The new world of SEN Mediation

The Children and Families Act 2014 and SEN Regulations 2014 came into force on 1st September 2014, bringing about a number of changes to the law of special educational needs (SEN). One of the most controversial instruments introduced by the new legislation is mediation. This article explains what mediation is and outlines how, in the context of appeals to the SEND Tribunal, the new system will work, and discusses any areas of concern.

Background

When compulsory mediation was introduced as a potential method of resolving disputes without the need of going all the way to the SEND Tribunal, a number of concerns were raised by parents, charities and parental representatives, mainly:

  • Whether it was appropriate to mediate in every case (the general principle behind mediation is that it is a voluntarily-engaged process);
  • Parents potentially losing their right of appeal to the SEND Tribunal because they failed to engage mediation;
  • Parents potentially losing the right of appeal because mediation was still ongoing and the time limit for submitting an appeal had expired;
  • Parental representatives potentially being shut out of mediation sessions; and
  • In line with the above, how vulnerable, unrepresented parents entering into mediation were going to be protected from agreeing to a settlement that is legally wrong and/or is not in their child’s best interest. Most local authority SEN representatives will be trained and experienced in legal issues involving SEN. This potentially can mean an uneven playing field for parents entering into mediation if greater protection has not been offered by the mediator.

Versions of what SEN mediation would involve and how it would work in practice have evolved significantly since it was first proposed in earlier drafts of the Children and Families Act and Special Educational Needs and Disability Regulations 2014. Many of the above issues have been resolved, but there still remain continuing areas of concern.

What is Mediation?

Mediation is becoming an increasingly popular tool used in the civil justice system in the United Kingdom. It is seen as an effective way of resolving disputes without the need to go to all the way to the doors of court; in cases which do proceed to a final hearing, it can be used to focus the issues that remain in contention. It is very popular with modern governments as, by encouraging parties to mediate and settle matters early without the need for the court, it is believed that there will be a reduction in the mounting costs that civil litigation represents to parties and the civil justice system as a whole.

Generally, mediation involves an independent third party – a mediator – whose role is to help parties reach mutually acceptable solutions to any problems. Mediators attempt to do this by developing effective communications and building areas of agreement between the parties, with the goal of reach a settlement agreeable to both parties in a case. It is not the role of the mediator to give guidance or make any judgments. It is a confidential process, normally entered into on a voluntary basis, where the terms of discussion are not disclosed to any party outside the mediation hearing.

If parties are unable to reach agreement, they can still have the right go to court, they will not be prejudiced by using mediation as details about the mediation meeting/hearing will not be disclosed or used at a court hearing.

SEN mediation – when does it apply?

From September 2014, SEN mediation arrangements apply specifically to parents and young people who are considering appealing to the SEND Tribunal about refusals to either provide an EHC plan or carry out a statutory assessment – now referred to as an EHC needs assessment. It should be noted that requests for statutory assessments made before September 2014, which have been refused, fall under the Education Act 1996 and SEN Consolidation Regulations 2001, meaning that the new requirement to engage mediation will not apply. The new compulsory mediation system does not apply to statements of special educational needs, but will apply to the special educational element of an EHC plan – which replaces the statement of SEN – which is appealable to the SEND Tribunal. It will also apply to any decision to cease to maintain an EHC Plan.

As of September 2014, all request for statutory/EHC needs assessments will potentially lead to an EHC plan. Children and young people with statements of SEN should be transferred on to EHC plans by September 2018; each local authority has its own transition arrangements, however they should all follow the Government’s transition guidance 2014.

Mediation will also be available to parents and young people with regard to making changes to the health and social care elements of an EHC plan, although these elements are not appealable to SEND Tribunal. Mediation in such a circumstance is not covered in this article. However, parents and young people considering mediation on these issues should consider where the support sought can, in fact, be classed as ‘special educational provision’, the definition of which includes all provision necessary to meet the educational needs of a pupil, including therapies such as speech and language therapy, occupational therapy and social care (such as certain types of residential care, where educational support is extended or continuous).

