If you are given the right to appeal to the SEND tribunal (SENDIST) by the local authority (LA), you must first consider mediation. The letter from the LA will give the contact details of the mediator. You must contact them within 2 months of the date of that letter if you intend to appeal to the SENDIST (1). The mediation company will want to first talk to you and if you do not want to mediate, they must issue a mediation certificate within 3 working days (2). You do not have to mediate, and it will not reflect on tribunal if you say no. If you chose to use mediation, the meeting must be arranged within 30 days. There is no need to mediate for a school-only appeal.
You can include ‘health’ in the mediation, whether the issues relate solely or in part to the healthcare in the Education, Health and Care plan (EHCP), or because there is no healthcare in the EHCP. In this case, the LA must contact the relevant commissioning bodies within 3 working days, informing them of what the issues are. If the mediation is solely for healthcare, the commissioning body/bodies must arrange the mediation within 30 working days of the LA contacting them (3).
The LA (and/or ‘health’) must ensure that mediation is attended by a person who has the authority to resolve the mediation issues (4).
The following people may attend the mediation:
• you and the LA/health
• any advocate or other supporter you want to bring
• your child (with your and the mediator’s permission)
• any other person you all agree can be there, or if there is disagreement, with permission of the mediator.
The mediator must take reasonable steps to gain your child’s views about what is being mediated for.
If the LA cannot arrange mediation within 30 days, the mediator must issue a mediation certificate (5)
After mediation, if everyone is agreed, a Mediation Agreement will be written. If the agreement is about what you could have appealed to SENDIST for, the agreement is as binding as if it was an order from SENDIST.(6) The LA/health has 2 weeks to arrange whatever is agreed, unless everyone agrees a different timescale.
1 Special Educational Needs and Disability Regulations 2014, s33
2 Special Educational Needs and Disability Regulations 2014, s34
3 Special Educational Needs and Disability Regulations 2014, s35
4 Special Educational Needs and Disability Regulations 2014, s37
5 Special Educational Needs and Disability Regulations 2014, s39
6 Special Educational Needs and Disability Regulations 2014, s42