What do we know about the role of young people in SEND dispute resolution? A research overview: Part 2

By Margaret Doyle

This post is in two parts: Part 1 set out what we know from research about young people’s involvement in special educational needs and disabilities (SEND) dispute resolution; Part 2, published here, explores what we know about involving young people with SEN in research, what guidance would look like for mediators, and what research gaps exist. The two-part post forms part of a larger 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 2 – Young people’s involvement in research, research gaps and what guidance is needed for mediators

Including young people in research on SEN dispute resolution

Relevant to this project are lessons learned on the challenges of including children and young people (C/YP) in research focusing on their views and their participation. Shaw et al (2011) have produced guidance on involving C/YP (not necessarily with SEND) in research, ‘based on the premise that CYP are social actors who have a right to be involved in research about issues of concern to them. It is important to note that we not only seek to involve CYP in research because they have a right to be involved but also to improve the quality of the research itself’ (p4). They also note, however, that additional time is needed in order to deal with ethical issues on access, consents and gatekeepers (eg parents and others), and specific methodological challenges arise in relation to making research involvement meaningful and accessible to C/YP.

Existing research on C/YP participation in SEND dispute resolution (both tribunals and mediation) has had limited success at engaging C/YP in the research. Walsh (2017), for example, noted difficulties in accessing C/YP for the purposes of his study on SEN mediation participation and the resulting shortcomings in the findings. The need for individual-oriented approaches to data collection, ethical concerns about researcher access to individuals who may be considered vulnerable, and use of communication aids and advocates often cannot be sufficiently addressed in research carried out with limited resources.

In the Pathfinder report (DfE 2015), few C/YP of any age were present in interviews with families: 4 out of 46 in the first cohort, and 5 out of 31 in the second cohort. Where they participated it was to varying degrees (eg being unable to give detailed verbal answers but able to indicate yes or no), depending on communication skills and ability to focus on topics. The researchers noted that most of the C/YP involved in the study had complex needs.

Skipp and Hopwood (2016) interviewed 15 young people as part of a small-scale, DfE-commissioned qualitative study of experiences of the EHCP process during the first year of implementation of the Children and Families Act and the new SEND framework. The study covered four local authorities in England. The researchers held three focus groups, in educational settings, involving 15 young people who had EHCPs and were aged 15-25. The focus groups gave an opportunity for the young people to comment on the EHCP process and say what they liked and did not like about it.

Challenges in involving C?YP in research

It is useful to highlight the challenges that Skipp and Hopwood identify when researching views of C/YP with SEND. These include practical considerations such as communication needs requiring several strategies for conveying information and questions and eliciting responses. In addition, parents have reservations about facilitating direct access to a young person; this role of gatekeeper, while understandable, poses difficulties. The researchers also recognised the ethical concerns that unless input from C/YP is elicited and captured in a meaningful way, it runs the risk of being tokenistic.

The same is true of this knowledge exchange project, which has identified that the lack of accessible, C/YP-friendly information (printed and online literature and leaflets, videos) on complaints and disputes in SEND hampers the researchers’ ability to engage with C/YP, and the resources for the project do not allow for creation of, and consultation on, such information. The SEND Tribunal does not produce information targeted specifically at C/YP appellants. In comparison, a ‘Guide to Mental Health Tribunals for Young People‘ is has been produced by the First-Tier Tribunal-Mental Health with the Royal College of Psychiatry, and a YouTube video showing a young person’s experience with the SEND Tribunal in Wales Is available. In relation to mediation, some providers have produced C/YP-friendly literature; the Together Trust, for example, has an Easy Read version of its mediation information leaflet and an accessible for young people aged 16+ to authorise a representative (eg a parent) to attend mediation and speak on their behalf.