If these provisions have not been included in the educational section of a plan, parents and young people should consider whether they should be and whether they should engage mediation or appeal to the SEND Tribunal to this end.

Legally, it is far easier to ensure the right level of support is outlined – and that that support is ultimately provided – if it is included in the educational sections of a plan rather than (or as well as) the non-educational sections.

Local authorities must set out their mediation arrangements in their ‘local offer’. These arrangements should be drafted in light of Paragraph 11.13-11.38 of the SEN Code of Practice, discussed below.

Contacting a mediation adviser

When a local authority sends a/the parent(s) or young person notice of a final decision which can be appealed to the Tribunal, it must inform them of their right to go to mediation and when it is mandatory to contact a mediation adviser before an appeal can be registered with the Tribunal.

The notice must give the contact details of a mediation adviser, contain the timescales for requesting mediation and the contact details of any person acting on behalf of the local authority whom the parent or young person should contact if they wise to pursue mediation. The notice should also make clear that parents’ and young people’s right to appeal is not affected by entering into mediation.

When must you to contact a mediation adviser?

Under Section 51 of the Children and Families Act, it is now a legal requirement for parents and young people who wish to appeal to the SEND Tribunal to contact a mediation adviser before registering an appeal about EHC needs assessments or the SEN element of an EHC plan.

The only exception, under Section 55 of the Act, is where parent(s) or a young person wish to appeal to the SEND Tribunal solely about:

  1. The naming of a school, college or other institution in the EHC plan;
  2. The type of school, college or other institution specified in the plan; or
  3. The fact that no school or other institution has been named.

From experience of appealing to the SEND Tribunal regarding statements, it will be very rare for an appeal to be based solely on the naming of an institution in a plan. This is because parents will often seek very different placements to local authorities (such as a specialist school over a mainstream school); such a disagreement will not be down to the naming of an institution alone but will, instead, typically be the result of a fundamental disagreement as to the level and extent of a child or young person’s needs and the provision necessary to meet such needs.

To further explain the above, under the statement system: Part 2 was to set out all of a pupil’s special educational needs. Part 3 was to specify, detail and quantify all the provision the pupil requires (including specialist teaching, speech and language and occupational therapy etc.). Part 4 was to name a school able to provide the provision outlined in Part 3. Without determining the level and extent of a pupil’s special educational needs (in Part 2) and the provision that they require (in Part 3) it would be very difficult to demonstrate a specific placement is required – it would be ‘putting the cart before the horse’.

The above principle will still underpin the education section of the EHC plan namely Sections B, F and I thereof, which are the parts of the plan that are appealable to the SEND Tribunal. Therefore, it follows that the rarity of appealing solely on the basis of a school, in almost all appeals, parents will be required to contact a mediation advisor.

What happens when you contact a mediation adviser?

According to Regulation 33 of the SEND Regulations, where a parent or young person is considering registering an appeal to the SEND Tribunal and is required to contact a mediation adviser within 2 months of a local authority’s decision being appealed, the adviser must provide information on mediation and answer any questions which the parent or young person may have. This discussion will normally be provided by way of telephone.

Please note that, under Regulation 34, if a parent or young person does not contact a mediation advisor within the 2-month period after appealing a local authority’s decision, they can still seek to register an appeal to the SEND Tribunal. However, such applications can only be made after the timeline has passed. There is no guidance on how leave to appeal in such circumstances. Parents and young people are likely to have to provide substantive evidence demonstrating why they could not contact an advisor. As there is an absence of clear guidance on the issue, parents & young people should endeavour to avoid being in such a circumstance.

Note that the mediation adviser must be independent and not directly employed by the local authority or relevant health commission.

Information that is provided should be:

  • factual and unbiased;
  • Pressure-free and not seeking to push a parent or young person into engaging mediation; and
  • Not given with the aim of persuading the parent(s) or young person to use any particular mediator.

