April 2022

It has come to our attention that parents/carers and young people may be receiving inaccurate information from some mediation providers in advance of bringing an appeal to the SEND Tribunal. Some parents/carers and young people are incorrectly being advised that they do not have a right to mediation if they only want to appeal section I of an EHC plan.

As local authorities are legally required to issue final amended EHC plans for children and young people moving to a new phase of education by 15 February or 31 March a large number of EHC plans have recently been finalised. This, together with the fact that the Tribunal is currently receiving an unprecedented volume of appeals, makes it especially important that mediation is available to everyone who requests it, including those who disagree with the school or institution named in section I (or the fact that no school/institution has been named).

Parents/carers and young people seeking a change to section I of an EHC plan will often seek improvements to the special educational needs and provision in the plan too. In those situations they are required to think about whether they would like to try mediation and obtain a mediation certificate before they can appeal to the SEND Tribunal.

When a parent/carer or young person is only appealing section I of an EHC plan, they do not have to obtain a mediation certificate first (section 55 of the Children and Families Act (“CAFA”) 2014). This does not mean they are not entitled to mediate if they would like to. It appears that some mediation providers may be misinterpreting this part of the law.

If you have been told that you cannot mediate because you are only appealing section I of an EHC plan, this is not correct. The CAFA 2014 sets out when parents/carers and young people have the right to mediation:

• Section 52 makes clear that the right to mediation applies to the decisions which can be appealed to the SEND Tribunal listed in section 51 or where an EHC plan for a child or young person is made, amended or replaced.
• Section 51 sets out the right to appeal various things including:
  • the school or other institution named in the EHC plan;
  • the type of school or other institution specified in the plan; or
  • if no school or other institution is named in the plan.
• Section 54 makes clear that where the parent or young person informs the local authority that they wish to pursue mediation, the local authority must arrange and participate in mediation.

If you would like to try mediation before submitting an appeal (having considered the pros and cons of delaying the appeal) and you are told that it is not available in relation to placement disputes, you could refer the mediation service to this article.

If you decide to go ahead and appeal without taking part in mediation, disagreement resolution might still be available. Local authorities are required to notify parents/young people about the availability of disagreement resolution services when they issue a finalised EHC plan. There is more information about this at paragraphs 11.6 – 11.10 of the SEN and Disability Code of Practice. 

If you are not sure whether to try mediation or appeal to the SEND Tribunal or which sections of the EHC plan you should challenge, you can use our Tribunal Helpline or Call-in Helpline. Information on where else to get help is here.