In some situations, you need to consider mediation before you can make an appeal in the SEND Tribunal.

You do not have to consider mediation if:

• Your dispute with the local authority (LA) only relates to placement – so the name, or type, of setting in section I of the EHC plan, or the fact no name or type is in section I. Remember though, often section B and/or F will need appealing too and you should consider widening the matters you want to discuss in mediation/appeal to include these. 

• You want to make a claim for disability discrimination. Indeed there is no right to mediation here.

In all other appeals, you need to consider mediation first and obtain a mediation certificate. There is no duty to actually try it though.

Step 1 – call the mediation adviser

The first step is to call a mediation adviser to get information and advice on mediation.

On the decision letter the LA sent to you, or the letter enclosing the final EHC plan, the LA must tell you of your right to mediation and give you contact details for a mediation adviser.

If you need a mediation certificate because you may wish to appeal the matter in the SEND Tribunal, and it is not just about placement (section I), then you must contact the mediation adviser within 2 months from the date of the LA’s decision letter/letter enclosing the final plan.

You still have a right to mediation even if your dispute is only about placement. If this is the case and you want to consider mediation, you should still call the mediation advisor well within the two months to get information on the process. They will talk you through the process to help you decide whether to try it or not.

Step 2 – tell the mediation adviser what you want to do

When you speak to the mediation adviser you need to tell them that you wish to appeal, and whether you want to try mediation.

If you do not want mediation

If you do not want to try mediation you do not have to. Simply tell the mediation adviser that and they will send to you a mediation certificate. You will need this certificate to send with your appeal paperwork, so keep hold of it.

They must send you the mediation certificate within 3 working days of you telling them you do not want mediation. The mediation adviser:

• Will not send a mediation certificate if your dispute relates only to placement.

If your dispute relates only to placement (section I) and you wanted information on mediation, but decide not to try it, the mediation advisor is not required to send you a mediation certificate after speaking with you.

Although you do not need a mediation certificate to make an appeal in the SEND Tribunal, not being given one does have implications for when you need to send your appeal to the SEND Tribunal.

You must make sure your section I only appeal is with the SEND Tribunal no later than two months from the date of the LA’s decision letter/letter enclosing the final EHC plan.

• May refuse to send a mediation certificate if you were late in contacting them.

You need to contact the mediation adviser within 2 months of the decision/letter enclosing the final plan.

If you cannot get hold of the mediation adviser and you are very close to the end of the two month period, you should send an email to them explaining you are trying to contact them but have been unable to reach anyone. Keep a copy of this email, in case you need to show this to the SEND Tribunal when explaining why you do not have a mediation certificate.

If you initially say you do not want mediation and receive your certificate, but then change your mind, you should call the mediation adviser back (within the two month window) and explain that you have changed your mind and would like to try mediation.

If you do want mediation

If you decide you do want to try mediation, you need to tell the mediation adviser and your LA this, and tell them what you want to discuss in the mediation.

If what you want to discuss includes the fact that no health care provision, or no health care provision of a particular kind, is set out in the EHC plan, you need to also tell the LA what health care provision you would like to be set out in the plan.

These are called the mediation issues.

For more information on this topic, see our main advice page on mediation.