Does kindness have the potential to shape how the state and public services treat individuals, and how individuals experience public services? Research by Carnegie UK Trust argues that it not only has the potential to do so, but it must. The implications for administrative justice could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity.
Country music often gets a bad rap as sentimental and depressing. What isn’t usually recognised is that the best of country music evokes a deep emotional attachment wrapped in disappointment and loosely threaded with optimism. It is the Nashville version of the current zeitgeist pleading for a reshaping of the relationship between citizen and state, a radical reimagining that places responsiveness, empathy, and social rights at the very heart of administrative justice.
Empathy and responsiveness have long been at the heart of mediation practice, but now this plea is being made powerfully also among ombuds and the wider administrative justice world as a necessary response to a distinct lack of empathy in the way citizens experience the state. At the Ombudsman Association conference in Belfast in May 2019, Jennifer Wallace from Carnegie UK Trust reported on an investigation carried out by Carnegie Fellow Julia Unwin into kindness in public policy. The report, Kindness, emotions and human relationships: The blind spot in public policy, argues for new thinking about why kindness matters and why we need to address the cynicism that is one of the typical responses to a call for emotions and relationships to play a prominent role in public policy. Building kindness into the citizen-state relationship, and addressing unkind systems, is a radical act, not a sentimental tug on the heartstrings.
The kindness that Unwin’s report explores incorporates emotions, relational care and attention to the way people feel about public services. It builds solidarity, fostering mutuality. It is radical, disruptive, messy. It is not about pity, about fostering a reduced demand for state services, or about ‘random acts of quixotic generosity’.
The urgency of kindness in public policy
Unwin identifies three key drivers in public policy that make the role of kindness an urgent and important matter: austerity is one, exerting pressures on those delivering public services. The other two are related to technology – tech to manage information (eg big data) and tech for managing communication (eg social media). One of her conclusions is that artificial intelligence (AI), as it continues to be rolled out across the public sector in decision-making, will be ‘deeply damaging’ if not met with a prioritisation of emotional intelligence.
There is a need to be bilingual, Unwin writes – to speak both the ‘rational’ language of policy (fair, transparent, evidence-based, systematic) and the ‘relational’ language of emotion (responsive, human, personalised). (At the conference, Wallace gave the example of ‘social capital’ versus ‘friends’ as an illustration of the divide between the lexicons.) Each of these languages on its own has a ‘shadow side’: ‘rational’ language, on the one hand, can prioritise predictability and the use of transactional measures to demonstrate impact and value for money (eg the 10-minute visit from the carer); ‘relational’ language can foster abuse and unfairness when access and ‘voice’ are not uniformly distributed (eg the loudest and most vitriolic Twitter user).
Pressures on kindness include an audit culture of measurability and an emphasis on professionalism. In administrative justice, the predominance of values of efficiency, effectiveness and value for money reflects rational language at the expense of relational language. In the ombuds world, also, these values hold dangerous sway, as does the move towards professionalisation. Introducing the language of emotion and relationships would be a welcome move if it makes the work of case handlers more meaningful and the experience of state decision-making more humane – for example, by allowing case handlers and frontline officials greater autonomy to be authentic in their exchanges with members of the public, by not speaking to a script, and by rewarding emotional intelligence rather than privileging efficiency, as current management models do.
Unwin points out that we often assume that kindness can’t be measured, when instead we choose not to measure it. But there is an inevitable tension between fairness and kindness, a challenge in administrative justice if a shift towards responsive kindness prioritises the individual (and her rights and feelings) over the collective public interest in fairness. That perception of fairness, however – of fairness as a fundamental value of administrative justice – implies there is a shared understanding of what fairness is and a misunderstanding of the ways it can foster inequalities. As Unwin writes, ‘To imply that consistency guarantees the fairest response ignores … the massive inequalities of voice and agency’.
Challenging the grip of austerity
The implications for administrative justice of a ‘kindness drive’ could be significant, but there are obstacles to overcome – not least the sense that kindness is an unaffordable luxury in times of austerity. But austerity’s grip should not remain unchallenged, and powerful arguments have been made (by UN rapporteurs past and present) that austerity is a political choice, not a necessity, and that by embedding social rights into accountability mechanisms, including ombuds, we might repair the social contract that a decade of austerity has broken.
Unwin argues that what’s needed is a shift in power that will lead to an increase in trust in government and institutions. Such a shift arises from a new social contract, one that recognises both individual capabilities and interests as well as those that are shared and that invests in human relationships rather than key performance measures. In this, Unwin shares a vision set out starkly by Philip Alston, UN Special Rapporteur on extreme poverty and human rights, in his report to the UN on poverty in the UK. Alston notes that ‘much of the glue that has held British society together since the Second World War has been deliberately removed and replaced with a harsh and uncaring ethos’ as successive governments have pursued the ideological agenda of austerity. In the face of the erosion of the post-war social contract in Britain, there are elements of optimism, particularly in the way kindness is incorporated into legislation by devolved administrations in the UK trying to mitigate the worst impacts of austerity.
