This blog post summarises a recent roundtable discussion that sheds light on an aspect of administrative justice in action in everyday life: the participation of young people in resolving disputes with local authorities about their special educational needs and disabilities (SEND) support needs. The full report of the roundtable discussion is available to download here and for viewing below.
By Margaret Doyle
Imagine you were invited to drive a car, almost pressured into it, yet you’d never had a driving lesson, much less any chance to practise. Unless you have daredevil tendencies, you’d probably decline the invitation – thanks, but no thanks.
This analogy was used at a recent roundtable discussion to describe how a young person might feel being invited to a mediation meeting to make decisions on the support for their special educational needs and disabilities (SEND), with no experience of mediation and without ever having had the chance to be involved in decision-making to plan their support. It may be a rough-and-ready analogy, but it’s apt in that young people are being given driver’s licences (a right to appeal a local authority decision) with little, or no, guidance, practice or support as to how to drive (information, advocacy, legal advice).
Under the Children and Families Act 2014 in England, from age 16 the right to make requests and decisions on SEND applies to the young person directly, rather than her/his parents. Few would argue against young people who want to drive being allowed to do so, just as few would disagree with young people having rights, and international conventions back this up: the UN Convention on the Rights of the Child (CRC) 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; and the UN Convention of the Rights of Persons with Disabilities (CRPD) sets out rights in relation to support for accessing justice and exercising legal rights.
A Place at the Table focuses specifically on individual participation of young people in England 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. It is being carried out as part of the UK Administrative Justice Institute (UKAJI), a national network of researchers and research users based at the University of Essex, with support from the ESRC’s Impact Acceleration Account funding, from Garden Court Chambers’ Special Fund, and from KIDS, a national charity working with disabled children and their families. Participants in the project include mediators, mediation services and tribunal members; local authority representatives; parent/carer groups; the Department for Education; the Local Government and Social Care Ombudsman; the Children’s Commissioner; specialist lawyers and advisers; and academic researchers.
Decisions made by local authorities on SEND provision 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 and concerns about efficiency. The expectation is that the project will contribute to our understanding of the way these aspects of administrative justice are experienced through the lenses of children’s rights and participation in access to justice and to our knowledge of best practice for including children’s and young people’s voices in the process.
The reasons for focusing primarily on mediation include that 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; compared with 1,599 tribunal appeals decided in 2016-17). This increase has occurred without any parallel increase in scrutiny of the mediation process, aside from very 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 as decision-makers, which goes beyond participation in the form of presenting evidence or giving views.
‘It is unrealistic to expect the young person to pull up a chair if they have not been involved throughout their SEN journey.’
Much of the work on the voice of children and young people with SEND highlights the greater risk to them 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. This is particularly important in the context of mediation, which is a problem-solving process whose emphasis on collaborative decision-making prioritises self-expression and self-determination by the parties.
The aims of the roundtable discussion, held on 25 June 2018 at Garden Court Chambers in central London as part of A Place at the Table project, were to provide a space to share knowledge and experiences from different perspectives and to explore feasible next steps together. It was attended by 30 individuals from organisations contributing to the project, representing a broad range of perspectives on SEND complaints and disputes, including young people’s rights, autonomy, parents’ roles, and administrative justice. The roundtable discussion will feed into the project’s Final Report. A full report on the roundtable discussion is available here.
The discussions focused on three themes: participation in individual dispute resolution, and what this looks like; capacity, and confusion about the terms ‘mental capacity’ and ‘best interests’; and access to information and advice, including legal advice. Participants discussed the need for early involvement of children and young people in planning their SEND support; help for parents/carers to navigate the shift from advocate to supporter, from speaking for to speaking with; accessible information and legal advice; a central role for schools and colleges; and guidance for those involved in redress and resolution, including mediators and tribunal members.
‘To what extent is the emphasis on participation a potential source of anxiety for young people, and to what extent is it empowering? Or both?’
Anxiety-inducing is not necessarily the antithesis of empowering, and anxiety may be addressed through appropriate information, advice and support. The spirit of the law, being person-centred, is seen by parents as a great approach, but they also are sceptical about how the child’s or young person’s views and wishes can be meaningfully incorporated. Other actors in SEND also feel anxiety – parents, who are concerned about their child’s future, and professionals, who may feel ill-equipped to work with young people with SEND. Concerns were raised among participants about the use of the term ‘vulnerable’, which is commonly used but reflects the ‘welfare’ approach that is at odds with children’s rights and a focus on ‘citizenship’.
Early access to legal advice, for example, can be critical for young people, but many young people consider the law as primarily about punishment and not about enforcing rights. Participants heard of research carried out by IPSEA that found that nearly three-quarters of young people said they would look to their parents or carers for information on education and training, highlighting the importance for many young people of supporting their relationship with their parents. Although legislation is clear that responsibility lies with local authorities, is this realistic, given the reality of where young people seek help?
Participants at the roundtable discussed the ‘slippery concept’ of co-production with young people and the need for resources to facilitate such co-production. What is needed is involvement by young people, to design how they want to be involved, both in dispute resolution and in research and production of guidance. It’s important to consider who is not involved as well as who is, and to assess whether young people are being asked to represent themselves (and their interests, which are variable) or to represent the interests of a group.
‘Mental capacity is decision specific; it is not a status.’
The issue of mental capacity prompted a lively debate about how it is applied in the SEND context. The way ‘mental capacity’ and ‘best interests’ are used suggests some confusion in the SEND field among parents and lawyers. Under the Mental Capacity Act (MCA), there should be a presumption of capacity, and decisions to be made are issue-specific; it is not about global decision-making capacity, and best interests only kick in once capacity has been assessed lack of capacity identified. When is an assessment (under the MCA) necessary in the SEND context, who should do it, and how does carrying out an assessment affect the strict timeframe for mediation to take place?
Would a capability approach provide a more useful framework for understanding how young people with SEND can be supported in decision-making? Capability is knowing where to go for help, and it includes supported decision-making – young people being supported to make the decisions they can make. Would a capability approach help us move away from the limitations and tensions of the capacity approach?
It’s possible that the emphasis on participation and decision-making is welcomed by some but not all young people, and preferences must be taken into account. Some young people just don’t want to learn to drive, and that’s fine. Despite the participation mantra that prevails in public policy, we do need to ask whether an emphasis on autonomy is at odds with the need to ensure support is provided, particularly in an environment in which local authority resources are stretched to unprecedented levels. What do we need to do to get the balance right? In any further work, it is crucial to understand that relationships and trust are the ‘vital elements’ to supporting young people in having a meaningful place at the table where decisions are made and disputes are resolved.
Like driving, decision-making is not something we’re all born knowing. We need to learn, and we need help in that learning. Mostly we need practice. It isn’t just the learner driver who needs practice and support, however. It’s also the parents, the driving instructors, and other professionals involved – supporting someone else in their decision-making is a skill that also needs to be learned. But as participants at this roundtable concluded, the SEND system talks the talk of participation and young people’s voices being heard, but it doesn’t walk the walk – a culture change is needed, as are more resources to help local authorities, parents, and professionals involved in planning and providing SEND support.
About the author:
Margaret Doyle works with the UK Administrative Justice Institute (UKAJI) at the University of Essex and is carrying out the A Place at the Table project. She is also a mediator in SEND disputes.
The full report is available for download here and for viewing below.