January 2024 - Consent from parent to use in a case study, details have been anonymised.

The initial query came in as a helpline call in late January 2024.

The parent, Neesa, received a decision from the local authority on a refusal to issue an EHC plan for her son Josh, and wished to appeal that decision.

Neesa followed procedure and contacted a mediation provider with the request that they arrange a mediation meeting with the local authority.

The decision letter was dated late November and Neesa requested mediation in the first week in December, with a view to having a meeting in December 2023/early January 2024.



The mediation provider contacted the local authority, but due to two cancellations from the Local Authority in December (exacerbated by the reduced availability due to Christmas leave), the mediation meeting did not take place within 30 days of the request.

Therefore, as per guidance, the mediation provider issued Neesa with a mediation certificate in mid- January 2024.

Neesa still wanted to go ahead with the mediation meeting and was told that the local authority might be able to arrange one within the next fortnight (early Feb), but this was not confirmed at the time of the call.

Neesa’s query to our service was around what to do next.

• Should she wait for the mediation meeting or go straight to appeal?

• What happens if the local authority fail to arrange the meeting within the next fortnight? Neesa’s concerns are that delays will eat into the 30 days appeal window provided by the mediation certificate (the two months window provided by the decision letter expired end of Jan) and she may not have much time to prepare the appeal or that she might even be timed out of her appeal window altogether.

• Will the local authority go ahead with a mediation meeting bearing in mind Neesa already has the mediation certificate? (Do they have a legal duty to do this?)

• If the mediation meeting goes ahead and there is no agreement, Neesa wondered if she would be issued with another mediation certificate and get a further 30-day extension to appeal.

• Could Neesa lodge her appeal to the Tribunal AND request a mediation meeting – with an appeal already in place?

There are a lot of questions here about timings and what Neesa should do to ensure that she does not lose her right of appeal whilst also retaining her right to mediation.

Neesa also felt that due to a failure of the local authority to stick to the legal timescales of arranging mediation, she was being penalised. As the local authority had still not confirmed the date of the mediation (only to say they were looking at mid-February) Neesa was trying to make a decision whilst wondering what would happen if this mediation was also cancelled.

Her mediation certificate, which provides an additional 30 days to appeal, expires 3^rd week of February.

Another important consideration is that Neesa very much wanted to go to mediation. Bearing in mind that waiting for a tribunal hearing date could take on average 40 weeks or more, Neesa did not want to lose her right to a mediation meeting which had the potential to provide a much quicker decision on the case, possibly even a resolution, in a more informal, non-legalistic and accessible way. Neesa wanted to avoid the delay and the stress of a tribunal appeal, and she was committed to engaging with mediation.

SENDIASS collected all the details of the query. To provide accurate advice, SENDIASS researched SEND legislation and guidance on the mediation process and in addition requested further advice from a SEND legal advisor.

With reference to the following legislation:

Children and Families Act 2014 (CAFA)

Special Educational Needs and Disability regulations 2014 (DIS REGS)

Parents have a right to appeal following these decisions by the local authority (section 51, CAFA)

• decision not to carry out an EHC needs assessment
• decision not to issue an EHC plan
• after the receipt of a final EHC plan/amended plan regarding contents of the plan
• following a decision not to amend an EHC plan
• following a decision to cease to maintain an EHC plan.
  

The local authority has a duty to inform parents/young people on their right to mediation (section 52, CAFA)

The local authority provides this information in their decision letter. They also provide a list of mediation organisations in the letter, for the parent to contact.

The local authority has a duty to arrange and participate in mediation (section 54(2), CAFA)

(2) The local authority must (a)arrange for mediation between it and the parent or young person, (b)ensure that an independent person conducts the mediation, and (c)participate in the mediation.

Timescale to request mediation (by the parent) – DIS REGS section 33.

Parents must contact the mediation company within the appeal window of two months from the date of the decision letter and inform the local authority they wish to pursue mediation.

