What do we know about the role of young people in SEND dispute resolution? A research overview: Part 1

By Margaret Doyle

This post is in two parts: Part 1, published here, sets out what we know from research about young people’s involvement in special educational needs and disabilities (SEND) dispute resolution; Part 2 explores what we know about involving young people with SEN in research. The two-part post forms part of a knowledge-exchange project, A Place at the Table,[1] which focuses on knowledge exchange and engagement between researchers, practitioners and users in SEND disputes in England.[2] The aim is to gather information and views, share best practice and contribute to policy and practice debates on children’s rights, access to justice, dispute resolution and alternatives to tribunal adjudication.

PART 1 – Young people’s involvement in SEND dispute resolution

Little research has been done specifically on the extent to which children and young people participate meaningfully in resolving disputes about their special educational needs and disabilities (SEND), although substantially more research has been conducted on the experiences of parents acting on behalf of their children. Relevant research exists on children and young people’s participation in decision-making at a strategic level (ie not in individual disputes) and more broadly on the value and practicalities of different levels of participation. As Harris (2018) notes, it is in this area of resolution of individual disputes that ‘the principal barrier to children’s participation – arising from a general paternalistic perception that parents are best placed to represent their children’s interests and advance their cause – has been most at the fore‘. This project focuses specifically on individual participation of children and young people (aged 16-25) in SEND dispute resolution, and primarily on mediation, with lessons to be learned across the mechanisms that exist for complaint handling and accountability in local authority decision-making.

Here, ‘dispute resolution’ refers to the mechanisms for addressing complaints about, and challenges to, local authorities, including the First-Tier Tribunal (SEND tribunal), mediation, the Children’s Commissioner and the Local Government and Social Care Ombudsman (other related mechanisms which are not the focus of this project include school complaints procedures, school admission and exclusion appeals, the Secretary of State for Education and judicial review). 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 under the Children and Families Act 2014 (CAF) and the 2015 SEND Code of Practice. (For a comprehensive overview of legislative and policy developments, see Harris 2018).

Decisions made by local authorities on SEND provision for children and young people reflect many aspects of concern in administrative justice. These include the quality of initial decision-making, 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 budget pressures on schools and local government.

Background

SEND disputes relate to decisions made by local authorities (and to some extent Clinical Commissioning Groups where health provision is involved) regarding identification of needs (involving education, health and social care) and provision of support to meet those needs. There is generally widespread recognition that young people, as rights holders, should have their voices heard in the determination of such disputes. In practice, young people do not always attend mediation or tribunal hearings, and the mechanisms by which they can be involved as part of the decision-making process are limited.[3] There is a clear need, recognised by practitioners and researchers (eg Skipp and Hopwood, 2016), to consider if guidance is required on facilitating young people’s meaningful participation.

The CAF aims, among other things, to increase the voice of the child or young person with SEN and makes explicit that a young person (with mental capacity) has the right to take their own claim to mediation or to the tribunal; after compulsory school age (the end of the academic year in which they turn 16), the right to make requests and decisions on SEND applies to the young person directly, rather than her/his parents (Code of Practice para 8.15). In addition, 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 taken seriously and to participate in proceedings.

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. Under the CAF 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); 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 attempt mediation is voluntary; those parents and young people who decide not to will be issued with a certificate, which will allow them to lodge an appeal (within the deadline, which is two months from the date of the local authority decision). Those who agree to attempt mediation will be given a certificate following the mediation, which allows then to lodge an appeal (should one be considered necessary) within one month of the date of the mediation.

The Centre for Educational Development, Appraisal and Research (CEDAR) carried out a DfE- commissioned review of these new arrangements; their report, Cullen et al 2017, discusses the effectiveness of procedures for resolving disagreements with local authorities and education, health and care agencies including information, advice and support services; mediation; complaints; and the First-tier Tribunal SEND. The review found that, of just over 3,000 parents/young people from 109 LAs, the majority (58%) chose not to go to mediation. A substantial minority (42%) decided to go to mediation. This minority represented a marked increase in demand for SEN mediation since before the new legislation. The review found that use of mediation reduced the likelihood of an appeal to the tribunal; of the group who chose not to use mediation, 36% went on to appeal, compared to 22% of those who had been to mediation, a 14%-point reduction in the likelihood of registering an appeal. The researchers noted a marked increase in impact from Year 1 to Year 2 of the new system, suggesting the impact on appeal numbers would be likely to increase.

Mechanisms for resolving disputes in SEND

What do we know from research?

A current ESRC-funded project by Riddell and Harris (Autonomy, Rights and Children with Special Needs: A New Paradigm?, https://www.ed.ac.uk/education/rke/centres-groups/creid/projects/autonomy-rights-sen-asn-children/working-papers is investigating the implementation of children’s rights in in SEN/ASN in England and Scotland. The project’s Working Paper 2 (Harris 2018) gives a comprehensive overview of the legislative and policy developments in relation to C/YP ‘autonomous voice’ and participation in the SEN/ASN context.

