EHCP Mediation and Top-Up Funding: Dispute Resolution Without Going to Tribunal

Not every SEND dispute needs to end at the Tribunal. Mediation exists as a formal resolution process between parents and local authorities, and it can sometimes resolve disagreements faster and with less cost than a full Tribunal hearing. Separately, disputes about "top-up funding" — the money the LA pays to schools above their standard budget to fund EHCP provision — are a common source of practical problems that directly affect what your child receives. Here is how both work.

What EHCP Mediation Is

Mediation is a structured, facilitated process where a neutral, trained mediator helps the parent and the local authority try to reach agreement on a disputed EHCP decision. It is not the same as a Tribunal. The mediator does not make a binding decision. Their role is to facilitate dialogue and help both parties identify a resolution.

The Children and Families Act 2014 requires parents to consider mediation before registering a Tribunal appeal. You must contact a mediation adviser after receiving the LA's decision notice. The adviser will explain your options. You can choose to pursue mediation or decline it and proceed directly to Tribunal — but you must obtain a certificate confirming you have contacted a mediation adviser before the Tribunal will accept your appeal.

This step is often misunderstood. Declining mediation and proceeding to Tribunal is a valid choice. The requirement is only to have considered it, not to participate in it.

When Mediation Can Be Useful

Mediation works best when:

• The dispute is primarily about communication or a specific, discrete issue that both sides are willing to resolve pragmatically
• The relationship between the parent and the LA has not completely broken down
• The LA appears open to reconsidering its position but has not done so formally
• Both parties want to avoid the cost, time, and stress of a Tribunal hearing

Mediation is less useful when:

• The LA has taken an entrenched position and is simply using mediation to delay proceedings
• The dispute involves a fundamental question of law or policy that only a Tribunal can authoritatively resolve
• Trust between the parent and the LA has completely broken down

Some parents find mediation produces useful outcomes — particularly where the dispute is about the wording of Section F provision and both sides can agree on specific, quantified replacements in a facilitated discussion. Others find it ineffective and use the certificate to proceed to Tribunal without delay.

What Top-Up Funding Is

Top-up funding is the additional money that a local authority provides to a school to fund the provision specified in an EHCP beyond what the school's own budget is expected to cover.

Schools receive a notional SEND budget — broadly, they are expected to fund the first £6,000 per pupil per year of SEND provision from their standard delegated budget. Provision that costs more than this threshold is supposed to be funded by the local authority through top-up funding.

In practice, the arrangements vary between local authorities and involve complex notional calculations. But the principle is clear: the cost of provision specified in Section F is the LA's legal responsibility under Section 42 of the CFA 2014. The LA cannot refuse to fund Section F provision on the grounds that the school should be absorbing the cost.

Why Top-Up Funding Disputes Affect Your Child

The most common practical problem is this: the EHCP specifies 15 hours of 1:1 TA support per week. The school agrees in principle but tells you they cannot deliver it because the LA's top-up funding contribution doesn't cover the actual cost of employing a TA at the required hours. The result is that your child's Section F provision isn't being delivered — not because the school is unwilling, but because the funding mechanism has created a gap.

From a legal standpoint, this funding dispute between the school and the LA does not affect your child's rights. The LA's duty under Section 42 is absolute. The fact that the school and the LA have an unresolved funding disagreement is not your problem as a parent — it is the LA's problem to resolve. You are entitled to the provision in Section F regardless of the internal funding arrangements.

However, in practice these disputes take time to resolve and your child is the one going without provision in the meantime. Escalating in writing to the LA — pointing out that Section F provision is not being delivered, citing the Section 42 duty, and asking what immediate steps the LA is taking — is the appropriate lever to pull.

Keeping Funding Disputes From Affecting the Plan

When reviewing a draft EHCP or annual review, watch for:

• Provision that appears to have been reduced or softened compared to professional recommendations — potentially because the LA is trying to limit its top-up funding commitment
• Vague Section F wording where specific provision would be more expensive — "access to TA support" instead of "15 hours per week of TA support"
• Suggestions that the school "has the capacity to meet this need from within its existing staffing" when you know the school is already stretched

These are signs that funding considerations may be influencing the plan's contents. The LA cannot legally reduce provision below what is necessary to meet the child's needs for budgetary reasons. If you suspect this is happening, IPSEA and SENDIASS can advise, and a Tribunal appeal on the adequacy of Section F is the formal remedy.

For guidance on reviewing Section F provision and challenging inadequate wording before the plan is finalised, see the England EHCP & SEN Blueprint.

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