SENDIASS supported a family to successfully overturn a refusal to issue decision through effective use of the mediation process.

Omar is a 4-year-old boy attending the nursery of a mainstream primary school. He was born prematurely at 25 weeks. He has developmental delay, significant physical and cognitive difficulties, and medical conditions.

Omar’s high level of need was identified early, and he was in receipt of additional support from the age of 12 months when he started attending nursery. His day nursery started the statutory assessment application process, then this was transferred over to the school mid-assessment when Omar started attending school.

Omar’s mother Anita contacted SENDIASS in mid- July 2022 after the local authority decision of refusal to issue an EHC plan. Anita wanted help and support to challenge the decision and wanted advice and information on how best to prepare for the mediation process. This was opened as a case in July 2022.

SENDIASS informed Anita that the burden of proof in these cases rests with the family and the first step is to properly explore the reasons for refusal put forward by the local authority. The initial information from the decision letter was vague. On SENDIASS advice, Anita requested a more detailed response from the local authority. The local authority added more feedback from the panel decision sent by email.

It was agreed to hold the mediation meeting early September to allow the school SENCO to attend.

SENDIASS provided information on the mediation process including an overview of mediation and fact sheets on mediation, links to resources such as IPSEA and a guide on refusal to issue appeals. SENDIASS requested copies of the statutory assessment reports and any other new information to be used by Anita in preparation for her mediation.

 To properly prepare for the mediation meeting, SENDIASS explained the legal test for refusal to issue. This was essential in organising facts and information for the meeting and understanding what was relevant. The following information was shared (below) and explained that refusal to issue centred on the law on issuing an EHC plan.

The test for issuing an EHCP is set out in section 37(1) of the Children and Families Act 2014:

“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan.

a)  the local authority must secure that an EHC plan is prepared for the child or young person, and

b)  once an EHC plan has been prepared, it must maintain the plan.”

“Special educational provision” is defined under section 21 to mean:

“Educational or training provision that is additional to, or different from, that made generally for others of the same age in—

• mainstream schools in England,
• maintained nursery schools in England,
• mainstream post-16 institutions in England, or
• places in England at which relevant early years education is provided.”
  

Alongside this, SENDIASS created a document going into detail on how to focus and present the evidence to support the parent and the SENCO to write up their information for the mediation meeting. Summary of some of the information:

1.

Identify the Special Educational provision (SEP) that is required/necessary – listed in detail and evidence to show that it is necessary. Another way to view this is to answer the question: what would happen if this SEP was not put in place? Include impact on learning, behaviour, safety for Omar and others, medical issues, health and hygiene, ability to access mainstream school environment, social interaction, sensory and physical needs.

2.

Identify how much of that required SEP is available at SEN support level. SENDIASS explained that the SENCO would be instrumental in advising what was ‘usually available’ at their school. SENDIASS explained that ‘usually available’ refers to what is available in primary schools across England, not at their school specifically. In this particular case, SEP for Omar was funded above and beyond what is normally available at SEN support level (Omar had full time one to one support at nursery). However, it was made clear that 1) that this level of support is not normally available at SEN support level and 2) just because SEP was funded in the past does not make is ‘usually available’ and that the tribunal would not view is as that. And in fact, in this case the school had made it clear to the local authority that they would not be able to continue funding Omar’s SEP at this level going into reception.

3.

The evidence should hinge on this point: In order to secure the necessary special educational provision (SEP) that the child requires, an EHC plan is necessary. Would Omar be guaranteed to receive the SEP he needs without a plan? What about at another school, would the SEP be provided?

4.

In this case most of the Local authority’s reasons centred on the fact that Omar would not require this high level of support once he was ‘used to full time education’ and that all his other needs could be met at SEN support level (there was no detail here on how this would happen). There was an assumption that the needs would decrease (without evidence of this). The school and parent had a lot of evidence to show that the high level of support was required, and his needs were not a result of getting used to transition into school (Omar had attended full time settings since he started nursery at age 12 months and therefore was used to being in a setting full time) but instead were pervasive and, in fact, the local authority hadn’t considered that his needs may increase over time as the gap widened with other pupils.

5.

SENDIASS raised the point that, judging by the reasons given by the local authority, an argument could be made at mediation that there is also not a ‘full understanding of Omar’s needs. This would be evidenced by information given by the parent and the SENCO. In addition, some therapeutic assessments were still outstanding, such as Occupational Therapy, and that these could identify further needs as well as recommendations for special educational provision required to meet those needs – and that this should be considered.

6.

