The participation of children and young people in special educational needs mediation

How do children and young people participate in mediation to resolve disputes about their special educational needs provision? Ben Walsh reports on his recent study (featured in UKAJI’s Current Research Register profiles, May 2016 update) and forthcoming article [published and now available here] and identifies the need for further research on the views of children and young people.

By Ben Walsh

The Children and Families Act (2014) and Special Educational Needs and Disability (SEND) Code of Practice (2015) provide the basis for the reforms to special educational needs (SEN) that came into force in England in September 2014. The changes signalled new arrangements for resolving disputes about SEN provision between parents (or young people) and local authorities (LAs), centred around the issuing and content of education, health and care plans (EHCPs), which specify LA-funded support for individual children and young people.

The 2015 Code gives new prominence to the promotion of free, independent mediation to try to resolve disagreements and reduce the number of parental appeals against LA decisions through the First-Tier Tribunal. LAs must now make arrangements for mediation and agree to take part, although it is voluntary for parents and young people (choosing not to attend does not affect parents’ right to appeal, but those wishing to do so must first consult with a mediation advisor).

The reforms also heralded a key policy commitment to enhancing the quality of support through the principles of engaging children and young people (CYP) in decision-making. A plethora of research highlights the manifold positive outcomes emerging from CYP participation in choices regarding their education. These principles have long been enshrined in international law. The United Nations Convention on the Rights of the Child requires that children are given the opportunity to express their views, and that these should be considered, in any administrative or judicial proceedings affecting them.

Exploring the impact

The reality, as copious studies over the past decade tell us, is that these rights have been denied consistently, or often observed with mere tokenism, when it comes to decisions made for CYP with SEN. The multifarious reasons for this include entrenched and disempowering presumptions about capability and whose voices hold authority and legitimacy. But is the new Code making a difference? What influence are CYP themselves able to have in SEN disputes now?

A recent study, conducted at the Faculty of Education, University of Cambridge, examined the initial impact of the reforms on CYP participation in SEN mediation.[i] It explored how LAs and mediators are implementing the Code in its early stages, alongside barriers and facilitators to CYP involvement and perceived good practice. Interviews took place with parents, mediators, LAs and advocates to address three research questions:

 (1) How do parents and professionals feel about CYP participation in mediation?

 (2) How, and to what extent, does CYP participation currently take place in mediation?

 (3) What are some of the perceived barriers and facilitators to CYP participation in mediation?

The findings express a pervading view from professionals that being listened to (and particularly attending mediation) is empowering for CYP as it can crucially affect outcomes. The study identified a much greater commitment to CYP participation compared to research prior to the reforms, with much evidence of positive practice in direct (i.e. when the CYP attends) and indirect participation.

There is evidently also a considerable way to go. The interviews revealed persisting perceptions of surface compliance and reports that professionals did not always consider CYP views. ‘That’s the idea of the reforms, isn’t it?’, said one parent, ‘but, you know, smiley face questionnaires are kind of what you get, whereas … staff haven’t stepped back and thought “what’s going on for this child? How can I really listen to what they’re telling me?”’.

Parents presented mixed attitudes. Some discouraged attendance to protect children from adverse emotional consequences, linked to the daunting, formal setting and open discussion of their needs. General concerns about eliciting CYP perspectives also included the risk that their wishes might not be met and a sense of limited CYP capacity/ understanding.

Questions also arose about who should decide the most suitable level of engagement. While some parents emphatically conveyed the distinct view of the CYP, others restricted their influence. Parents sometimes considered this the most effective way to attain provision, and worried the CYP view might reduce chances of an outcome in their child’s best-interest. However, CYP voices can be lost in such cases. This was particularly noted in cases concerning young people, who are legally entitled to make the decisions provided they have the capacity. This highlights that moving beyond reliance on parental advocacy may be essential to guarantee them a say in decisions about their future.

Mediation process considerations

Even when acting on CYP views may not be in their best interest, underlying concerns and wishes could potentially be incorporated into outcomes. Mediation may be particularly conducive to this process, which, as one mediator put it, may empower CYP to ‘become part of the solution’. The peer-reviewed article proposes that collaborative ‘plans for participation’ should be used in every mediation, to ensure that no CYP contribution is disregarded without reflection. Some key recommendations are that partial attendance should be considered, and all CYP should be entitled to a non-parental advocate who can assist them in putting their views forward, or convey the wishes of those who do not attend.