Legislative recognition of social rights should be a part of this reimagining of the citizen-state relationship, Alston argues, echoing a call made by Paul Hunt, Chief Human Rights Commissioner, New Zealand and formerly UN Special Rapporteur on the Right to Health, for a sectoral approach to embedding social rights. In a recent Political Quarterly article, Hunt suggests that a realistic approach is to engage with the everyday places of housing, schools, hospitals and ‘to clothe each explicit social right with sectoral law, policy and practice’ – embedding, for example, the right to adequate housing into legislation and in statutory guidance, developed through a bottom-up and participatory process, and in policy-making, inspection and adjudication (which would include the practices of ombuds). This sectoral approach could be reinforced by recasting accountability as a loosely linked network of sectoral institutions that together work to monitor, review and take remedial action on social rights.
Walking the line
Amid the pessimism, there is inspiration to be found for ombuds, mediators and others involved in addressing citizen grievance. There is also inspiration for researchers who are interested in exploring the role of emotions in the delivery of public services, in state administration, and in the mechanisms for holding the administration to account. It isn’t a path of sunshine and rainbows, and it has its dark side, but we could perhaps channel our inner Johnny Cash to walk the emotionally intelligent line between optimism and despair:
Well, there’s things that never will be right I know
And things need changin’ everywhere you go
But ’til we start to make a move to make a few things right
You’ll never see me wear a suit of white
Ah, I’d love to wear a rainbow every day
And tell the world that everything’s okay
But I’ll try to carry off a little darkness on my back
Till things are brighter, I’m the Man In Black
‘Anecdote rich but data poor’: The exponential growth of mediation in a shadowy corner of administrative justicePosted: 26 February 2019
A little-known fact is that mediation is alive and well, indeed thriving, in administrative justice in England. This is in the area of special educational needs and disabilities (SEND), in which, under the Children and Families Act 2014, mediation has been given unprecedented prominence as one of the mechanisms for addressing challenges to local authority decision-making. This post considers the exponential growth in mediation since 2014 and suggests that in light of this growth, it is essential to improve the data collected and published on how such challenges are addressed in both mediation and the tribunal.
The term ‘SEND’ refers to special educational needs and disabilities and the identification of and support for children and young people with these needs from birth to age 25. This is the age group covered by the statutory framework in England under the Children and Families Act 2014 (CFA) and the 2015 SEND Code of Practice (2015 CoP). SEND disputes relate to decisions made by local authorities (and to some extent Clinical Commissioning Groups (CCGs), where health provision is involved) regarding identification of education, health and social care needs and the provision of support to meet those needs.
Decisions made by local authorities on SEND provision reflect many aspects of concern in administrative justice. These include the quality of initial decision-making, the accountability of public bodies, human rights considerations in the delivery of public services, and mechanisms by which people can challenge and appeal such decisions, all of which must be considered in the current context of severe budget pressures on schools and local government and concerns about efficiency.
As part of a knowledge exchange project I have been conducting in connection with the UK Administrative Justice Institute at the University of Essex, I have explored what we know and what we don’t know about the mechanisms for resolving disputes about SEND. The project is concerned with young people’s participation in SEND dispute resolution, and it has a particular focus on mediation because of the parties’ distinctive role as decision-makers in mediation, which is quite different from their role in tribunal hearings or ombud complaints.
A complex landscape
The disputes and complaints landscape related to SEND is complex and multi-faceted, with a range of complaint mechanisms for different types of disputes operated by different public bodies and private actors (schools, local authorities, Secretary of State, the NHS, the SEND Tribunal, mediation, the Local Government and Social Care Ombudsman, judicial review). Other public bodies with a role to play in SEND complaints include the Children’s Commissioner and Ofsted, both of whom have recently engaged with the issue of SEND in relation to school exclusions. The landscape is set out in a two-page table in the SEND 2015 Code of Practice (pp.246-247).
Unresolved disagreements and complaints relating to requests for statutory education, health and care (EHC) needs assessments and EHC Plans; changes to EHC Plans; and decisions on placement (the education setting named in the EHC Plan) can be lodged as appeals to the First-Tier Tribunal (SEND). The Ministry of Justice suggests that the year-on-year increase in appeals to the SEND Tribunal (27% increase in 2016-17) is due to the expansion, under the Children and Families Act, of the criteria of SEND to cover from birth to 25-year-olds in education (excluding higher education) and to cover health and care as well as education.
Most pupils with SEND do not have statutory EHC Plans, for which the local authority is responsible, but their needs and provision are determined by schools and colleges under what is called SEN Support. Complaints about SEN Support are not considered by the Tribunal but can be considered through complaints procedures of schools and colleges, and ultimately by the Secretary of State. This is an area identified as a gap for which no effective independent redress mechanism exists.
Other routes for disagreements and complaints about SEND include the Local Government and Social Care Ombudsman (LGSCO) for complaints about local authority social care and education; and judicial review for claims relating to a local authority’s failure to make provision set out in an EHC Plan. In 2017, the LGSCO published a report on local authority failures identified in the first 100 complaints it has considered about EHC Plans. It upholds 80% of the complaints in this area, far higher than the average uphold rate across its jurisdiction.
