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What does mediation entail - refusal to assess for EHCP.

(20 Posts)
Youarentkiddingme Wed 09-Mar-16 19:49:03

Just that really! I'm waiting to hear if my application is successful - let's face it they rarely are - and next step would be mediation and appeal.

I have printed appeal forms which seem pretty straight forward. However I've received differing advice about mediation.

Some say get certificate and go straight to appeal and some say go to mediation if you think you have a case.

What does mediation entail? Who attends the meeting? I want to avoid a long conversation that goes round in pointless circles where the LA tries to justify themselves!

GruntledOne Wed 09-Mar-16 21:51:15

It might be worth trying mediation if your evidence is strong. The percentage of cases where local authorities concede appeals about refusal to assess is very high so maybe with a good mediator you could persuade them to agree without an appeal. The legal test is really quite straightforward, i.e. might your child have SEN and might they need special educational provision. But I think you need to find out how quickly it would happen, because if you can't have a mediation meeting within a month it might be quicker to get on with the appeal but tell the LA you're happy to meet up with them once the appeal has started.

Who depends the meeting depends what the issues are. If there are medical or social care issues, you should ask for representatives of the health authorities or social services to attend. Otherwise it will be someone from the LA, but they have to have authority to make decisions or at least easy access to someone who can make decisions - i.e they can't fob you off by saying it will have to go back to a panel for consideration. I suppose they might bring someone like their ed psych or a teacher. On your side it would probably be sensible to bring someone who can support you.

I think the idea is that it's a fairly informal process under which the mediator talks to the parties both separately and together. S/he can't favour one side or the other, and he's trying to facilitate some sort of way forward. However, normally the best way to facilitate that is with a bit of compromise on each side, and the problem with refusal to assess disputes is that, for you, it's an either/or situation and there's nothing much you can concede without giving up the idea of having an assessment altogether.

I guess ultimately it depends on what the LA's attitude is and whether you think realistically they might be persuaded to give in, and whether you've got strong arguments and evidence that you can put to them to change their minds.

Youarentkiddingme Wed 09-Mar-16 22:01:42

Thanks gruntled - that's fab advice.

So the mediator is someone seperate from the LA? Does someone from school attend?

I personally feel my evidence DS needs assessing is strong - ASD, poor verbal skills, behind academic targets, very limited progress in reading and spelling age, just been put on sensory programme, fine motor issues, independence issues etc. I have evidence of all and how it affects him as well as evidence of the progress he made when he attended nurture unit - which was higher!

knittingwithnettles Thu 10-Mar-16 10:17:23

Go straight for Appeal. Tempting as it might be to think the mediation process will achieve anything, it is just more paperwork for little gain. And it slows things down considerably. Unless you are using it to get the school to do more, in which case it might be useful.

Mediators are completely independent and pull issues together, come to a conclusion at the end of the meeting. But they still have no legal weight.

MaterofDragons Thu 10-Mar-16 12:07:46

I agree with both posters above. Mediation would be useful further down the line perhaps but for a refusal to assess I would go straight for appeal and hope they see sense before the tribunal. Good luck.

unicornpoo1 Thu 10-Mar-16 12:33:56

I went to mediation with my LA last year over refusal to assess. I felt it was pointless at the time, 3 hours wasted. The mediator didn't speak to each party separately in my case and even though the person from the LA who had the authority to make a decision, I was still told it had to go back to panel. It was agreed in the meeting that the school would put in further support but the school went back on this stating that their Sen budget had been cut (it's not legally binding apparently) so I made a parental request myself which was accepted and I feel they completed assessments because they already knew the background from speaking at mediation.

This is obviously an example from my LA, might be different in other areas but the best way to go seems to be tribunal. Get all the paperwork in and you can still mediate if you'd like. Good luck, it's so stressful.

Youarentkiddingme Thu 10-Mar-16 20:30:24

School won't agree to anything. They say things like 'making good progress' despite DS lack of progress in reading/spelling and not meeting his targets.
If mediation is just a tick box exercise then yes straight to appeal I'd worth it. I'll just get mediation certificate and move on!

