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Bradford Council SEND mediation arrangements with effect from 1 September 2014 under the Children and Families Act.
The Children and Families Act 2014 provides the opportunity for parents and young people to go to mediation before they can register an appeal with the First-tier Tribunal (Special Educational Needs and Disability) (“the Tribunal”).
Education, health and care (EHC) assessments and EHC plans will be start to replace the current system of assessments and special educational needs (SEN) statements and learning difficulty assessments (LDAs) from 1 September 2014.
From 1 September 2014, new mediation arrangements are available to parents and young people who are subject to the new EHC needs assessment and EHC plan system. The new mediation arrangements will not apply to those who still have SEN statements or LDAs.
Mediation – What is it and what are the benefits?
Mediation provides an opportunity for the parties involved in a dispute around an EHC assessment or plan to talk through their issues, express their feelings and needs, and find solutions to the problems at hand.
Once the mediator has spoken to the parties concerned to find out more about the background to the case and their current circumstances, they will run a ‘joint session’ leading parties through a structured conversation with a view to reaching new understandings and agreeing upon next steps.
Mediation sits outside other forms of dispute resolution. In particular, it is not an evidence-based or legal process and the mediator is not empowered to take decisions for the parties on the matters arising.
There are four principles that mediator upholds:
- Impartiality throughout the process
- A non-judgemental attitude towards the parties, their issues and the nature of any agreements reached
- The conversations a mediator has with parties are confidential
- That mediation is voluntary
Mediation is about finding solutions that work for all; it can have an impact on reducing tensions and improving working relations; and timely progress can often be made on a problem.
In short, mediation helps parties resolve their differences through informal, structured conversation.
Although contracted by the Council, mediation providers offer a fully independent, impartial service. Contact details for the mediation providers for Bradford are at the end of this document.
The mediation adviser is a company called Collis Mediation Ltd-a "What is Mediation" Guidance has been produced By Collis Mediation with input from key stakeholders and can be view in the resources file at the bottom of this page.
When can you appeal to a Tribunal?
Parents and young people will have the right to appeal to the Tribunal when the Council has decided:
- Not to secure an EHC needs assessment for a child or young person
- Not to draw up an EHC plan following an EHC needs assessment
- Or, where an EHC plan has been drawn up
- The description of the child’s or young person’s special educational needs as specified in the plan
- The special educational provision specified in the plan
- The school or other institution specified in the plan, or the type of school or other institution specified in the plan
- The fact that no school or other institution is named in the plan.
- Not to secure a reassessment;
- Not to amend or replace an EHC plan following a review or reassessment;
- To cease to maintain an EHC plan.
The decision notice to the parent or young person
When sending a notice to a parent or young person either conveying one of the decisions set out above or when sending a final plan or amended plan to a parent or young person, the Council will inform the parent or young person of:
- Where the Council is sending a final EHC plan or amended plan, their right to mediation about the education, health and social care elements of the plan
- The requirement to obtain a certificate either following the receipt of information about mediation or following mediation before they can register an appeal with the Tribunal
- The details of a mediation adviser from whom the parent or young person can obtain that certificate
- The timescale for requesting mediation, which is two months from the date of the notice
- The requirement to inform the Council –
- if the parent or young person wishes to pursue mediation
- what they want to pursue mediation about (the mediation “issues”)
- if that includes the fact that no health care provision, or no health care provision of a particular kind, is specified in the EHC plan, and the health care provision that the child’s parent or young person wishes to be specified in the EHC plan
- The contact details for any person acting on behalf of the Council whom the child’s parent or young person should contact if they wish to pursue mediation.
Parents and young people do not have to contact the mediation adviser if they only want to appeal to the Tribunal about the school or other institution named in the plan, the type of school or other institution specified in the plan, or the fact that the plan does not name a school or other institution. Going to mediation does not affect the right, subsequently, to appeal to the Tribunal.
The mediation issues
If the parent or young person contacts the person named in the decision notice (see final bullet point in the above section), that person will take down details of what the parent or young person wants to go to mediation about. If that includes health care issues the Council will, within three working days, inform each relevant health commissioning body of what the parent or young person wants to go to mediation about and the health care provision the parent or young person wants to be specified in the plan.
Where the parent or young person only wishes to pursue mediation about the health care elements of the plan then it is for the relevant health commissioning body (or if there is more than one, the relevant health commissioning bodies) to arrange the mediation. The Council does not have to do anything further in this instance, other than to inform the health commissioning body or bodies. Any mediation which involves health care issues and either or both of the education and social care aspects of EHC plans will be arranged by the Council.