Polycentricity of SEND disputes
My experience as a SEND mediator reflects that although the dispute triggering the mediation is a challenge to a decision by the local authority, one that can be appealed to the tribunal, there are other disputes at play, including between parents and schools, parents and young people, local authorities and schools, local authorities and CCGs. The disputes in SEND are often polycentric, meaning they involve a number of parties with a range of interests and needs. Teachers can feel under pressure to deliver particular outcomes without adequate support or resources. They often feel parents make unreasonable demands about the type or level of support the pupil needs. In such cases, schools and teachers may neglect to involve parents or pupil in the planning of support. It is not uncommon for parents of pupils with SEND to be banned from school premises if they are considered troublesome, just as pupils with SEND are often excluded (formally or informally) for what is considered bad behaviour. Parents might become overprotective of their children, and their requests for support can clash with their child’s need to develop independence and social skills; this can arise in particular where parents are requesting transport to take their child to school or one-to-one learning support within the classroom.
Cost is a constant source of tension: parents might perceive that appropriate provision involves delivering a specialised programme or sending the child to a residential school; the local authority might consider that providing these options compromises their duty to all children and young people in their area and their responsibility to make efficient use of public funds. In this respect, other parents and pupils within a wider community may become stakeholders with interests in the outcome of a specific case in which they are not involved. The fact that resources for SEND provision are capped public funds means that what are seemingly ‘private’ issues involving one family can become ‘public’ issues with wider ramifications.
The inherent tension between effectiveness and efficiency, a tension that features in many aspects of administrative justice, and the polycentric nature of these disputes make mediation particularly appropriate because of its ability to accommodate many voices and perspectives. Unlike mediation in civil and commercial disputes, in the SEND context mediation does not prioritise settlement but instead prioritises collaborative problem-solving in a way that allows for expression of the parties’ different, and often conflicting, needs and interests. Settlement in the conventional sense happens (eg a local authority agreeing to a request to assess or to issue an EHC Plan) – this is suggested from the statistic of three-quarters of mediations that do not go on to appeal. But without better data we can’t conclude that those cases that mediate and do not go on to appeal are ‘resolved’.
Although mediation doesn’t result in judicial determinations in the way a tribunal does, it takes place in the shadow of the legal framework, taking account of statutory rights and obligations in relation to SEND, equalities and human rights. Mediation is open and holistic as a process in a way that allows parties to explore wider issues, ones that gave rise to the complaint as well as ones that influence the sustainability of any agreed outcomes. In that way, mediation is not an alternative to tribunal or the ombud in the conventional sense but is complementary to those processes and is, with them, part of the wider accountability network in SEND.
Mediation has been part of the SEND framework in England since the 2001 Code of Practice articulated the importance of independent disagreement resolution for these disputes and the duty of local authorities to make resolution services available. Details of mediation requirements and procedures are set out in the Special Educational Needs and Disability Regulations 2014. It is now a requirement, in all but a few exceptions, for parents or young people to consider mediation before appealing to the tribunal. Parents and young people who wish to appeal to the tribunal are required to obtain a mediation certificate (other than in cases involving only educational placement). The certificate is obtained after receiving information on mediation from a mediation adviser (who might also be a mediation provider) or after mediating; the aim is to give parents and young people the opportunity to consider attempting to reach a mutually acceptable agreement through mediation before going to appeal.
Whether or not to use mediation is voluntary for parents and young people; those who decide not to mediate following a Mediation Information and Advice Session (MIAS) will be issued with a certificate right away, which will allow them to lodge an appeal (within the deadline, which is either two months from the date of the local authority decision or 30 days from the date of the certificate, whichever is later). Those who agree to attempt mediation will be given a certificate following the mediation, which allows them to lodge an appeal (should one be considered necessary) within 30 days of the date of the mediation. If a parent or young person wants to use mediation, the LA is required to attend and to send someone with decision-making authority. This is the first use of compulsory mediation in the UK and presents a challenge to one of the fundamental principles of mediation – that it is voluntary for all parties.
Increase in mediation
There has been a steep increase in the number of mediations since the Children and Families Act 2014, from 75 in 2014 to 2,497 in 2017, as shown in the table below.
|Number of mediations, England
(Dept for Education Statements of SEN and EHCPs statistical releases 2015-18)
This increase has occurred without any parallel increase in scrutiny of the mediation process, aside from the recent development of SEND-specific mediator practice standards.. Other reasons to focus on mediation include the confidentiality of the mediation process and the distinctiveness of the parties’ role in mediation, which goes beyond attending or giving views and requires active decision-making.
Of the 2,497 mediation cases, 630 (25.2%) were followed by appeals to tribunal during 2017 (and others mediated in 2017 would have been followed by appeals in 2018). This is similar to the previous three years, in which roughly one-quarter of mediation cases were followed by appeals. No other data are published by the Department for Education on mediations, and mediation providers do not routinely publish data on the cases they handle.
