Young people’s voice and the ‘chicken soup’ effect
A new report explores the issue of young people’s participation in resolving disputes and complaints about their special educational needs and disabilities (SEND). The report is the result of A Place at the Table, a knowledge exchange project carried out between November 2017 and March 2019 exploring the way aspects of administrative justice are experienced through the lenses of children’s rights and the policy imperatives of participation and access to justice.
By Margaret Doyle
Young people in England obtained new rights under the Children and Families Act 2014 to challenge decisions made by local authorities about support for their special educational needs and disabilities (SEND). The Act extends the right to appeal to the First-Tier Tribunal (SEND) to young people aged 16-25, in effect transferring that right from the parent to the young person. It also requires a parent or young person to consider mediation before lodging an appeal with the tribunal. The project A Place at the Table aimed to explore to what extent young people aged 16-25 are exercising those rights and participating in mediations and tribunal hearings.
It’s fair to say that the project did not succeed in doing that. It identified that currently it is impossible to determine the levels of young people’s participation in these processes because the data are not collected. Instead, the project highlighted a fundamental ambivalence about these new rights. One of the conclusions is that there is a disconnect between the policy ambitions of participation and decision-making by young people with SEND, on the one hand, and the support of and exercise of individual participation rights on the other. The project report, A Place at the Table: A report on young people’s participation in resolving disputes about special educational needs and disabilities, suggests a number of factors contribute to this disconnect: anxieties about protecting the interests of young people, and the interests also of parents and carers; misconceptions of the meaning of ‘capacity’; and the lack of information and advice for young people.
‘Chicken soup’ effect
Individual rights are generally welcomed and seen as an ‘unquestionable good’. But there are challenges in attempting to reconcile a rights-based approach to participation with concerns about the well-being of children and young people and the role of adults in securing good outcomes for them. The ‘chicken soup’ effect is a reference to work by Laura Lundy, professor of international children’s rights at Queen’s University Belfast, who developed a way of conceptualising a child’s right to participation as set out in Article 12 of the UN Convention on the Rights of the Child (UNCRPD). In her influential 2007 article ‘”Voice” is not enough’, Lundy refers to the ‘cosiness’ of rhetoric about ‘pupil voice’ and suggests that the widespread use of such terms can create a ‘chicken soup’ effect, ‘where children’s voice is held out as an unquestionable good to be endorsed by all, a common, if somewhat dangerous side effect of children’s rights discourse’.
Lundy argues that the goodwill to facilitate such voice, especially in the context of SEND, can evaporate in the face of resource constraints. It can also evaporate, I would argue, in the face of fear and discomfort of adults and our conceptualisations of ‘vulnerability’ and mental capacity. A question the project has grappled with is one that challenges the predominant participation ‘policy regime’ – do we need to ask whether young people’s participation in SEND dispute resolution is beneficial, and if so to whom? That’s an uncomfortable question, one challenging current orthodoxies – akin to doubting the efficacy of chicken soup. [Note: Lundy (2007) and other sources mentioned in this post are referenced in full in the bibliography in the report.]
Focusing on young people, and on mediation
A Place at the Table was a knowledge exchange focusing primarily on young people aged 16-25 in England and their involvement in SEND mediation. The reasons for this focus are many. First, the SEND framework now covers children and young people from birth to age 25, and new rights were conferred on young people at age 16 by the Children and Families Act 2014, including rights to challenge local authority decisions by appeal to the SEND Tribunal. Also, there has been a steep increase in mediation numbers since the implementation of the Act, from 75 in 2014 to 2,497 in 2017, for the first time surpassing the number of SEND Tribunal appeal hearings. This increase has occurred without any parallel increase in scrutiny of the mediation process. These factors relate specifically to England, but developments are taking place also in relation to young people’s rights regarding SEND disputes in Wales and Scotland.
In addition, distinctive characteristics of mediation raise both challenges and opportunities in relation to participation. Although mediated outcomes in SEND are not confidential, mediation discussions are, and the confidentiality of the process can make it difficult to access information. Furthermore, because the process is one in which the parties are decision-makers, in a way they are not in a tribunal appeal or ombud complaint, it is important to consider that in this context, ‘participation’ means more than ‘expressing voice’.