It was also identified that the parents had not completed a parents’ views/child views and that therefore there had been an error in the statutory assessment process.

 SENDIASS completed two calls preparing for the mediation meeting, one with Anita and one with the SENCO, going into detail on every area of need, describing how it affects Omar, what is required, what would happen without the support and referencing the evidence/supporting medical letters to support these points.

Anita created an in-depth document (parental statement and rebuttal of the local authority’s reasons for refusal to issue). This covered each and every need in detail, referenced the matching provision to need tool, which the local authority use. Each reason for refusal to issue was highlighted with clear reasons as to why the parent was not in agreement with the reason, including evidence backing this up. SENDIASS advised Anita to write up a brief background / history of Omar to highlight his medical and developmental history and the impact of his current educational placement, and to present a more holistic picture of Omar - this was also included.

The SENCO created a detailed provision map report identifying every area of Omar’s needs and the provision required to meet his needs, and colour coded to show what provision would be available at 3 levels: universal, SEN support and higher. Support required was shown in hours and costed to show what could not be made available at SEN support level. A further report was drawn up by school detailing the probable outcome if that provision was not secured for Omar. The point of these documents was to evidence that the SEP required could not be secured at SEN support level and hence an EHC plan was necessary.

SENDIASS’ main support was to ensure that the parent and the SENCO, who both had extensive knowledge of Omar’s needs, presented their information within the structure of the legal test.

SENDIASS strongly advised that all the documentation be sent to the mediation company so these could be shared with the LA and the mediator in advance. As the reports were lengthy and over ten pages each, with a lot of information and as there were quite a few new supporting letters from medical professionals, it was advised by SENDIASS that sharing the information would help the mediation process proceed more efficiently and that time would not be wasted going through the reports. It would also be helpful to have the mediator and all attendees have a good understanding of Omar’s needs and the case prior to starting the meeting.

The local authority did not provide any additional information in advance of the mediation meeting.

The mediation meeting took place online.

The result was positive for the parents, and the local authority agreed to issue the EHC plan with the proviso that there would be a review in six months-time.

The information presented by school and Anita were instrumental in securing the outcome. Almost no arguments needed to be made – anything that was brought up had already been addressed and answered in the paperwork.

The local authority agreed that the family would complete the parents and child’s views (the previous ones were not completed by the parent, it had been an error on the part of the nursery putting in the EHC needs assessment request) to ensure their information was included in section A of the plan.

Follow up advice was given by SENDIASS on checking the draft plan. The case ended early September.

This case highlighted the benefits of effective preparation to get the most out of the mediation meeting:

1.

Preparing information meant all points were comprehensively explored and gaps identified. Every potential argument and point were explored in advance.

2.

All information / evidence was presented following the legal test for issuing an EHCP and the notes consistently referred back to the legal test (focus / evidence on SEP being necessary)

3.

Each point given by the local authority as a reason for refusal to issue was individually challenged, with evidence.

4.

Preparation in advance allowed school and parent to work together and present the evidence in a coherent way.

5.

Information shared in advance meant that the mediation meeting was more effective, it cut to the main discussion points, and it helped to inform the mediator and attendees and provided structure to the meeting.

6.

Extensive notes meant that no points were forgotten at the meeting.

7.

Should the decision not have been overturned at mediation, the parent would be ready to appeal to the SEND tribunal immediately, using the mediation documentation, which was based around the legal test and therefore relevant to tribunal proceedings.

To fully take advantage of the mediation process and the possibilities for resolution that it can provide, comprehensive preparation is required where any relevant information is presented in a new way, with the relevant legal test in mind.

In this case, SENDIASS supported the parents and school to understand the legal test and to shape and prepare their information accordingly.

Not all mediation companies ask for information to be shared in advance of the meeting – but some do – however SENDIASS advise that there are significant benefits in doing so and will recommend that parents/schools try to do this if possible. Sending documentation in advance has the added benefit of ensuring that preparation is done in advance of the meeting.

Effective preparation leads to effective mediation, which can potentially avoid costly and time-consuming tribunal procedures.

It is also essential that the local authority send a decision maker (as in this occasion) to ensure that a decision can be reached during the mediation meeting.

You may also wish to read our factsheets numbers 13 “Disagreement Resolution and Mediation Services” and number 43 “Appeals- refusal to issue.

Listen to our SENDIASS Podcasts: Season 1 - Episode 3-4

You may wish to read the following:

Fact sheet 13 - Disagreement Resolution and Mediation Services” and number 43 “Appeals- refusal to issue

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