The mediation adviser should explain:

  • that mediation is an informal, non-legalistic, accessible and simple approach to settling disagreements, run by a trained third party, with the aim of bringing two parties together to clarify any issues and reach a resolution;
  • that mediation is voluntary;
  • the timescales which must be met and the certificate (explained below); and

that the local authority will pay reasonable travel expenses and other expenses to the parent or young person and witnesses taking part in mediation.

Once the above information has been provided, it is for the parent or young person to decide whether they want to go to mediation, before they appeal to the SEND Tribunal.

Where parents or young people decided not to go to mediation

Parents and young people have the right to appeal to the SEND Tribunal but are not generally able to register an appeal without a certificate from the mediation adviser.

A certificate is obtained following contact with a mediation adviser, who will provide one within 3 working days of being informed that the parent(s) or young person do not want to engage mediation; the certificate will confirming that above-mentioned information required to be provided by mediation advisers has been so provided.

According to Paragraph 11.23 of the SEN Code of Practice 2014, the certificate will enable the parent or young person to lodge their appeal, either within 2 months of the original decision being sent by the local authority or within 1 month of receiving the certificate, whichever is the later.

Any parent or young person considering appealing to the SEND Tribunal should be aware that, in relation to the further 1 month right of appeal following the issuing of the certificate, this is not legally enshrined, either in the Children and Families Act or the SEN Regulations 2014. The SEN Code of Practice is guidance; although it should be followed, it is not law. Therefore, it is strongly advised that any parent or young person considering appealing to the SEND Tribunal should consult the relevant mediation adviser and/or conduct mediation within the 2 months of the original decision’s provision by the local authority, to avoid any difficulties lodging an appeal.

Going to mediation

Mediation is free; there is no cost to parents or young people in accessing and using this service. If a parent or young person decides to proceed with a mediation session, then the local authority must ensure it takes place within 30 days of its being informed by the mediation adviser that the parent(s) or young person want to engage mediation. Note, however, that the authority may delegate the arrangement of the session to the mediator.

The local authority must attend the mediation and take part therein. If the local authority is unable to arrange mediation within 30 days it must tell the mediation adviser, who must thereafter issue a certificate within three days. On receipt of the certificate in such a circumstance, the parent or young person would be able to decide whether to appeal immediately or to wait for mediation to take place. Reservations raised above are repeated here – any parent or young person wishing to engage mediation should do this within 2 months of the local authority’s original decision that they wish to challenge, and not brook undue delay in the arrangement of mediation.

Parents or young people who have originally agreed to engage mediation, following discussion with the mediation adviser, should not be afraid to change their minds and seek a certificate instead; in such a circumstance, the mediation adviser should be informed, following which he must issue a certificate allowing an appeal to the Tribunal.

Mediation session

Any mediation session should be arranged for a date mutually convenient for the parties involved. According to Regulation 37 of the SEND Regulations, the parent(s) or young person must be informed of the date and place of the mediation at least 5 working days before the mediation, unless they have consented to a reduced period of time.

Mediators must be independent of both parties and have sufficient knowledge of the legislation relating to SEN, health and social care to be able to conduct the mediation. No one employed directly by the local authority, a clinical commissioning group or an NHS service commissioning board should be acting as a mediator. They should play a key role in ensuring that both parties are ready for the mediation session. They should also have received accredited mediation training.

The local authority’s representative in a mediation session should be sufficiently senior and have the authority to make decisions during the mediation session.

Parents or young people may be accompanied by a friend, adviser or advocate to mediation. In cases where parents are the party to the mediation and it is not appropriate for the child to attend in person, the mediator should take reasonable steps to obtain the views of the child.

Paragraph 11.38 of the Code of Practice states that, generally, legal representation should not be necessary at mediation. However, whether a party seeks to have legal representation will be a matter for them and the mediator to agree on. The cost of legal representation will be the responsibility of the party seeking to relay on this support.