There were more SEND mediations conducted than SEND tribunal hearings (2,497 mediations in 2017 compared with 1,599 SEND tribunal hearings in 2016-17).
|SEND Tribunal appeals, England 2016-17|
|Appeals registered||Appeals decided||Appeals decided in favour of appellant||Disability discrimination appeals|
In 2016-17, 4,725 appeals were registered in relation to SEN, an increase of 27% when compared to the prior year. The number of appeals disposed of was 4,387, of which 1,599 (36%) were decided by tribunal (the majority, 64%, being withdrawn or conceded). The statistics suggest a high percentage of tribunal appeals withdrawn or conceded before hearing and a high rate of success at hearing by parents in certain types of appeals. Of the decided cases, 1,418 (89%) were in favour of the appellant.
The knowledge exchange project A Place at the Table has illustrated the data gap in the area of SEND disputes, which has been described as an area that is ‘anecdote rich but data poor’. This is not particular to SEND; despite recent attempts to open up centrally held data and a commitment from HMCTS and the Ministry of Justice to work collaboratively with researchers, administrative data can be difficult to access and understand, and there is a shifting landscape in administrative data sources. Also, government departments take different approaches to collecting and releasing data.
How can we increase the quantity and quality of data collected and published for both mediation and tribunal cases? The Department for Education could work jointly with the Ministry of Justice to review the data collected and published and consider how to improve the statistics. This will in turn help with scrutiny of how these mechanisms are working, especially given the exponential rise in mediation numbers in the past four years. A first step might be to undertake a data audit of what information is collected on SEND complaints and disputes.
 For a comprehensive overview of legislative and policy developments, see Harris, N (2018), ‘Autonomy, Rights and Children with Special Needs: A New Paradigm?’, Working Paper 2, Centre for Research in Education Inclusion and Diversity, University of Edinburgh, University of Manchester, http://www.docs.hss.ed.ac.uk/education/creid/Projects/39_ii_ESRC_SENChildren_WP_2.pd f. For a comprehensive overview of procedures for complaints and dispute resolution, including mediation, for disabled children and young people, see Chapter 11 of Broach, S, Clements, L and Read, J (2016), Disabled Children: A Legal Handbook, 2nd edition, Legal Action Group, available at http://councilfordisabledchildren.org.uk/help-resources/resources/disabled-children-legal-handbook-2nd-edition.
 See, eg, Local Government and Social Care Ombudsman (2018), Under Pressure – the impact of the changing environment on local government complaints; National Audit Office (2018), Financial sustainability of local authorities 2018.
 Ministry of Justice, ‘Tribunals and Gender Recognition Statistics Quarterly, July to September 2017’, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/667449/tribunal-and-GRC-statistics-Q2-201718.pdf
 Available for years 2014-2017 at https://www.gov.uk/government/collections/statistics-special-educational-needs-sen#statements-of-special-educational-needs-(sen)-and-education,-health-and-care-(ehc)-plans
 Ministry of Justice, Tribunals and Gender Recognition Statistics Quarterly, July to September 2017.
One of the issues that worries me, and many of my mediator colleagues working in the special educational needs and disability (SEND) field, is how to encourage more young people to participate in decision-making in mediation. Both mediation and tribunals are options for dealing with unresolved disputes with a local authority or school about SEND support or provision. These are disputes about a young person’s entitlement to support, and there is generally widespread recognition that young people, as rights holders, should have their voices heard in the determination of such disputes. Yet the reality is that young people rarely attend mediation or tribunal hearings, and the mechanisms by which they can be involved as decision-makers are very limited. This reality for tribunal hearings is the focus of a recent blog post on www.ukaji by Dr Orla Drummond, whose research also resonates for mediation in SEN disputes.
The new SEN framework
The Children and Families Act 2014 (CAF) brought in an element of compulsion in that individuals wishing to challenge a local authority decision on SEN are required to consider mediation before lodging an appeal with the First-Tier Tribunal (SEN and Disability). The CAF also emphasises the participation of children and young people in decisions about their support and requires local authorities in England to have regard to their views, wishes and feelings; the importance of their participation, as fully as possible, in decisions; and the need to provide information and support to enable that participation.
The framework now applies to young people up to age 25, and the Act gives new rights directly to young people at age 16: when they reach the end of compulsory school age, it is the young person, and not their parent, who has the right to make decisions about their support. The Special Educational Needs and Disability Code of Practice (2014) sets out that the specific decision-making rights about SEN include requesting a needs assessment for an Education, Health and Care (EHC) Plan; challenging the contents of the Plan; requesting a particular school or college; and appealing to the tribunal about decisions concerning their EHC Plan.
It is this final point, and the participation of young people over age 16, that is the focus of this piece.
Mediation has been part of the SEN framework in England and Wales since the 2001 Code of Practice articulated the importance of independent disagreement resolution for these disputes and the duty of local authorities to make such independent disagreement resolution available. It has been given new prominence in the CAF and the 2014 Code because it is now a requirement, in all but a few exceptions, for parents or young people to consider mediation before they can lodge an appeal with the tribunal.