Soar et al (2005) explored the extent to which C/YP participated in SEND mediation and found limited direct participation but more evidence of indirect involvement (eg questionnaires eliciting the C/YP’s views or including C/YP’s views within professionals’ reports). Consulting C/YP in advance of mediation appeared to be the norm, with the aim of informing the adults attending (Soar 2005). In their evaluation of two pilots of young people’s rights to appeal to the SEN Tribunal in Wales carried out in 2009 following the Education (Wales) Measure 2009, Holtom et al (2014) indicated strong support for the principle of extending the rights of children and young people to participate in decision-making, but limited evidence of C/YP exercising this right in 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. Drummond (2016) refers to the ‘tentative approach’ of enforcing participation rights in SEND Tribunals, due largely to conceptualisations of childhood – she documents the concerns expressed, primarily by parents but also other stakeholders, including the judiciary, about age of the C/YP and their capacity to participate.[4] Her findings suggest that the judiciary had concerns about their ability to engage with C/YP in the tribunal setting.

Walsh (2017) explored how mediators and local authorities are addressing pupils’ views and/or enabling their participation in SEN mediation.[5]  He found a higher level of commitment among professionals to C/YP participation than evidenced in research before the SEND reforms, as well as examples of good practice in both direct and indirect participation. He also identified evidence of superficial compliance and parental resistance to participation by C/YP; parental advocacy, however well-intentioned, may enable but also inhibit C/YP’s meaningful participation in decision-making.

Other relevant research includes a review of current SEN disagreement resolution arrangements in England (Cullen et al 2017)[6] and reports on complaints to the Local Government and Social Care Ombudsman (LGSCO). In 2015, for example, the LGSCO published a Focus Report (LGSCO 2015) on complaints about local authority children’s services, which highlighted that the voices of children and young people are often not heard in complaints about their own social care needs: ‘This means that children’s interests are sometimes not central to the complaint – they can be unaware of one being made …‘. The Ombudsman has also published a report on its first 100 investigations of complaints involving EHC Plans under the new SEND framework (LGSCO 2017). The Children’s Commissioner, who has a specific duty to investigate the availability and effectiveness of complaints procedures from the point of view of children and young people, has published a number of relevant reports on C/YP complaints procedures (eg 2014, 2015).

Participation and capacity

‘Participation’ can range across a spectrum from submitting one’s views for consideration by others to actively taking part in decision-making. Concerns expressed by parents include questions about capacity and the emotional impact on a young person of a discussion focused on their child’s limitations and need for support. ‘Best interests’ arises as a primary concern: are young persons, with or without SEND, able to identify what is in their best interests? Yet the CAF is clear about young people having the legal right as long as they are deemed to have capacity.

‘Capacity’ is a complex and potentially emotionally fraught 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. The Act 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. However, an underlying principle in the Act is the presumption of capacity. 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 2015 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. Local authorities should not use parents’ views as a proxy for the views of a young person (see SEN4You factsheet). Presumptions about capacity can be misleading and disempowering; Sinson (2016) points out, for example, that a YP deciding they wish to do something different from any post-16 provision their parents or teachers prefer is not an indicator of lack of capacity. In some cases, a mental capacity assessment is necessary (carried out by a member of school or college staff or by the local authority), particularly if there is disagreement about a young person’s capacity (Sinson 2016).

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 – whether someone is too young to be involved will depend on the individual and the issues in dispute. The nature of an individual’s needs or extent of their disability is a factor, but also relevant is how their participation is enabled – eg putting in place the structures and support that allows a young person to participate meaningfully.

As Walsh (2017) reminds us, rights under the United Nations Convention on the Rights of the Child have been denied consistently or treated with tokenism, for a number of reasons, including ‘entrenched and disempowering presumptions about capability and whose voices hold authority and legitimacy’. He cites Lundy’s helpful model conceptualising elements of Article 12 of the UN Convention of the Rights of the Child (UNCRC), which includes a duty to provide the C/YP with ‘the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’. Lundy’s model identifies four elements of this: space (including asking C/YP how they want to participate in decision-making); voice (facilitating C/YP to express their views); audience (listening to those views); and influence (acting up on those views and giving feedback). Much of the work on the voice of C/YP with SEND highlights the greater risk to these C/YP of not being heard and having rights denied, and the importance of doing ‘with’ rather than doing ‘for’ or ‘to’, a key principle of the disability rights movement.

