Frequently Asked Questions (SEND FAQs)

Before mediation

Under what circumstances do I not need to seek mediation or a tribunal certificate?

If you are appealing the named school provision in an already-finalised EHCP, you do not need to consider mediation and can proceed directly to tribunal without a mediation certificate. Please note that if you attempt to appeal other details of the EHCP, you will need a mediation certificate and so this process is to be used for appealing named school placement only. Additionally, if your appeal concerns the Health and Social Care elements of the EHCP only, or is a disability discrimination claim, you do not need a mediation certificate to appeal via tribunal.

How long have I got to make an appeal after a refusal to assess for an EHCP?

You have 60 days to appeal, from the date of the decision about your child’s assessment for an EHCP – this is usually from the date of the correspondence from your Local Authority. As long as you speak to the mediation service within 60 days of the original decision, we can issue a tribunal certificate or request a mediation meeting. A tribunal certificate will give you an additional 30 days from the date of its issue, to get your application for tribunal submitted. A mediation request will take up to 30 days, and a certificate giving you an additional 30 days to appeal via tribunal will be issued either on the date of the mediation meeting, or at the point at which the 30 day deadline for mediation elapses (in the case of a mediation meeting not being arranged within the 30-day timescale).

How long have I got to make an appeal after a refusal to issue an EHCP after assessment?

You have 60 days to appeal, from the date of the decision not to issue your child with an EHCP after assessment  – this is usually from the date of the correspondence from your Local Authority. As long as you speak to the mediation service within 60 days of the original decision, we can issue a tribunal certificate or request a mediation meeting. A tribunal certificate will give you an additional 30 days from the date of its issue, to get your application for tribunal submitted. A mediation request will take up to 30 days, and a certificate giving you an additional 30 days to appeal via tribunal will be issued either on the date of the mediation meeting, or at the point at which the 30 day deadline for mediation elapses (in the case of a mediation meeting not being arranged within the 30-day timescale).

How long have I got to make an appeal against the contents of my child’s EHCP?

You have 60 days to appeal, from the date of issue of the final EHCP – this is usually from the date of the correspondence that accompanies the final EHCP from your Local Authority. As long as you speak to the mediation service within 60 days of the final EHCP being issued, we can issue a tribunal certificate or request a mediation meeting. A tribunal certificate will give you an additional 30 days from the date of its issue, to get your application for tribunal submitted. A mediation request will take up to 30 days, and a certificate giving you an additional 30 days to appeal via tribunal will be issued either on the date of the mediation meeting, or at the point at which the 30 day deadline for mediation elapses (in the case of a mediation meeting not being arranged within the 30-day timescale).

What happens if I am over the 60-day appeal timescale?

If you contact Releasing Potential Mediation after your 60 days appeal window has elapsed, we cannot promise that your request for mediation will be accepted, nor can we confirm that your tribunal application will be processed. You can opt to request mediation late, and it is at the discretion of the Local Authority whether a late mediation will be arranged. You can also request a late tribunal, for which we will issue a certificate. It is at the discretion of the tribunal service whether a late tribunal application will be accepted; usually there must be mitigating circumstances (for example, serious ill-health/hospitalisation) for a late application to be accepted.

What if my 60-day deadline falls over the Christmas period?

It is the responsibility of the parent to contact and speak to the mediation service within 60 days of the date of the Local Authority’s decision. If the 60-day deadline falls over the Christmas period (Saturday 22nd December – Wednesday 2nd January) please ensure that you contact us, where possible, before the 21st December. Our office is closed from 4:30pm Friday 21st December and reopens 08:30am Wednesday 2nd January. Any requests for mediation or for tribunal certificates that need to be made after 4:30pm on the 21/12/18 and before the 02/01/19 will be accepted by email and back-issued during the period of our closure. If your 60-day window for appeal does not fall within this time frame, we will take your call on Wednesday 2nd January 2019.

If you must place your request for mediation between 22/12/18 and 02/01/19, please email mediation@releasingpotential.com, with your name; the child’s name; child’s date of birth; the name of the child’s school (or most recent placement name); your address, and your reason for appeal. We will confirm receipt on 02/01/19 and back-issue appropriate documentation.