As mediators, our approach has been to explore how best to involve the child or young person in the mediation. Where the child is under 16 and the parents feel it is appropriate, we invite them to attend the mediation, and this has worked well where a young person is willing to participate. I have had a number of young people involved in mediations I have conducted, most aged 11-14 but more recently in the 18-20 age range. In the vast majority of mediations, however, parents attend without the child or young person. My experience bears this out: this past year I have conducted more than 40 SEN mediations, and only a handful have been attended by the young person. This is despite the introduction of the new framework and Code, with its emphasis on young people being involved.
In all cases, even if the child or young person is not attending the mediation, we invite them, via their parents or carers, to contribute their views on their educational needs and preferences. Depending on the issue in dispute, this might involve views on support in school or college, type of school, or even whether or not to proceed in education past age 16. We use a form that allows the child or young person to write or draw their responses to specific questions, or to dictate their responses for someone else to record them. We encourage parents to bring photographs or videos that convey useful insights into their child’s needs.
An evaluation of a pilot of young people’s rights to appeal to the SEN Tribunal in Wales indicated strong support for the principle of extending the rights of children and young people to participate in decision-making, but limited evidence of practice. Participation has most often been promoted as a duty on adults (eg parents or local authority officers) to obtain the views of children and young people. A recent project explored how mediators and local authorities are addressing pupils’ views and/or enabling their participation in SEN mediation. Other relevant research includes current work on modeling legal participation in courts and tribunals (G McKeever, Ulster University) and a review of current SEN disagreement resolution arrangements in England (M Cullen et al, Warwick University). In the US, a guidance document was produced in 2003 by the Consortium of Appropriate Dispute Resolution in Special Education (CADRE), drawing on research on pupil involvement in individual education plans meetings and peer mediation.
Young people as decision-makers
When the young person is over age 16, it is legally their decision to make (unless there is a question of capacity – see below). Again, it is invariably the parents who attend mediation on behalf of the young person, even those over age 16. In such circumstances, we seek authorisation that the young person agrees to the parents taking the case, and decisions on the issues, on their behalf. I am heartened to see more young people age 16+ attending mediations, but it is still the minority. In only one of the cases I mediated was the young person represented by an independent supporter, someone who can advocate on the young person’s behalf.
‘Capacity’ is a complex issue. The right of a young person to make decisions about SEN support is subject to their capacity to do so, as set out in the Mental Capacity Act 2005. This explains that capacity applies to individual decisions and may vary according to the nature of the decision; someone might be deemed to have capacity to make a decision about one issue and not another. In relation to SEND, the underlying premise is that young people, age 16+, even if they are deemed to lack capacity to make a particular decision, should be empowered to make as many decisions about themselves as possible (see 2014 Code of Practice s.8.21). One of the fundamental principles of the Mental Capacity Act is that a person is not to be treated as unable to make a decision merely because she makes an unwise decision. And local authorities should not use parents’ views as a proxy for the views of a young person (see SEN4You factsheet).
Welfare versus citizenship approaches
Aside from the issue of capacity, whether or not it is ‘appropriate’ for a young person to participate in mediation (or tribunal hearing) is not a straightforward assessment. It is not simply a matter of age – when is too young to be involved will depend on the individual and the issues in dispute. Presumptions about capacity can be misleading and disempowering. The nature of an individual’s needs or extent of their disability is often more about how we enable the participation – eg putting in place the structures and support that allows a young person to participate meaningfully.
In encouraging participation of young people of all ages, we as mediators are taking what has been called a child-focused approach. We work to guidance developed in 2004 for the SEN Mediation Regional Network, ‘The Voice of the Child in SEN Mediation: Guidelines for Practice’ (Shropshire Mediation Services, November 2004). This guidance emphasises the need to identify the purpose of the young person’s involvement – is it primarily to feed back information to the parents and local authority (a welfare approach), or is it to encourage the involvement of the young person (a citizenship approach)?
The welfare approach has been the predominant one in SEND mediation (and also arguably in family mediation). It was only in 2002 that children and young people were allowed to attend tribunal hearings, and even then this was at the discretion of the tribunal. The old 2001 Code of Practice expected local authorities to seek to ascertain the views of children and young people who, it states, ‘will be able to contribute valuable information about themselves and the ways in which they might like their needs to be met’ (s.7.85).
But this approach doesn’t sit well with the rhetoric on children’s rights, which reflects the role of young people as citizens and rights holders. One example is the final report of the Voice of the Child Dispute Resolution Advisory Group (March 2015), which argues that a shift is needed to a child-inclusive, rather than child-focused, approach by mediators. This report looked primarily at mediation of family disputes, but the findings and recommendations are applicable to the SEND context as well. The report states that the Advisory Group found ‘very few children and young people were being provided with the opportunity to have their voices heard during the mediation process. The evidence showed that hearing children’s voices was a minority activity.’
The Group also recognises that ‘embracing child inclusive practice raises questions about the mechanisms that are appropriate for including children and young people, ethical considerations about taking a children’s rights perspective, and implications for meeting the cost of providing this opportunity’ – issues it addresses in the report’s recommendations.