The emphasis on participation is not without critics. Walsh (2017) notes concerns cited in Lewis (2010) about what is termed a ‘moral crusade’ using crude tools such as basic questionnaires; concerns by others that the vague language of participation (eg ‘have regard to’) is not clarified in the Code of Practice; and concerns that an element of manipulation and coercion of C/YP is introduced by formal policy initiatives on participation. Indeed, the C/YP not being present in proceedings might advance her or his preferred outcome, ‘since the child who does appear risks being perceived as having all the connotations of an exhibit in the advancement of the parental cause’ (Vollans 2003), a point also raised as a concern of mediators in relation to parents putting their child’s needs ‘on display’ (Soar et al 2005). Harris (2018) notes the temptation to see the emphasis on C/YP rights in SEND ‘as an extension of the choice/consumerism paradigm (and the provider accountability linked to it) that has had such an influence on the extension of parental rights in this field over the past three or so decades’. Drummond (2016) identified a worry that C/YP’s participative rights could threaten parental authority in decision-making. Parents appear to worry that a young person’s view might be prioritised by professionals despite it not supporting an outcome that, in the parents’ view, is in their best interests. This is a view echoed by some stakeholders in the current project, suggesting that a degree of cynicism about local authority motives surrounds the emphasis on young people participating in dispute resolution as decision-makers.

That said, Walsh (2017) provides a useful overview of the literature on the benefits of participation, in particular the benefits to the young people themselves. He notes that more research is needed on whether and how C/YP themselves consider that participation in decision-making has impacted on them.

Involvement in EHC planning

Considering the involvement of young people in the development of their EHC Plan and in Annual Reviews is a useful starting point for two reasons. First, the majority of young people with SEND do not experience disagreements or disputes about having their needs identified and met (Adams, L. and others, 2017 for figures from 2015). Second, involvement in planning and preparation may be a pre-condition for involvement in dispute resolution, should disputes or disagreements arise.

In an evaluation of the Pathfinder programme (DfE 2015), commissioned by the Department for Education and carried out in 2011-2014 to assess the impact of the SEND reforms, families involved in the new process (‘Pathfinder families’) were found to be more likely to agree that their child had had a say in the EHC support planning process than those in the comparison groups (with Statements but no EHCP). Yet the figure who agreed was only 37% (compared with 29% in the comparison group), with particular concerns expressed by parents of age 17+ young people in relation to arrangements for transition, indicating there is room for improvement in the level of C/YP involvement.

Adams et al (2017) looked at several measures of involvement: making an effort to listen to the C/YP and to understand their opinions; including the C/YP in meetings; asking the C/YP if they want to take part in meetings; giving choices to the C/YP as to how to take part in meetings; and providing aids to help the C/YP to take part. (Aids included communication aids, visual aids, or the help of an advocate/supporter). Most young people and their parents agreed that young people are included in the EHC needs assessment and planning process; in around three-quarters of cases relating to plans for 16-25 year olds, parents and young people felt that efforts were made to listen to the young person, and a slightly higher proportion reported that the young person was included in meetings. Only one-quarter, however, felt that the young person had been given choices as to how to take part.

Harris (2018) notes that more evidence is needed on the extent of progress in implementing the C/YP rights provisions in the CAF and Code, which a current ESRC-funded project sets out to do. We also need to know more about the role of local authorities and schools in facilitating C/YP engagement in EHCP planning, and the support for parents who face a significant shift in role, from being advocates for their children to potentially taking a back seat in supporting decision-making by young people.

Barriers to participation

Many barriers to children’s and young people’s participation in SEN dispute resolution have been identified in research (Harris et al 2008; Drummond 2016), including psychological damage to the child, the risk that the child may come across as more capable than parents had presented, and the length and formality of hearings. Attitudinal barriers about ability to participate reflect often misguided assumptions about capacity, as noted above. Walsh (2017) notes that parents had mixed views about their young person attending mediation, mostly linked to concern about the impact on them of being exposed to a daunting, formal setting and a sense of limited understanding or capacity on the part of the young person. Drummond (2016) highlights that parents often experience tribunals as legalistic environments with an inherent imbalance of power; the fear of their child being cross-examined feeds into parental protective instincts. Potential conflicts between the views of the young person and their parents can be difficult to reconcile – but not impossible. Concerns about anxiety of the C/YP, and the need to shield them from negative or sensitive information about their needs, often see parents and others prioritise safety over participation.

Other barriers are practical rather than attitudinal. The first hurdle is often awareness of one’s rights and of the mechanisms for resolving disputes. The research has identified that information and support for C/YP is vital (eg Holtom et al 2014; Drummond 2016). Local authorities have a duty to consider whether a young person requires any information, advice and support in order to enable them to take part effectively in an EHC needs assessment and, if so, to provide it (SEND Regulations 2014, Part 2, clause 10). Adams et al (2017) report that just over half of parents and YP in the study had been given information by the local authority about complaints, mediation and appeals procedures. However, a smaller proportion had used that advice, and only a very small proportion (5%) actually used the complaints, mediation, or SEND Tribunal appeal procedures. Where the EHCP was for a YP aged 16-25 the researchers found lower awareness of processes for reviewing the EHC plan content, and complaints and appeal procedures, than in cases where the EHCP was for an under 16.