Local authority duty to arrange mediation within 30 days of the request being made - DIS REGS, section 36 [Mediation – where there are no health care issues*]

[*Note: The legal duty is different if there is mediation on health issues, and as this particular case did not involve mediation on health, for the purpose of this case study, I will only be concentrating on the legal duties for mediation on education and social care issues.]

36.

(1) This regulation applies where a parent or young person has informed the local authority that he or she wishes to pursue mediation and the mediation issues do not relate to health care provision.

(2) The local authority must arrange for mediation between it and the child’s parent or young person, within 30 days from the date of on which it was informed by the child’s parent or young person that he or she wished to pursue mediation.

Duties around issuing a mediation certificate, under section 55(5) (DIS REGS, section 39) including when the local authority is unable to arrange mediation within 30 days as stated in section 36 (2) – above.

39.

(1) Where mediation is pursued before making an appeal to the First-tier Tribunal, the mediation adviser must issue a certificate under section 55(5) to the parent or young person within 3 working days of the conclusion of the mediation.

(2) Where mediation is pursued before making an appeal to the First-tier Tribunal and the local authority is unable to arrange for mediation within the period specified in regulation 35(4) or 36(2), the local authority must notify the mediation adviser of this fact as soon as possible after it realises that it is unable to arrange for mediation within that period.

(3) Where paragraph (2) applies, it is deemed that the child’s parent or the young person has participated in mediation, and the mediation adviser will issue a certificate under section 55(5) within 3 working days of being notified of this by the local authority, whether or not the child’s parent or the young person later participates in mediation.

Case relevance:

Looking at the law referenced above, this means that if the Local Authority is unable to arrange mediation within 30 days of it being requested, the LA must notify the mediation advisor of this fact and a mediation certificate will be issued within 3 working days to the parent/young person. (And this took place for Neesa).

Now in Section 39 (3) it says, ‘whether or not the child’s parent or the young person later participates in mediation’, implying that they still have the right to mediation regardless of being issued with a mediation certificate.

Also noteworthy is that in these circumstances it will be ‘deemed’ that the child’s parent or the young person has participated in mediation (for the purposes of tribunal appeals).

Further to this, the Disability Regulations do not state whether the local authority has the duty to still provide a mediation meeting or whether mediation can go ahead even if the parent/young person decides to lodge an appeal with the SEND Tribunal. However, looking at the law, the duty to arrange and participate in mediation (section 54 CAFA) is an absolute duty (as it states the LA must do it) and there does not appear to be anything written elsewhere which dislodges that duty.

IPSEA states that if the local authority is unable to arrange mediation within the 30 days, the mediation advisor will issue a ‘deemed mediation’ certificate within 3 working days of the local authority telling them this.

IPSEA then states: “you can decide if you still want to try the (delayed) mediation even if you are sent this certificate and/ or have lodged your appeal in the SEND Tribunal. If you do decide to try the delayed mediation, you will receive another certificate after the session and can use this to lodge your appeal if not already done so.”

Therefore, according to the advice from IPSEA, a ‘deemed mediation certificate’ is issued when mediation does not take place within 30 days. This allows the parent/young person to lodge their appeal with the SEND Tribunal if they wish AND they also have the right to the delayed mediation.

According to IPSEA information, if the delayed mediation is not successful for the parent/young person, then another certificate will be issued after the mediation session, and this can be used to lodge the appeal if not already done so. There is no mention of whether this 2^nd certificate will also provide an additional 30-day appeal window (in other words, a second extension of the appeal window).

MY QUERY:

Page 4 quote: If the LA is unable to arrange mediation within the 30-day period, then it must tell the mediation advisor as soon as possible. The mediation advisor must then issue a mediation certificate within 3 days of being notified by the LA. On receipt of the certificate, you can decide to appeal immediately or wait for mediation to take place.

My question to the SEND Legal expert:

If the parent with the mediation certificate, decides to wait for mediation to take place – and this takes a while (e.g., 3 weeks) then how does this affect the timescales. For example, if after the mediation meeting there was no agreement, would the parent be issued with another mediation certificate, giving them an additional 30 days? OR would they use the first mediation certificate – which may mean that they are running out of time re their appeal window.