Is mediation always the best option?

Sometimes, parents may have a clear sense that their Local Authority is not in a position to negotiate. Furthermore, the relationship between the parent and the Local Authority may have become fraught, and the parent may feel so angry or upset that tribunal would be a more appropriate venue for appeal. The decision about whether to mediate is down to the parent; if a parent requests a mediation meeting the Local Authority has a statutory obligation to facilitate one. However, it may be that the parent feels this is a waste of time, and the consequence of an unproductive mediation is that a parent’s application for tribunal can be delayed for up to 30 days as this is the timeline for a mediation to be arranged. The mediation service cannot advise on whether mediation is appropriate or will result in success for the parent, it must be the parent’s decision.

What if I don’t get mediation when I have asked for it?

Local Authorities have an obligation to provide mediation if parents request it. However, sometimes this is not possible due to factors beyond the control of the Local Authority. Occasionally, a mediation cannot be arranged within 30 days; at this point the parent will be issued with a certificate that explains that their request for mediation has not been granted by the Local Authority within the 30-day timescale. This certificate will give the parent(s) access to tribunal should they wish to continue their appeal in this way.

At mediation

Does mediation cost anything?

No. Mediation is free of charge to parents in dispute with their Local Authority. The cost of mediation falls to the Local Authority; these funds are re-invested by Releasing Potential Mediation into Releasing Potential School.

If I opt for mediation, where will it take place?

Mediation should take place at a neutral venue that is accessible to all parties. Where possible, mediation will take place within 5 miles of the parent’s home location. This can be complicated by additional parties (for instance, if either party requests the presence of an attendee from the child’s school)  if we need to coordinate several people at different locations. We will consult with parents to find a mutually agreeable location for mediation. Please do let us know if you have transport or accessibility issues that we should consider.

Who will my mediator be?

Ordinarily, your mediator will be employed by Releasing Potential Mediation and will not be a freelance mediator with a more general specialism or experience. Releasing Potential Mediation uses the same team of highly-experienced in-house mediators; our mediators are employed directly by Releasing Potential and not by an agency. In extreme circumstances where certain mediators are unavailable, we use a small pool of locum educational mediators who have worked with Releasing Potential for many years, all of whom are qualified mediators and Restorative Justice Facilitators with extensive SEND mediation experience.

Can my mediator help me argue my case?

No. It is not the role of the mediator to help a parent to argue their case. The mediator is there to facilitate a meeting and to ensure that both parties are able to get their views across. While the mediator will want an overview of the parents’ views and an understanding of what the parents hope to achieve from the meeting, it is not the role of the mediator to know every detail of a parents’ case or be versed in particular case law. The mediator cannot perform the function of legal council, and must remain independent. Parents who require this sort of advocacy should consult with a parents’ support service, or consider appeal via tribunal, for which a solicitor can be hired to advocate for the parents’ views.

Is mediation confidential?

Yes. The mediation meeting is confidential.

  1. Anything discussed with the mediator in private is confidential and will not be discussed with any other party without permission.
  2. Anything disclosed or discussed during mediation cannot be used outside of the mediation (at tribunal for instance).
  3. Any notes taken by the mediator will be destroyed at the end of the meeting; the Memorandum of Agreement should be the only official record of actions to be taken.
Will the mediation in any way affect the outcome of a later tribunal?

No. When cases are registered with the SEND tribunal following mediation, the tribunal will deal with the appeal on the facts of the case. The SEND tribunal may cover similar ground to that explored in the mediation but will reach its own independent findings and conclusions. Mediation is confidential and without prejudice to the tribunal process and the tribunal will disregard any offers or comments made during mediation. Partial agreement achieved by use of mediation services can help to focus on the remaining areas of disagreement in any subsequent appeals to the tribunal.

Who can I bring to mediation?

Parents are entitled to bring one supporter to mediation. This can be a support worker, professional, or friend. A solicitor can be present should parents request one in place of a supporter, but ordinarily attendance by a solicitor works more effectively in the more formal environment of the tribunal than at mediation. Additional attendees (a school teacher or SENCO for example) can be requested, but these must be agreed by all parties in advance.