Mediation sessions are confidential and without prejudice to the SEND Tribunal process and the Tribunal can disregard any offers or comments made during them, according to Section 53 of the Children and Families Act, as well as Regulation 39 of the SEND Regulations. Once mediation is completed regarding a matter which can be appealed to the SEND Tribunal, the mediation adviser must issue a certificate within three working days, confirming that it has concluded.

Where mediation has been successful, the arrangement will be recorded in writing. If there has been an agreement on a SEN issue, the written record of the agreement will be as legally enforceable as a tribunal order and, therefore, must be complied with.

Mediation will not always lead to complete agreement; if the parent(s) or young person still wish to appeal following non-agreement/partial agreement they must still produce the certificate in order to appeal at the SEND Tribunal.

According to Paragraph 11.29 of the SEN Code of Practice, parents and young people have one month from receiving the mediation certificate to register an appeal with the Tribunal, or two months from the original decision by the local authority, whichever is the later (reservations raised above are repeated here).

Appealing after mediation

The certificate will not set out any details of the mediation – only that mediation was completed. When cases are registered with the SEND Tribunal, following mediation, the Tribunal will deal with the appeal on the facts of the case. The Tribunal may cover similar ground, but will reach its own independent findings and conclusions; agreement reached through mediation may help to focus the issues involved in an appeal to the Tribunal.

The author’s views and concerns

Although the code of practice has made it far clearer, to those who wish to appeal to the SEND Tribunal, how the mediation system will work, there are still a number of issues which are not covered. The first is whether it should be compulsory for a parent to have to contact a mediation adviser, before being able to appeal. The general ethos of mediation, as a whole, is that both parties engage it on a voluntarily basis. Placing this obligation on parents seems onerous and unnecessary.

The timing of mediation

There is also a concern that, in terms of the tribunal process, mediation occurs too early. When a local authority provides its final decision regarding either not carrying out a needs assessment or refusing to provide an EHC plan or refusing to vary the content of an EHC plan, the evidence on the table is mostly the local authority’s (such as reports from educational or medical professionals). Parents have not, at this stage, had the opportunity to obtain their own evidence regarding their child’s special educational needs. This means that, in many cases, engaging in mediation at this stage, from a parental point of view, is entering an uneven playing field; for this reason, engaging in mediation at this stage would be inappropriate.

One idea which was mooted during the process of producing the new law was mediation at week 16 of a SEND Tribunal appeal. Week 16 is often the final evidence deadline in such an appeal. By that stage, both sides will have had the opportunity to gather whatever evidence on which they wish to rely. For parents, this usually takes the form of independent reports from educational specialists, such as educational psychologists, speech and language therapists and occupational therapists. The parents will have provided their evidence to the Tribunal and the local authority at this point. The local authority, by this stage of the appeal process, will also have had the opportunity to obtain and submit further evidence.

This means that, at week 16, when both parties have served their evidence, in most cases this will be the stage at which mediation stands the highest chance of being productive and even on both sides – something that is very hard to ensure at the beginning of the process. Moreover, this would be beneficial to the Tribunal, as there are four weeks between the final evidence deadline and the final hearing. If mediation took place during this period, and both parties agreed to it, then it is likely that the amount of appeals ending up in front of a tribunal panel would be significantly reduced.

There is still the age-old problem, with appeals to the SEND Tribunal, of local authorities either conceding on the day of the tribunal hearing or just before it. Having mediation take place at week 16 of the process, following the final evidence deadline, would hopefully mean that – where either party has an overwhelmingly strong case – the other side will be more inclined to concede.

Legal representation

We previously discussed that the whole purpose of mediation is that it is entered into by both parties on a voluntary basis. An additional point to this is the purpose of the mediator, if parents do decide engage mediation, is to settle a case and ensure that both parties agree to an outcome. It is envisioned that, without greater protection for parents, this could put a lot of vulnerable parents in difficulty. Most local authority representatives, going into mediation, will have a good general understanding of their legal requirements. Parents entering into mediation by themselves, with a limited understanding of special educational needs law, are extremely vulnerable to agreeing to a settlement that is not in the best interests of their child.