RESPONSE from Legal Expert:

Mediation company are under no legal duty to issue a second certificate. Once parent receives the first one, they launch the appeal even if they are waiting for a mediation meeting. The tribunal expects LA/Parent to continue talking to resolve the situation and can always retract the application if resolved earlier. Parent can always wait for the mediation meeting and then explain to the tribunal why there has been a delay but first option after gaining the certificate is to launch the appeal.

Therefore, according to the SEND legal expert, there will be no second certificate issued and the advice, to ensure the parent/young person is not timed out of their right of appeal, is for them to go ahead and lodge the appeal, even though they are waiting for the delayed mediation meeting. Then if the mediation meeting goes ahead and is successful for the parent, they can withdraw the appeal. If not successful, the appeal has already been lodged within timescales and can be allowed to continue. And the parent/young person will have had their right to mediation fulfilled.

There does not seem to be clarity on whether or not the mediation company will issue a second certificate. Although it is stated in the IPSEA guidance, it is not clear where this information comes from, and it would seem unlikely as there could be the chance to extend the time twice (two lots of 30 extra days). Looking at the government publications site, there is only one mediation certificate available , and this has three sections which can be completed : Mediation certificate: Form SEND21 - GOV.UK (www.gov.uk)

1) Where the parent/young person has decided not to engage in mediation (with the decision date)

2) Where the mediation has taken place (with date of meeting) and

3) When the local authority has not been able to arrange mediation within 30 days (with a note of the date of initial request).

It would seem unlikely that this mediation certificate would then be issued again once the delayed mediation has taken place, as the form, as it stands, has sections for all the possible outcomes.

Case relevance:

Bearing in mind the information available, the SENDIASS advice for Neesa was as follows:

Start preparing the tribunal appeal and be ready to lodge it within the timescales provided by the mediation certificate (on this occasion, deadline was 3^rd week of February).

Continue with the request for a mediation meeting with the local authority despite it being delayed.

If the mediation meeting takes place after the tribunal appeal is lodged, this is not a problem (the local authority should still go forward with the mediation meeting) and the appeal can be withdrawn if the local authority overturn their refusal to issue decision.

If the local authority fail to arrange mediation at all, the advice was to raise this as a complaint – breach of section 54 of the children and families act (LA duty to arrange and participate in mediation).

End note

This experience is not common. The local authority almost always arranges mediation within 30 days. Neesa was unlucky as her mediation timescales fell over the Christmas holidays, and this undoubtably was the cause for the cancellations by the local authority and the inability to arrange mediation in time.

Whilst other parents/young people may be happy to forgo mediation and go straight to appeal, the nature of Neesa’s appeal (refusal to issue) meant that she wanted to go to mediation, hence the conflict.

This query was explored in a case study because it was a situation the SENDIASS advisor had not come across before, where the local authority had failed to arrange a mediation meeting with the 30 days.

SENDIASS needed to research law and guidance to provide appropriate advice. This was seen a learning opportunity and written up as a case study to share the learning with the SENDIASS team and with parents (via publishing the case study on the SENDIASS Manchester website).

Interesting points included that the guidance is not completely clear in the law and disability regulations around the local authority’s duty to provide mediation after a mediation certificate is issued and whether a second certificate will be issued or not.

This case study was useful as if this query comes up again, the SENDIASS team will feel confident in providing clear advice/guidance which will be backed by knowledge of the law and SEND expert advice.

The SENDIASS website for parent/carers, YP’s and professionals has lots of relevant information with links, podcasts and factsheets. https://www.iasmanchester.org                 

There are several ways parent/carers can gain information and knowledge. SENDIASS Manchester Information is shared verbally through volunteer parent groups:

Manchester Parent Carer Forum – For Parents and Carers of Children and Young People with Special Educational Needs and Disabilities (SEND) Aged 0-25 in Manchester

Manchesrer Parent Champions

Manchester's Local Offer

The Space Group

Listen to our SENDIASS Podcasts: Season 2 - Episode 3-4

You may wish to read the following: Disagreement Resolution and mediation services

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