After mediation

How long do I have to lodge a tribunal appeal after mediation takes place ?

If mediation does not resolve your dispute with the Local Authority, or only part resolves it, you can proceed to tribunal using your certificate of mediation, which is issued within 48 hours of your mediation. You will have 30 days to submit your tribunal appeal, from the date on the certificate. If you do not submit your application for tribunal within 30 days of the date of the certificate, it is highly unlikely that your appeal application will be accepted by the tribunal service. Please be aware that after issuing your mediation certificate, Releasing Potential Mediation’s involvement will end. It is the responsibility of the parent to lodge any tribunal appeal within 30 days of a mediation taking place.

Can Releasing Potential Mediation help with a tribunal appeal?

No. Our expertise is in mediation to resolve disputes. If you decide to proceed to tribunal without mediating, or you wish to lodge a tribunal appeal after mediation, we will no longer be involved. However, there are a number of support services available with expertise in the SEND tribunal. In Hampshire, Support4SEND offer help to parents appealing decisions made by their Local Authority. Releasing Potential Mediation can direct parents to available resources but cannot advise on the SEND tribunal.

 

What happens if the Local Authority do not adhere to the Mediation Agreement?

It would be highly unusual for the Local Authority not to adhere to the Mediation Agreement or the Memorandum of Agreement produced at a mediation. However, if you are experiencing any problems please contact the Local Authority representative in writing immediately, copying in the mediation team.

 

Can I mediate again?

Once a parent has been to mediation with the Local Authority in a dispute over a particular concern (refusal to assess for an EHCP/ EHCP refused after assessment/ disputing details of a final EHCP), it would be highly unusual for the Local Authority to fund a second mediation through an Independent Mediation service such as Releasing Potential Mediation. Once mediation has taken place a parent has only 30 days from the date of their mediation certificate to proceed to tribunal should the dispute remain unresolved. For this reason we advise parents to proceed to tribunal even if further meetings are discussed as an option, as a tribunal application can be withdrawn if no longer necessary, but cannot be submitted late.

Parents are able to request mediation each time an official decision letter detailing their right to appeal is sent by the Local Authority. This means that while it is unlikely that a parent will mediate the same dispute more than once, they may mediate for different reasons as part of the same process. A parent can request mediation in the case of a refusal to assess for an EHCP, then again in the case of an EHCP refused after assessment, and then again if they are appealing the details of the final EHCP.

Complaints

How do I complain about my mediation meeting?

Outcomes at mediation cannot be guaranteed; your mediator will facilitate the meeting but cannot control the decisions or input of the attendees.  Mediation is a confidential process, and is regulated by the Agreement to Mediate.  If you are concerned that a party at mediation has not adhered to the Agreement to Mediate, please put your complaint in writing to us and we will follow up with your Local Authority. We will endeavour to respond to complaints about other parties as quickly as possible, but this will depend on the organisation’s internal processes for handling complaints. If you are unhappy with your mediator for any reason, please contact us directly for an informal conversation about your concerns. If this does not resolve your concerns, please put your complaint in writing to us and send via email to alex@releasingpotential.com. We will respond to all written complaints within seven days.

A customer satisfaction survey can be accessed below if you would like to provide feedback on a mediation that has been completed.

Click here

Can I complain about the Local Authority after my appeal has been decided?

If you are unhappy with the service from your Local Authority, you can use their internal complaints procedure to make a formal complaint in writing. However, as mediation is a confidential and voluntary process, you can only complain in the case that the Agreement to Mediate has not been adhered to by the Local Authority Representative. The Local Government Ombudsman has the authority to investigate cases where a parent has a complaint about the way their appeal has been handled. However, the LGO will not investigate until the parent has finished the appeals process and this will usually mean waiting until after a SEND tribunal appeal has been heard.

Releasing Potential Mediation
7 Kingscroft Court
Ridgway
Havant
Hampshire
PO9 1LS
 
Charity No: 1097440
Company No: 4622100

07764 326384 (Mediation Helpline)

023 9247 9762 (Releasing Potential Head Office)

mediation@releasingpotential.com