This knowledge-exchange project has also identified challenges in accessing existing C/YP participation groups. A number of such groups exist (eg FLARE, a group of young people with SEND, run with Council for Disabled Children and KIDS and funded by the Department for Education), but SEND dispute resolution is not necessarily one of the areas on which they focus; getting time to discuss this means offsetting other issues they are working on. FLARE is part of a participation project, Making Participation Work, which has produced an audit tool for local authorities and other resources.

Further, most C/YP, even those actively engaged in participation, will not have had experience of dispute resolution such as mediation, the tribunal, or an ombud complaint and so may not be familiar with the process in order to contribute to ideas about how they can be made more accessible to C/YP, beyond the useful but mostly generic ideas about participation in meetings and decision-making generally. As this current project has highlighted, there exists little accessible information specifically for C/YP on resolving complaints and disputes over SEND issues (although note the guides, including EasyRead guides for young people, produced by Mencap as an example of what is available). Furthermore, without available accessible information to share when discussing participation with these groups, such engagement risks being tokenistic and superficial.

Ultimately, it is important to remember that participation groups are not intended to be representative of young people generally, and there will be a range of views and preferences as well as a range of needs to take into account. We therefore echo Walsh’s point about the need for more research in this area to include C/YP. Getting C/YP engaged in designing and conducting research will help avoid that risk. The Children’s Research Centre, established by Professor Mary Kellett, is one organisation that aims to train up C/YP to engage in research as researchers rather than subjects. They have published their Teaching Sessions for C/YP, a valuable resource.

Developing guidance on C/YP involvement in dispute resolution

Whether participation means active involvement as a decision-maker or some other form of young person’s engagement with dispute resolution, it is important to consider the ways in which that participation can best be facilitated. One question this project aims to explore is whether we need to develop guidance (and possibly training) for tribunal members and mediators that equip them to engage with C/YP in the appeals and disputes they deal with. This is particularly important in relation to 16-25-year-olds, who are the legal rights holders.

What might guidance look like?

Walsh (2017) explores mediation process considerations, including the use of collaborative ‘plans for participation’ and non-parental advocates. Adams et al (2017) looked at the provision of three types of support for attending meetings as part of the EHC needs assessment and planning process: communication aids, visual aids and advocacy/support and found that between one-quarter and one-third of cases where there was a need for these types of support, it was not offered. The most commonly provided form of support among the three types was advocacy/support for the young person.

Drummond (2016) too highlights the potential for incorporating flexibility into procedures to enable participation by C/YP, which might involve, among other changes, developing communication capabilities of tribunal members (which would apply also to mediators), expanding time limits, using appropriate settings for hearings, developing child-friendly literature – all changes that require a more creative approach than currently allowed.

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), 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)?

In the context of family justice, the Voice of the Child Dispute Resolution Advisory Group has recommended increasing opportunities for the voice of the child or young person in out-of-court dispute resolution and for developing child-inclusive mediation practices. The Advisory Group found that ‘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 Advisory Group focused on mediation of family separation and divorce but many of its recommendations are relevant for more child-inclusive practices in SEN mediation.

Conclusion

The primary gap in knowledge identified by the existing research relates to C/YP views about their participation – for example, what type and level of participation is desired by individual C/YPs, and what procedural adaptations would enable participation? A number of questions need to be explored through empirical research: To what extent is the emphasis on participation a potential source of anxiety for young people, and to what extent is it a welcome means to enable young people enforcing their legal right? If it is the latter, how can it be more than tokenistic? What changes in the information and advice infrastructure (rights awareness, legal aid, SEND expertise, advocacy) are needed to make exercising this right a meaningful and realistic option for those C/YP who choose to do so?

On the basis of Shaw’s (2011) assertion that it is important to involve C/YP in this research ‘because they have a right to be involved but also to improve the quality of the research itself’, we need to find ways to address the challenges such research presents. This will require not just the resources (time and funding) to meet the challenges but also support for researchers in overcoming assumptions that we might hold in relation to the contribution that C/YP can make as co-producers of research.

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.

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.