The UN Convention on the Rights of the Child sets out the rights of children and young people to be involved in decisions which affect them, to have their views listened to and taken seriously and to participate in proceedings. The Children’s Commissioner for England notes how young people’s participation is not only good for young people by improving their confidence, relationships, aspirations and their role as active citizens. As the Commissioner points out, it can help to build trust with adults and can improve decision-making: ‘Children and young people are key to coming up with new and helpful ways to improve their own and other children’s lives.’
Barriers to participation
Many barriers to children’s and young people’s participation in SEN mediation have been identified in research, including psychological damage to the child, the risk that the child may come across as more capable than parents had presented and the length of tribunal hearings. Barriers are also identified, as are ways to address these barriers, in Drummond’s comparative study of children’s participation in SEN tribunals in Northern Ireland and Wales. Many of these barriers and recommendations are relevant for mediation as well as tribunals. Attitudinal barriers about ability to participate reflect often misguided assumptions about capacity, as noted above. Potential conflicts between the views of the young person and her parents can be difficult to reconcile – but not impossible. Concerns about anxiety of the young person, and the need to shield her from negative or sensitive information about her needs, prioritise safety over participation.
These concerns are not unreasonable, but many can be mitigated with process changes, such as incorporating greater flexibility in the structure of meetings and hearings. My experience of conducting mediations of disability discrimination claims brought by disabled students against universities demonstrates to me that it is possible to include young people as full decision-makers in mediation. Those claims were brought by the young person, who attended the mediation and made the decision on settlement of the claim. There is no reason that most young people with SEN or disabilities cannot be the decision-makers in their own claims.
There is no doubt an issue of training – for the judiciary and for mediators – and a need for skilled independent supporters and advocates to work with children and young people and support their decision-making engagement. This research, and the work of the Voice of the Child Dispute Resolution Advisory Group mentioned above, shows that most of the barriers identified are societal ones that need to be addressed by mediation providers and tribunals.
Enabling young people aged 16-25 to participate in decision-making and resolving disputes about SEN is one of our biggest challenges as mediators. The Children and Families Act and new Code of Practice make it essential that we consider how we can address the barriers. Although this is a challenge also faced by the SEND tribunal, it is perhaps more important that in mediation, which fosters an element of collaborative working, young people’s right to make decisions is delineated from the rights of their parents. But this also carries more of a risk in mediation, where the parties themselves, and not tribunal judges, are the decision-makers.
It is not a simple challenge to meet. There is the issue of decision-making capacity and parents’ concerns about their child’s best interests. There is also the unique dynamic between young people and their parents, and between young people and those perceived to be in power, such as local authority officers. Young people may feel coerced into agreement, or their silence might be taken as tacit acceptance. There is the danger that disagreement will occur between the young person and her parents: ‘Mediators may find themselves in the position of eliciting input from a student when the parents do not want the student’s perspective to be considered,’ leading to ‘mediations within mediations’. There are attitudinal and structural problems to overcome, and there is a need for training.
So I don’t suggest this will be easy. But it is necessary, if we’re going to make a place at the table for young people.
 This blog post applies to the SEND framework and legislation in England. As SEN policy is devolved, separate frameworks apply in Northern Ireland, Scotland (where the term Additional Support Needs, or ASN, is used) and Wales. The issue of children and young people’s participation in SEND dispute resolution, however, is relevant UK-wide.
 D Holtom et al (2014), ‘Evaluation of a pilot of young people’s rights to appeal and claim to the Special Educational Needs Tribunal for Wales’, The People and Work Unit, Government Social Research No 65/2014.
 Mueller, Melissa, Anita Engiles and Marshall Peter (2003), ‘The Involvement of Students in Their Special Education Mediations’, a briefing paper for The Consortium for Appropriate Dispute Resolution in Special Education (CADRE), October, 2003, at www.directionservice.org/cadre/student.cfm.
 See, eg, N Harris, S Riddell, E Smith (2008), ‘Special Educational Needs (England) and Additional Support Needs (Scotland) Dispute Resolution Project: Literature Review’, University of Manchester/University of Edinburgh.
 O Drummond (2016), ‘Access to Justice Barriers for Tribunal Users’, Ulster University.
Making rights worth having: the report of the Lords Select Committee on the Equality Act 2010 and DisabilityPosted: 27 April 2016
‘We recommend restoring the Equality and Human Rights Commission’s power to arrange the provision of conciliation services for non-employment discrimination claims. The service specification should provide for a range of delivery methods to ensure it is accessible, including provision of face-to-face conciliation, and the service should take direct referrals from the Equality Advisory and Support Service or its replacement.’
Last month the House of Lords Select Committee on the Equality Act 2010 and Disability reported on its inquiry into the Act and concluded that government inaction is failing disabled people. The inquiry, which started in June 2015, received 144 responses to its Call for Evidence and heard oral evidence from 53 witnesses. The published report sets out the committee’s conclusions on a range of issues including the Public Sector Equality Duty, reasonable adjustments, access to services in transport, housing, and leisure facilities, and enforcement and access to justice. It highlights the barriers to challenging disability discrimination in terms of cuts to legal aid, court and tribunal fees, and procedural changes and notes that rights without enforcement are meaningless: ‘Rights which are unenforceable are not worth having.’