There is also a concern that, although mediators are legally trained, they are there to settle cases, not to adjudicate. For this reason, parents going into mediation unrepresented is a cause for major concern and could lead to them agreeing to decision which may appear reasonable but will leave their child with inadequate support.

The new SEN code of practice makes it clear that, if parents wish to have legal representation in a mediation session, there will have to be agreement with the mediator and the other side. For reasons set out above, if such agreement is not forthcoming, there is a real risk that the process will be unfair to parents. It is not suggest that this will occur often, however, where it does, parents must consider seriously whether they wish to attend mediation alone or whether they should decide to discontinue with the mediation process and go straight to the Tribunal.

Negotiation vs mediation

One of the frustrating things about the introduction of mediation into the process is that it does not recognise the fact that parties in statement appeal cases have always been continuously negotiating between themselves over relevant issues within a case and throughout the process, by way of a document called a ‘working document’; that is, in essence, a ‘draft statement’, in which both parties outline what they believe is appropriate for the child or young person in terms of describing their needs, the provision they require and suitable placements. The parties negotiate over what should be in this document.

Therefore, in most cases, it is very rare that, if a case does reach the doors of the Tribunal, parties have not already negotiated and agreed upon a lot of the issues that the Tribunal need to look at. In fact, generally the Tribunal will only consider outstanding issues which remain unresolved. It is rare for the Tribunal to reopen issues, which have already been settled between parties during mid-process negotiations, at a final hearing.

The working document concept seems rather similar to the idea of going to mediation; where parties have not fully agreed on issues but have agreed on some, mediation is to be used as a way of focusing the issues at tribunal. If this happens as part of the process, there is concern over the purpose of having a mediation process right at the beginning.

Grey areas

Another grey area, in terms of the mediation process and its effect on a case, which I imagine will be an issue for the courts to determine, is: what happens where a parent goes into mediation, makes a settlement with the other side, and then realises – after the right of appeal’s deadline has passed – that what they have agreed is not in the best interests of their child and may not comply with the law? There is a section, within the legislation, which allows parties to appeal out of time; perhaps this will be the most appropriate way of handling this. Nonetheless, it is concerning that mediation may lead to parents being in such a vulnerable position.

Finally, there is the issue that the legislation itself has not caught up with the code of practice. The certificate which is to be provided by either by the mediation advisor or the mediator will give an additional month in which to appeal; however, this is not supported by legislation. There is a risk that an authority will refuse to accept the extension provided by the certificate, on grounds that the appellant has no legal rights. It is envisioned that the Tribunal will take a ‘common sense’ approach to this, and allow such an appeal. However this is a situation in which no parent should be put through.

Situations where mediation will be appropriate

Despite the above-raised concerns, I think it is important to outline where mediation will be useful, such as situations where there is no major dispute between parties or where evidence already available to the parties (at the end of the local authority’s decision) is overwhelming. This would have to be looked at on a case-by-case basis.

One would envision, for example, an annual review, where, as part of the information collection process leading to it, educational and medical experts treating the child have advised that the child’s current level of provision is insufficient and needs to be augmented. It might beneficial to enter mediation, in such a circumstance, as the issues being looked at will be limited and the evidence on the table should be rather clear.

Another example of a situation where mediation may be appropriate would be where a local authority maintains that a school can meet need, but it is clear from the school itself and the evidence on the table that this is not the case and that the student’s placement is on the verge of breakdown. In such a circumstance, the evidence would be of a sufficient strength to put the parents in a good position in mediation.

Summary

Outside of these situations, parents must always be aware of the above concerns before deciding whether to enter into mediation. Parents who are not experienced in special educational needs law or who do not feel confident in representing their case, should consider whether mediation would be an appropriate route for them. If they do decide to engage it, they should consider having representation at the mediation, to ensure that their parental rights are protected and that the decision reached is in their child’s best interests.

For reasons outlined above, parents must be proactive in the mediation advice/mediation process, to ensure that they do not have any issues in lodging their appeal and/or they do not lose their right to appeal.

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