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.
A new and aggressive business has emerged in recent years – the business of stoking compensation culture hysteria. We see evidence of it in the press and, more worryingly, in government policy-making fuelled by a hatred of lawyers. It reminds me of the ‘PC gone mad’ hysteria that was so lively in the 1990s and still rears its unlovely head now and again. Like most hysterias, neither of these – the PC gone mad and the compensation culture – is rooted in an evidence base. Why, then, do they have such hold on the public, and political, imagination?
One example is a report published last year by the Centre for Policy Studies, a thinktank that describes its aim as advocating ‘a distinctive case for smaller, less intrusive government, with greater freedom and responsibility for individuals, families, business and the voluntary sector’. The Social Cost of Litigation by Frank Furedi examines two areas, health care and education, and argues that the fear of litigation is affecting the way professionals practice and, as a consequence, producing damaging outcomes.
In particular, Furedi focuses on what he calls ‘demand for recompense for accidents’ – presumably accidents which, in the good old days, would have been chalked up to experience, with no one to blame. Rising compensation levels, he suggests, lead people to make financial claims against public bodies, and the fear of such claims makes professionals risk averse, which in turn ‘erodes professional autonomy, stifles innovation, leads to defensive practices in both hospitals and schools and encourages greater bureaucracy’.
Anecdote as evidence
The paper has so many holes ripe for picking that it’s difficult to choose which to write about. To call this report an ‘investigation’ into litigation in education and health care is farcical. First and foremost, it refers to new research – but what this ‘research’ amounts to is a series of anecdotes with unidentified individuals who seem to have have been selected on the basis of sharing the hysteria brief of the author.
This evidence includes, for example, an account by an unnamed headteacher of the damaging effect of a parent asking questions: every time the school gets a request for a copy of policies and risk assessments, it’s a week’s work to fulfil the request. The question crying out to be asked is – how can it take that much time, unless you don’t already have policies in place and have to write them from scratch?
It is a truism that one person’s bureaucracy is another’s transparency, or accountability – but possibly a truism unfamiliar to this headteacher.
I can do anecdote, too. I mediated a disability discrimination claim brought against a private nursery by parents of a toddler with autism. The boy had been excluded from his nursery for biting another child. The nursery had struggled to balance his needs with its duty of care to staff and other children. In six months there had only been this one recorded incident. The nursery staff claimed he had been biting them many times in that period. There were no records of this, nor any records of what steps had been taken to address his behaviour. A child who could not speak and who in frustration used biting as a means of communication was labeled bad and excluded. Only by starting a legal challenge could the parents get the head of the nursery to agree to meet in a mediation and discuss what impact this had on them as a family. What came out of it was a clear way forward in terms of improving the procedures for logging incidents and enhanced training for staff – and yes, financial redress, but in this case it was in the form of fundraising for an autism charity.
I agree wholeheartedly with Furedi’s statement that ‘…we need to challenge the expectation that professional best practice in the public sector should be measured by the absence of complaints or litigation’. But this is followed by the rather chilling statement: ‘A genuine return to respecting the principles of professional judgement would have a humanising effect on public services.’ In other words, let’s turn the clock back to when people respected doctors and teachers and didn’t ask questions or make demands. Doctor, after all, knows best.
There is more than cosy nostalgia at work here. It is essentially an attack on access to justice, an attack on rights – the extension, awareness and enforcement of rights. Furedi writes that ‘professional autonomy is being increasingly challenged by its confrontation with an agenda of consumer rights’. Nothing says more than his use of the word ‘agenda’, a term laden with disgust and dismissal.
The source of ‘evidence’ on the rising culture of naming, blaming and claiming in education are articles from the Telegraph and the Daily Mail on outrageous sums awarded for ridiculous injuries. For more robust evidence, see the speech given in March this year by the Master of the Rolls, Lord Dyson (“Compensation Culture: Fact or Fantasy?“). He shatters myths around court decisions that gave rise to hysteria in the popular press, and he concludes that there have been no developments in substantive law encouraging a compensation culture.