It was particularly heartening to see the Committee’s criticism of the Coalition Government’s weakening of the Equality and Human Rights Commission (EHRC) and its abolition of the EHRC’s power to arrange independent mediation (conciliation) for non-employment cases. I worked as an independent mediator with the original Disability Conciliation Service, set up by the Disability Rights Commission, and its successor, the Equalities Mediation Service. Over the years, from 2001 to 2013, we handled many hundreds of claims alleging disability discrimination in the provision of goods and services.
This provision, the report states, was one of the casualties of the Red Tape Challenge, and it was abolished, with other measures in the Act, because it was considered to place unnecessary or disproportionate burdens on business. The report suggests that the Government should have given the same consideration to measures placing an unnecessary or disproportionate burden on disabled people, and Baroness Deech, chair of the Committee, said: ‘Intended to reduce the regulatory burden on business, the reality has been an increase in the burden on disabled people.’
It’s useful to be reminded of the background of the mediation provision and its demise. From the report:
‘447. The Disability Rights Commission developed a conciliation service to which any complaint arising out of an alleged failure to provide goods or services in a non-discriminatory way under the DDA could be referred for resolution. When the Disability Rights Commission was replaced by the EHRC, section 27 of the Equality Act 2006 gave the EHRC the power to provide conciliation services.
448. In March 2011 the Coalition Government, as part of its examination of public bodies, issued a Consultation Paper putting forward a number of suggestions for changes to the role and functions of the EHRC. One of the questions asked was: “Do you think the Government should repeal the EHRC’s power to make provision for conciliation services, as part of the process of focussing the EHRC on its core functions?” Of the 293 responses received, 61 agreed, 206 disagreed and 26 were not sure. Despite this the Government concluded:
“We have now decided to repeal the EHRC’s power to make arrangements for the provision of conciliation in non-workplace disputes. We do not believe that arranging conciliation services for individual cases fits with the EHRC’s strategic role, or that it is necessary in light of the range of good quality, accessible and effective mediation provision already available throughout England and Wales and Scotland.”
Accordingly section 27 of the Equality Act 2006 was repealed by section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013.
449.The EHRC wrote: “The removal (which we opposed) of our statutory power to arrange the provision of conciliation services for non-employment cases is a particular concern for disabled people given that the majority of non-employment discrimination claims are disability cases.” That concern was shared by the Discrimination Law Association, who told us in written evidence: “DLA members advising and supporting disabled people in non-employment discrimination claims have called for re-instatement of the EHRC power to establish a conciliation service.” Most forcefully Nick O’Brien, when asked which two recommendations he would like to see this Committee make, said: “The Disability Rights Commission had a power to arrange for a conciliation service in respect of goods, facilities and services disputes. The need for that, or something similar, has become more acute now that the prospect of taking cases to court—civil cases in the county courts and even in tribunals—is so significantly reduced.”
The committee also considered whether a new disability ombud scheme should be created. Evidence to the committee noted the plethora of existing ombudsman schemes: As our colleague Nick O’Brien stated, ‘the landscape is already quite cluttered … The challenge is to make sure that the existing ombudsmen more selfconsciously use the powers they already have to embed equality and human rights in what they do.’ The committee was persuaded that yet another ombudsman is not needed and that, instead, the mandates of other ombudsmen should be widened explicitly to cover disability issues.
‘461. We recommend that the Government amend the mandates of those regulators, inspectorates and ombudsmen that deal with services most often accessed by disabled people to make the securing of compliance with the Equality Act 2010 a specific statutory duty.
Another very useful recommendation relates to data on non-employment discrimination claims. It has been impossible to identify the number of such claims made in county courts because these are not specified. The report recommends:’that HM Courts and Tribunals Service be required to collect from all county courts and from the Employment Appeal Tribunal, and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals.’
The report overall makes fascinating reading. I look forward to seeing how the Committee’s recommendations are taken forward.
Earlier this month the Independent Police Complaints Commission (IPCC) published guidance on handling complaints about discrimination. The guidance follows a number of critical reports by the IPCC, which found significant failings in the way police forces carried out such investigations and engaged with complainants. It raises an interesting question: To what extent do ombuds and other complaint handlers hold bodies they investigate to account for discriminatory behavior and decision-making?
Fairness is a key concept of the ombuds approach: both fairness of decision-making and fairness of the processes used to handle citizen-consumer ocmplaints. Yet ombuds schemes and other complaint handling bodies in the UK have generally been reluctant to tread into the territory of naming discrimination and human rights breaches in findings on complaints. Part of the reluctance is the concern that any determination of a breach of equalities and human rights legislation must be made by a court. Breaches of human rights can, however, inform findings of maladministration, but as noted by Buck et al in The Ombudsman Enterprise, this innovative use of the law has its dangers, not least the risk of judicial review.