The mediation adviser and the certificate
If the parent or young person has contacted the mediation adviser following referral from the Council’s special educational needs (SEN) services and informed the mediation adviser that they do not want to go to mediation about the matters which can be appealed to the Tribunal then the mediation adviser will issue a certificate to the parent or young person within three working days and the parent or young person can register an appeal with the Tribunal.
Mediation advisers may not issue a certificate to the parent or young person if the parent or young person has not contacted the mediation adviser within two months of the local authority’s notice referred to above.
Where the parent or young person informs the Council’s special educational needs (SEN) services that they want to go to mediation about one of the matters which they can appeal to the Tribunal about and/or the social care element of the plan, whether they want to go to mediation about the health care element of the plan or not, SEN services will arrange mediation for the parent or young person within 30 days.
In order to facilitate attendance at mediation Bradford Council, where it arranges the mediation, will pay the following expenses where it has agreed to do so before the mediation and following the receipt of satisfactory supporting evidence of the expenses claimed:
- Standard class public transport fares for the parent and their child or the young person.
- A mileage rate of 25p per mile for travel by car or motorcycle.
- Taxi fares.
- Expenses up to £81 per night for inner London or £71 per night for elsewhere or £21 per night if the stay is with family or friends.
- Repayment for loss of earnings up to a maximum of £45.
- For a registered child or young person, engagement of a registered child or adult carer at care expenses £5.35 per hour, for each child or young person.
When mediation has been completed and the mediation issues have included matters which can be appealed to the Tribunal, the mediator will issue a certificate within three working days to the parent or young person. If there has been no resolution of the disagreement over these matters, then the parent or young person can register an appeal with the Tribunal. If the mediation issues have included the social care element of an EHC plan then the parent or young person has the option of making a formal complaint under the ‘Local Authority Complaints Procedure’ if they have not already done so and, if they think the local authority has treated them unfairly as a result of bad or inefficient management, they can refer the complaint to the Local Government Ombudsman.
Similarly, if the mediation issues have included the health care element of EHC plan and there has been no resolution at mediation with the relevant health commissioner(s) the parent or young person can make use of the NHS complaints arrangements if they have not already done so and, if they are dissatisfied with the way that the NHS has dealt with their complaint, to the Parliamentary and Health Service Ombudsman (Link to this).
Where there has been either full or partial agreement between the local authority and/or the health commissioner(s) and the parent or young person at mediation, a mediation agreement will be recorded in writing. Where agreement has been reached to do something in relation to the social care element of the EHC plan the Council will do that thing within two weeks of the mediation agreement.
Where the mediation agreement requires the Council to do something in relation to a matter which can be appealed to the Tribunal the Council will do that within the following time scales:
- If the agreement is to cease to maintain an EHC plan the local authority will cease the plan immediately;
- If the agreement is to make an assessment or reassessment, the local authority shall within two weeks notify the parent or the young person that it shall make the assessment or reassessment and shall:
- Where, following the assessment or reassessment, the Council decides that it is not necessary for special educational provision to be made for the child or young person, in accordance with an EHC plan, notify the child’s parent or the young person of its decision, giving reasons for it, as soon as practicable, and in any event within 10 weeks of the mediation agreement;
- Where, following the assessment or reassessment, it decides that it is necessary for the special educational provision to be made for the child or the young person, in accordance with an EHC plan, it must send the finalised plan to the child’s parent or to the young person, the governing body, proprietor or principal of any school, other institution or provider of other relevant early years education named in the EHC plan and to the responsible health commissioning body as soon as practicable and in any event within 14 weeks of the mediation agreement;
- If the agreement is that the local authority will make and maintain an EHC plan the authority shall:
- Issue a draft EHC plan within five weeks of the mediation agreement;
- Send a copy of the finalised EHC plan to the child’s parent or young person within 11 weeks of the mediation agreement;
- If the agreement is to amend the special educational provision specified in an EHC plan, the Council shall issue the amended plan within five weeks of the mediation agreement;
- If the agreement is to amend the name of the school or other institution or type of school or other institution specified in the EHC plan, the Council shall issue the amended EHC plan within two weeks of the mediation agreement;
- If the agreement is to continue to maintain the EHC plan in its existing form the Council shall continue to maintain the plan; and
- If the agreement is to continue and amend the EHC plan the Council shall continue to maintain the plan and amend the EHC plan within five weeks of the mediation agreement.
The timescales referred to in this paragraph do not need to be followed where the parties to the mediation agree in writing to a different timescale.
The mediation adviser:
Collis Mediation Ltd
6 Marchcote Lane
Tel: 07715 958 290 Text or Call
This guidance has been drawn up based on the statutory guidance on mediation in Chapter 11 of the new Special Educational Needs Code of Practice and to comply with the regulations covering mediation in the Special Educational Needs and Disability Regulations 2014. (link to these if necessary)