The Furedi report argues that claims ‘inexorably’ lead to a diminishing of the public services and decline in the quality of education. Tell that to the young people with special educational needs who have had to fight for inclusion in mainstream schools. Those with behavioural difficulties face a constant struggle against being labeled bad. A survey conducted by the National Autistic Society (NAS) found that some 21% of children with autism are excluded, permanently or otherwise, from both mainstream and special schools, the most common reason given being that the school was unable to cope with the child.
Others find that without legal challenges, schools and local authorities won’t make the physical changes needed so that children with mobility impairments or cerebral palsy can attend mainstream schools. Let’s follow Furedi’s lead and use anecdote here – but from a named individual who went public with his struggle. In April 2010 Jonathan Bartley, a parent of a child with cerebral palsy, confronted David Cameron about his claim that there has been a ‘bias towards inclusion’:
‘We personally had to battle for two years to get our son into our local school, which his two sisters attend. It cost us thousands of pounds to go to a tribunal, which we then won. The local authority then said they would appeal against the decision to the high court. At that point, the secretary of state intervened, and paid for some modifications to the school. Samuel now attends the school.’
Instead of discouraging challenges, we need instead to encourage smarter complaining and better handling of complaints. Late settlements by local authorities is a constant problem with the SEN and disability tribunal. Whether it’s a tactic or it merely reflects departments under pressure, such settlements have a disproportionate cost for both parents and local authorities. The latter is, as Furedi would be the first to point out, public money being misused.
‘This is the perverse outcome of the modern fantasy of redress through litigation: every time we bring a claim against our health or education services, we are in effect suing ourselves. And every time we are encouraged to ‘name, blame and claim’ as an act of responsible citizenship, to stop other people sharing our bad experiences, we end up contributing to the worsening of these very services.
Where’s the evidence for that? This confused argument – that public services suffer when public bodies pay financial redress – has no foundation. The former Parliamentary Ombudsman Ann Abraham was straightforward in her condemnation of such an outdated approach: ‘Much work still remains to be done on the issue of financial redress. I’m still bewildered by the different attitudes to redress across the public sector: from local government where it appears to be understood and accepted; to central government where it is accepted – but somewhat grudgingly much of the time; to the NHS where it feels like pulling teeth… .’
Complaints aren’t the enemy
An interview with Furedi allowed him to elaborate on his views:
“In conversation, Furedi is steadfast: ‘There shouldn’t be compensation claims for financial reward in the public sector. It is a completely irrational process because who pays for it? It is not the nurse or the teacher or the doctor who is found liable. No, it’s the taxpayer, the public purse – that is what pays for it. It leads to an irrational use of resources. People talk about the postcode lottery. This is even worse because resources are distributed according to whether you have a good lawyer or a bad one.’ “
What better argument for encouraging a culture where complaints are welcomed and efforts are made not just to resolve the individual grievance (which, yes, sometimes requires financial redress) but also to learn from complaints and improve? One way to do this, and to save public money in the bargain, is to encourage earlier use of mediation – independent, rights-based mediation to help resolve the complaint and identify what needs to change.
Where a complaint has no merit, mediation offers a cost-effective way to identify what has led to it – a misguided sense of justice, an unreasonable demand for cash, or – far more likely, in my experience – a breakdown of trust and communication. Trust is rightly cited by Furedi as a key issue – but trust isn’t earned by virtue of a degree certificate on display in the headteacher’s office.
The report suggests that it’s misguided to think that complaints foster greater accountability. Why? It argues that the institutionalisation of a culture of complaint has caused a rise in complaints. How do we know that complaints aren’t on the rise because of a decline in services or, more optimistically, a sign of progress and greater awareness? Show me the evidence.
 Barnard et al, Inclusion and autism: Is it working? (NAS, 2000).
 From “The role of the independent scrutineer: ensuring effective accountability”, Ann Abraham’s Annual Lecture to the Centre for Public Scrutiny, Feb 2005.