Promoting and protecting human rights is the primary function of National Human Rights Institutions (NHRIs), some of whom also have complaint handling roles. A current study of the role of NHRIs in dealing with human rights complaints is exploring how that complaint-handling role fits with the wider strategic function, and to what extent informal processes such as mediation are being used for these. (We were interested to note that the researchers are finding, as we did, that certain ADR and informal processes are ‘amorphous and difficult to isolate’ and that shared meanings and forms of, for example, mediation appear not to exist.) In some countries, the NHRI is also an ombud, but in the UK ombuds are separate organisations; the Council of Europe uses the term ‘national human rights structures’ to refer to those commissions, ombuds and police complaints mechanisms that have a human rights mandate but are not the accredited NHRI.
Last year the Equalities and Human Rights Commission published a guide to human rights in action. The section of the report on regulators, Inspectorates and ombuds (RIOs) includes several case studies, from the Parliamentary and Health Service Ombudsman, the Prisons and Probation Ombudsman and the IPCC, illustrating the use of the human rights framework in complaints handling and investigation.
Among those ombuds who have been proactive in identifying these issues in complaints is the Parliamentary and Health Service Ombudsman (PHSO), which has published a number of reports highlighting the human rights and discrimination elements of many complaints, particularly about vulnerable people in care or hospital (for example, this one on disability discrimination). The former Parliamentary and Health Service Ombudsman has stated that ‘the Ombudsman’s approach includes an overall concept of fairness, a fundamental commitment to the humanity of individuals and their right to equality in treatment and outcomes. Issues of discrimination and equalities underlie many of the complaints which come to the Ombudsman…’.
The PHSO makes clear in its general standards for determining complaints that it will expect a public body to comply with the equalities and human right legislation and will hold them to account:
‘It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations….
If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.’
The Northern Ireland Ombudsman has been in the forefront if this work and has worked closely with the NI EHCR to develop a manual and training for complaint handlers to help them identify human rights issues in complaints they receive.
The UK Financial Ombudsman Service has published briefings on the need for businesses to comply with the Equality Act, such as this one. One of the issues is, as FOS points out, ‘consumers rarely articulate their complaint as “discrimination” – or invoke the Equality Act. More often than not, they’re simply frustrated at being unable to access the services they want or need to – and feel that the business’s processes are unnecessarily inflexible and impersonal.’
‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’ Nick O’Brien
An optimistic view is that ombudsmen in the UK will ‘increasingly contribute to wards the resolution of human rights issues in public administration, both in conducting investigatory work and in the office’s relations with other bodies’ (Buck et al, The Ombudsman Enterprise, 2011). Nick O’Brien, a human rights specialist and ombuds-watcher, has noted the increased consumerism plaguing ombuds schemes and argues that ombuds can mark themselves out among complaint-handling bodies by having a focus on discrimination and human rights issues: ‘If ombudsmen want a broader canvas on which to paint their distinctive contribution human rights is probably the best, perhaps the only, place to turn at present.’
How far do complaint handlers go in identifying discrimination or human rights as issues in complaints? How do ombuds and complaint handlers use the legal framework for discrimination and human rights in their casework and findings? Perhaps these questions need further research.
by Varda Bondy and Margaret Doyle In October 2014, we launched (together with Carolyn Hirst) a mapping study titled ‘The use of informal resolution approaches by ombudsmen in the UK and Ireland ’. We discussed at length whether to use the words ‘ombud/s’ or ‘ombudspersons’ rather than ‘ombudsman/men’, but decided on the latter to avoid the title itself becoming the centre of attention rather than the content of the report. However, we felt compelled to touch on this question at the launch, which was attended by a number of ombudspeople as well as academics. After presenting one aspect of our findings, concerning the multiplicity of terms used by schemes to describe the same processes and identical terms to describe different ones, we added a closing remark on the problematic matter of terminology in the use of the term ‘ombudsman’ itself. This included an assertion that the word ‘man’ in…
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Students at private universities are to get the right to take complaints to the sector’s independent adjudicator.
Times Higher Education reports that a clause applying to students in England and Wales was added this week to the Consumer Rights Bill currently making its way through Parliament. It will give students at private higher education institutions in receipt of Student Loans Company funding the right to take unresolved complaints to the Office of the Independent Adjudicator for Higher Education (OIA) – a right currently only given to students at publicly funded institutions and at the few private institutions that have voluntarily subscribed to the OIA. All students at private providers with at least one course designated for SLC funding will have access to the OIA. The change is intended to take effect on 1 September 2015.
Interestingly, this might also lead to more students having access to mediation for their complaints, if they choose. The OIA is one of a few independent ombuds schemes that uses mediation as one of its complaint-handling tools. In addition to its process of review by its team of adjudicators, it has an external panel of independent mediators. In appropriate situations and with agreement of both parties, the OIA can refer a complaint to mediation. This can be as an alternative to review or, in some cases, once a complaint has been reviewed and the adjudicator upholds it fully or in part. It can be useful, for example, for reaching agreement on actions to remedy a problem and to prevent future problems, particularly where there is an ongoing relationship between student and university.