A study of young people’s legal capability (Parle 2009) found that ‘young people’s lack of knowledge of their rights/entitlements, legal processes or where to go for help impeded their ability to recognise that they were dealing with an issue with legal elements’, which in turn affected their ability to resolve, or even to plan how to resolve, the issue. Drummond (2016) identifies pre-hearing advice and support and access to legal representation as essentials to address inequality of legal arms and also to counter the concerns about C/YP capacity and capability as outlined above.

A study of legal aid and access to justice for children noted that the Justice Select Committee, the Joint Committee on Human Rights and the Office of the Children’s Commissioner have all criticised the removal of legal aid from children’s cases (Coram Children’s Legal Centre 2018). Although SEN remains in scope for legal aid, access to it is restricted to a mandatory telephone gateway. An exemption was made for children, so that they are not required to use the mandatory gateway. However, Coram Children’s Legal Centre (2018) notes that in reality this exemption is operationally difficult to achieve for a number of reasons, including that there are very few specialist education law providers and only two legal aid contracts for education law. An independent review of the mandatory telephone gateway for civil legal aid (Hickman and Oldfield 2015) found that SEN matters (one of three areas covered by the gateway alongside debt and discrimination, and identified as a priority area) started via the gateway were 45% lower than had been anticipated. Problems included lack of awareness of the gateway and difficulties navigating the service. Telephone advice is in any case not always suitable for young people with SEN; the Coram report (2018) emphasises the value of face-to-face advice in two case studies, one involving a tribunal appeal and the other to secure EHC needs assessment.

Looked-after C/YP, especially those in institutional settings, have been identified as a particular group most in need of both the legal right to challenge and the support to do so. Holtom et al (2014) noted that one of the objectives of the Education (Wales) Measure 2009, extending the right to appeal to C/YP, was to ensure looked-after children have an independent right to appeal; although in the pilots they studied, no looked-after children exercised that right.

In its submission to the Bach Commission’s review of legal aid, the Coram Centre noted that young people often face more hurdles than adults in funding legal advice (eg not being eligible for the national living wage) and noted that it is vital ‘that young people are given an opportunity to meaningfully engage in judicial processes that relate directly to their lives’.

Ultimately, addressing both attitudinal and practical barriers may rely on a significant shift in culture (Drummond 2016; Soar 2005) – in particular on recognition of C/YP as rights holders – and in political will to provide the information and advice infrastructure necessary for the exercise of those rights to become a reality.

Part 2 of this post to follow.

Notes (and see References)

[1] A Place at the Table is undertaken by the UK Administrative Justice Institute (www.ukaji.org), a research network based at the University of Essex School of Law. The project is funded jointly by the ESRC IAA Impact Fund and Garden Court Chambers Special Fund, with in-kind support from KIDS SEN Mediation Service.

[2] The project focuses on England only. As SEN policy is devolved, separate frameworks apply in Northern Ireland, Scotland (where the term Additional Support Needs is used) and Wales (Additional Learning Needs). The issue of children and young people’s participation in SEND dispute resolution, however, is relevant UK-wide. Harris (2018) has produced a review that includes a valuable comparison of SEND developments in England and Scotland, with references to recent developments in Wales and to international frameworks.

[3] This project will aim to identify the extent to which young people do attend hearings and mediations, although this may provide only a limited snapshot as this data is not published by the tribunal or mediation providers.

[4] See blog post by Drummond, O, ‘Child Participation at Special Educational Needs Tribunals’, UKAJI blog, Nov 2016, https://ukaji.org/2016/11/30/child-participation-at-special-educational-needs-tribunals/

[5] See blog post by Walsh, B (2016), ‘The participation of children and young people in special educational needs mediation’, UKAJI blog, Feb 2017, https://ukaji.org/2017/02/22/the-participation-of-children-and-young-people-in-special-educational-needs-mediation/

[6] See blog post by Cullen, MA et al (2017), ‘ Review of arrangements for disagreement resolution (SEND) – Part 2: Impact of compulsory mediation information on appeals to the First-tier Tribunal SEND’, UKAJI blog, May 2017, https://ukaji.org/2017/05/23/review-of-arrangements-for-disagreement-resolution-send-part-2-impact-of-compulsory-mediation-information-on-appeals-to-the-first-tier-tribunal-send/

About the author:

Margaret Doyle is Senior Research Fellow with the UK Administrative Justice Institute, University of Essex School of Law, and an independent mediator in special educational needs and disabilities.