Tribunal. Bringing your case to the Tribunal is a costly, lengthy and stressful process.
By law you are now required to at least consider Mediation before you lodge an appeal concerning an EHCP with the (SEND) First-tier Tribunal. The only exceptions are where the dispute is only about:-
- the school named in the EHCP
- the type of school named in the EHCP
- when there isn’t a school named in the EHCP
- the health or social care sections of the EHCP
Mediation will not cost the parent or young person anything – it is paid for by the LA. If, in the above scenarios, the parent(s)/young person decides to attend SEND mediation the LA must also attend.
It will take less than 28 days to arrange a mediation. Compare this with how long it often takes to bring a dispute to the (SEND) First Tier Tribunal – approximately 12 weeks. Mediation gives everyone the opportunity to focus on putting in place the right support for the child/young person as soon as possible, so that their education suffers as little disruption as possible.
For the young person or parent(s) mediation allows them the chance to be part of the decision-making process when exploring the next steps to take. For the LA mediation allows them to meet the people who are involved in the dispute, and better understand their point of view. It also allows the LA the chance to explain their viewpoints and processes in person.
Actions or next steps are often agreed at the Mediation. If you aren’t able to reach an agreement for way forward at the Mediation, you can still bring an appeal to (SEND) First-tier Tribunal so long as you do it within 1 month one month after the date of the mediation, or 2 months after the original LA decision, whichever date happens to give you the most time.
What is Disagreement Resolution
What is Disagreement Resolution?
As well as a Mediation service, every LA must also provide access to a DRS for parents, carers and young people who have concerns about support, and how it is being provided. DRS is entirely voluntary for both parents/young persons/carers and also the LA. DRS is available to be requested for disputes involving children / young persons with SEN, and it doesn’t matter whether that child or young person has an EHCP or not.
Mediation differs from DRS because Mediation is intended to be available to use each time a final decision has been made in respect of certain aspects of an EHCP. DRS can be used at any time if both sides agree to use it, including after an appeal has been lodged with the First Tier Tribunal. DRS is an early chance for all parties to discuss any conerns about support, regardless of whether there is an EHC Plan or not.
When can I use the Disagreement Resolution service?
You can make a request to use DRS:-
- If you are concerned with how EHC duties are being performed by a school or LA,
- If you are concerned about what SEN support is being provided for the child/young person,
- If you are concerned about how the EHC Needs Assessment process is being conducted, or how an EHCP is being drafted, before a decision has been made;
- If you are concerned with how a review or re-assessment of an EHCP is being performed; or
- If you have begun the (SEND) First-tier Tribunal appeal process over an EHC decision
- If you are involved in a dispute relating to the health and social care aspects of an EHC Needs Assessment
How does Disagreement Resolution work?
We begin with a series of initial telephone calls. During our initial phone calls we will discuss the dispute. This will include taking a brief case history to help us understand the needs of the child or young person. We will then agree the focus of the meeting and who should attend.
After these initial calls we will contact the relevant parties to ask if they will agree to take part. If everyone agrees, a date and time for a meeting will be identified. We will also identify a neutral venue that is as central as possible for all parties.
If agreement to proceed is not reached, all parties are informed and that will, unfortunately, be the end of our involvement.
The DRS process itself is very similar to the SEND mediation process set out above.
The only document that will emerge from the meeting is an Outcome Statement. This document briefly sets out what the discussions covered and it lists the agreed actions/outcomes. Seeing as they have created this document between them each party is expected to sign the Outcome Statement before the meeting ends in order to confirm it is an accurate record They will also receive a copy for their records shortly after the meeting.
Knowsley Local Offer
Mediatelegal provides SEND mediation and DRS services to the borough of Knowsley. You can find the Knowsley Local Offer here.