Mediation has been used in the context of SEND tribunal appeals since 2001. Generally, SEND mediators have adopted a ‘welfare’ approach, one that considers pupil voice as providing information to the parents and local authority as decision-makers. A ‘citizenship’ approach, on the other hand, is one that assumes potential for a child or young person to be involved to some degree in the negotiating and decision-making process, with appropriate support. The welfare approach does not sit well with the rhetoric on children’s rights, which reflects the role of young people as citizens and rights holders, and with the rights conferred by the Children and Families Act. Nor does it sit well with the underlying premises of disability rights and the the importance of ‘doing with’ rather than ‘doing for’ or ‘to’, a key principle of the disability rights movement. ‘Doing with’ involves providing the necessary support to enable young people to speak for themselves.
Administrative justice concerns
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 severe budget pressures on schools and local government and concerns about efficiency. There is also a sense of urgency in SEND matters at the moment, capturing the attention of the media, Parliament and the public with recent reports and legal challenges on local authority funding and on unofficial exclusions and use of isolation units.
This project has sought to contribute to our understanding of the way these aspects of administrative justice are experienced through the lenses of children’s rights, participation and access to justice and to our knowledge of best practice for including children’s and young people’s voices in the process.
Reconciling rights and welfare
One original aim of this project was to work collaboratively with practitioners (including mediators, tribunal members, local government, and advice and advocacy organisations), young people and their representatives, and expert academics to develop a practitioners’ toolkit for facilitating participation and decision-making by children and young people in SEND disputes. However, during the course of the project it became apparent that young people’s awareness of and involvement in SEND dispute resolution is low, and therefore work on co-producing guidance is premature until it is possible to address other issues that present barriers to young people’s participation.
It also became apparent that there are challenges in attempting to reconcile a rights-based approach to participation with concerns about the well-being of children and young people and the role of adults in securing good outcomes for them. I identified three themes on which to focus: participation and what it means in the SEND context; how mental capacity is understood (or misunderstood) in SEND; and the information and advice infrastructure to support young people with SEND in exercising their new rights. The report explores how concepts of supported decision-making, legal capability, and a capabilities approach might help us to overcome these challenges.
The project website as a resource
I held a roundtable meeting in June 2018; the report of that discussion is published on the project website here. At that discussion, participants likened ‘learning to decide’ to learning to drive – decision-making is a learned skill that requires practice and support. It also requires support for the adults in a young person’s life to help them make the shift from advocate to supporter.
The project website also has a number of blog posts published during the course of the project and links and resources, including information resources for young people.
A starting point is the need for better quality data. Both the SEND Tribunal and SEND mediation providers experience some level of involvement by children and young people, but information on their involvement is not routinely collected or reported. The project has illustrated the data gap in this area, which has been described as an area that is ‘anecdote rich but data poor’.
Other conclusions relate to the lack of an independent redress mechanism for complaints about schools, which are responsible for providing support for the majority of young people with SEND. This supports the argument that power should be restored to the Local Government and Social Care Ombudsman to consider complaints about schools.
The availability of independent advocacy for young people would help with supported decision-making in dispute resolution on SEND issues. But provision is patchy, and in any case some young people may not want advocacy. Should provision of independent advocacy for young people aged 16-25 be a default assumption, with young people able to opt out if they choose to do so?
The language of legal rights and mental capacity are in many ways not well suited to SEND disputes, and they insufficiently recognise the importance of relationships and trust. Yet if a rights-based approach is what we are aiming for, then the default position must surely be that young people should be supported to participate in and act as decision-makers in mediation and the tribunal to whatever extent they choose to, and not merely be allowed to exercise ‘voice’. However, that ambition cannot be realised without the infrastructure of advocacy, advice and information, both to young people as decision-makers and to their parents/carers as supporters of young decision-makers.
A Place at the Table has been funded by grants from the University of Essex ESRC Impact Acceleration Account (IAA) Fund and Garden Court Chambers Special Fund, with support in kind from KIDS, a national charity working with disabled children and their families. It has been carried out in association with the UK Administrative Justice Institute (UKAJI), a national network of researchers and research users based at the University of Essex School of Law.
The full report can be downloaded here.
About the author:
Margaret Doyle is a Visiting Research Fellow with the UK Administrative Justice Institute at the University of Essex. She has been an independent SEND mediator with KIDS SEND Mediation Service since 2003. She is also a member of the Academic Panel of the Administrative Justice Council. She can be reached on email@example.com.