NoHaudinMaWheest Thu 10-Mar-16 21:01:58

I went to mediation for refusal to assess a couple of weeks ago and, as others have said, it was of limited use for a yes/no situation. I think it could be really useful if you were arguing about the details of provision where the less adversarial set up would be better than tribunal I think.
For me the only advantage of the mediation was that it made it clear that the LA were prepared to fight it all the way and helped me decide that I needed to focus my energies elsewhere. I am in a different situation though as school is supportive and dd is making progress with that support.

MeirAya Thu 10-Mar-16 22:22:11

Mediation was a lot of stress - just ended up with the same peopl we'd seen before, basically saying 'it's up to us, not you, so please go away' and 'computer said no'. Which is what they'd said previously.

Though I guess, like NoHoudin, this helped us realise they really weren't going to budge a millimetre.

bedelia Fri 11-Mar-16 11:53:10

I'm feeling rather nervous about a mediation meeting we have early next week (TBH I wouldn't have agreed unless an appointment could be organised very quickly).

DS2 has been refused a needs assessment twice. The first time was considered a "mistake" as panel sat with his case literally days after receiving application with no evidence. Second time was also before the planned date, and it seems as though they hadn't yet received all of the documentation confused

We do have very strong evidence (which I can only assume was not considered by panel). In addition to many reports (Ed Psych, Autism Specialist, Early Years) nursery have produced a timeline of how support has been delivered, with a statement that they are unable to support his needs and that he can only attend for 2 afternoons a week. He's been on part-time timetable for close to 18 months...

I sincerely hope this works, as otherwise we'll be waiting 20 weeks or so for tribunal appeal and DS is due to start school in September sad

Has anyone had success with mediation at this stage?

GruntledOne Fri 11-Mar-16 17:53:09

I forgot to say, you can always propose mediation after you've begun the appeal - I think technically it's called something like dispute resolution at that stage, but it's the same thing. Sometimes the fact that they know they're going to have to justify themselves to a judge helps to concentrate LA officials' minds. If you go for that option, make it clear that you're not agreeing to any adjournment of the hearing.

MaterofDragons Sun 13-Mar-16 14:46:23

I was looking at old threads and noticed this

Does anyone know if the same/similar paragraph exists in the new code?

JaneHair Sun 13-Mar-16 15:05:51

Mediation for my DD was excellent and we are now at draft ehcp stage.

My local authority had made a big mistake in admitting in their original refusal letter that my DD had 'some SEN' because by law they have to assess if child has SEN. Which meant i kicked their ass at the mediation when i pointed this out to them, as did DDs wonderful physiotherapist who suported me at the meeting.

Youarentkiddingme Sun 13-Mar-16 16:12:04

Nice one jane grin

What o need then is a detailed explanation about why they refuse to assess DS.

They can't say he has no Sen as he has ASD and some LD!

bedelia Sun 13-Mar-16 16:48:07

Thank you so much Jane! In the first letter refusing to assess, our LA said pretty much the same [biggrin]

Youarentkiddingme Sun 13-Mar-16 18:58:23

La pretty much said the same on phone to me when his junior school applied and they refused to assess. In fact they told me his needs were very well met with IPA. I'm such a fool for not thinking at the time that they were admitting significant needs but wanted to keep him in the non statutory statement replacement la uses.

But at the time juniors were doing everything they could and secondary were promising to continue it.

Rolls up sleeves hoping they use the same wording and I can begin the fight wink

JaneHair Mon 14-Mar-16 09:29:37

I will come back to this thread later after work but another tip is that you need to explain why your child's disability or condition is a 'special educational need' eg why it impacts on their ability to learn and participate at school. I will come back later smile

bjkmummy Tue 15-Mar-16 08:12:06

some people can be successful at mediation - I am aware of times when the LA have overturned their decision and then agreed to assess - the problem is that it all seems so hit and miss

JaneHair Tue 15-Mar-16 09:31:41

IPSEA have a fantastic helpline for parents going through this situation. And Ambitious about autism have great advice on their website

ElementaryMyDear Tue 15-Mar-16 09:49:58

I'd recommend SOS SEN's helpline, I find them really good.

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