Despite widespread assumptions about capability and capacity, the nature of a person’s needs can be delimited by the extent to which they are supported to participate. Expecting anxious CYP to cope with such a formal process will sometimes be unrealistic, but professionals stressed the positive effects of clear explanations, meeting CYP in their own environment and using communication in ways they are most comfortable with. Participants saw flexibility and a range of methods, particularly technology, as powerful tools in eliciting views. Many of these recommendations emanate from encouraging examples of positive practice from several participants in this study. See also recent research by Orla Drummond, on why child attendance remains limited in SEN tribunals in Wales and Northern Ireland.[ii] Similar issues resonated here in the balance between participative principles, protectiveness and best interest.

The mediation research also posed questions about how some LAs may best be motivated to engage effectively with mediation at an early stage, as the majority of tribunal rulings are found in favour of parents. Other research has highlighted that the strain of tribunals has a considerable adverse impact upon families. LAs employ expensive legal defences; many parents also pay for costly case-support, and it has been proposed that the tribunal disadvantages certain groups (for these reasons, which might also deter parents from challenging their LA, it seems a positive step that all ‘Refusal to Assess’ for an EHCP appeals are now considered on the papers rather than requiring a hearing). So, the arguments for more early resolution are strong.

In other types of civil and commercial mediation, both parties attend voluntarily, risk substantial losses in court, and so have strong incentives for immediate settlement. In SEN disputes, different principles apply. This means that while some LAs engage in very positive communication with parents, others take a ‘battleground’ approach. Many parents and advocates hold that LAs can benefit financially from exploiting the delays inherent in the appeal process; while most appeals are settled before reaching tribunal, LAs often concede very close to the tribunal date. In other cases, LAs are prepared to risk tribunals because they potentially have a lot to gain if they win and little to lose if they don’t; if an LA team loses and is ordered to pay for a provision, they would later be able to defend this expenditure with impunity, as it is enforced.

This suggests a need for greater accountability, and penalties for those LAs who frequently concede close to hearings and unsuccessfully fight high numbers of appeals. Making statistics of tribunal outcomes transparent and clearly accessible for public scrutiny might also provide a disincentive for some LAs to continue to fight multiple tribunals, and an impetus to settle at outlets such as mediation.

At the same time, careful thought needs to be given to how families can be supported, and checks implemented, to ensure that mediation settlements present the level of provision that individuals are legally entitled to, and not less. But SEND cases can be complex and nuanced and the answers are not always straightforward. An upcoming second paper will discuss these aspects of the study. A forthcoming CEDAR (University of Warwick) review of arrangements for disagreement resolution, commissioned by the Department for Education, should also provide interesting insight and clarity into how the SEND reforms are impacting this area.[iii]

Accessing participants in research

One of the difficulties in conducting the mediation research was accessing a wide and representative sample of parental perspectives. Parents with negative experiences of disputes tend to be more active within online support groups and therefore more accessible for research than satisfied families who have moved on with their lives, and this can skew the sample of participants.

Given its central aim, a shortcoming of this study is the non-inclusion of the views of CYP. Every effort was made to explore this possibility, although access to CYP proved impracticable and beyond the scope of the limited research resources. Involving CYP in research requires frameworks to facilitate individual-oriented approaches to data collection and a focus on ethical areas such as gaining informed consent. Adults cannot reveal a complete picture of CYP participation, and the literature shows that CYP with SEN can make crucial contributions to research on participation in educational decisions. There is an essential need for more research in this area to include CYP.

In the meantime, it is hoped that these findings might benefit LAs, mediation providers and policy-makers as they continue to evolve and consider new approaches to the Code.

About the author:

Ben Walsh has a BA in Education from the University of Cambridge. He is currently working in a specialist school for pupils with autism spectrum condition.

[i] B Walsh, ‘ ”A powerful thing”: Exploring the participation of children and young people in special educational needs mediation’ in Education Law Journal 18 (1), 2017, https://www.repository.cam.ac.uk/handle/1810/263636

[ii] https://ukaji.org/2016/11/30/child-participation-at-special-educational-needs-tribunals/

[iii] https://administrativejusticeblog.files.wordpress.com/2016/04/current-research-profile-ma-cullen.pdf