‘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.