SEND reforms: Mandatory mediation in administrative justice

SEND reforms: Mandatory mediation in administrative justice

The newly published and long-awaited SEND Green Paper proposes ‘strengthening redress’, including making mediation mandatory in appeals of local authority decisions on special educational needs and disabilities (SEND). This post explores why this proposal should be a concern to all those involved in administrative justice.

Background

Special educational needs and disabilities, known as SEND in England, is an area often described as a battleground and a crisis. It has been the subject of inquiries by the Commons Education Select Committee and investigations by the Children’s Commissioner (most recently a study of education, health and care plans) and the Local Government and Social Care Ombudsman. It has seen major legislative change, most recently with the Children and Families Act 2014. It is now facing more change following a review carried out by the Department for Education, published on 29 March 2022 as a Green Paper entitled SEND Review: Right support, Right place, Right time.

The consultation runs until 22 July, which was an extension following the late publication of accessible versions in British Sign Language and Easy Read formats. That in itself caused consternation from the start – a review proposing major changes to the lives of disabled children and young people was published originally without any accessible versions. The consultation contains many proposals, covering consistent national standards, partnership working, investment in schools and alternative provision, standardising support plans, improving accountability, and dealing with disputes. The website Special Needs Jungle has produced helpful resources for understanding the proposals and replying to the consultation.

Much in the Green Paper will be a concern to those involved in administrative justice, including what appears to be a shift of power from local authorities (LAs) to central government, and specifically to the Department for Education. LAs would retain power in relation to high needs funding for SEND, but the responsibility for determining budget allocations to maintained schools for general SEN Support would shift to the DfE. Combined with the ambitions stated throughout the paper for a ‘full trust-led future’, in which all schools are part of a Multi-Academy Trust, this is concerning. Academies are state-funded schools directly funded by the DfE and independent of LAs. Most children with SEND have their needs met by schools, under SEN Support, and the vision is clearly that the DfE, not LAs, will have oversight of how this support is funded in schools.

This post focuses on one aspect of the Green Paper: proposals to streamline redress, and in particular the proposal to make mediation mandatory in SEND appeals.

Initial response to the review

The Department describes the review as setting out the government’s proposals for ‘a system that offers children and young people the opportunity to thrive, with access to the right support, in the right place, and at the right time, so they can fulfil their potential and lead happy, healthy and productive adult lives’.

Most commentators have described the review in less complimentary terms. Ali Fiddy, Chief Executive of IPSEA, described the review as a ‘wolf in sheep’s clothing’ in a recent Education Select Committee evidence session on the SEND Review. She points out that its main aim is to save costs, and what it proposes is ‘a fundamental change in the legal framework, to the detriment of disabled children and young people’. Many families and professionals question why legislative change is needed at all, when anecdotally the 2014 framework under the Children and Families Act works well if LAs comply with their duties. In that view, what’s needed is more enforcement, not more rules to be enforced.

But as Mick King, Local Government and Social Care Ombudsman (LGSCO), emphasised at the same evidence session, the problem isn’t ‘unkind bureaucracy’ but lack of resources for LAs. LAs are full of dedicated, hardworking people, he said; they’re not all acting with ill will. The funding cuts to LAs (and indeed to the LGSCO itself for its scrutiny work) have severely hampered their ability to cope with the increased caseload brought about by the expansion of the SEND framework to include from birth to age 25, a change brought in with the 2014 Act.

There are glaring omissions, including the Green Paper’s lack of attention to the Equalities Act 2010 (mentioned briefly, in relation to disability discrimination by schools); neither human rights nor the UN Conventions on the rights of children and disabled people are mentioned. There is also no mention of the role of the ombuds; both the LGSCO and the Health Service Ombudsman consider complaints about SEND that involve local authorities and clinical commissioning groups.

Nor is there any reference to how school-based complaints are handled. Since the LGSCO’s remit to look at what goes on within schools was removed a decade ago, children and young people have had no access to an independent body for complaints about schools. The Green Paper says nothing about this administrative justice lacuna.

‘Streamlining redress’ – what’s being proposed?

The Green Paper proposes mandatory mediation for disputes that can be appealed to the SEND Tribunal. It also suggests that if mandatory mediation ‘does not prove effective in strengthening earlier redress’, a possible additional stage, called ‘independent review’, would be introduced as another mandatory step before an appeal can be lodged.

We have had two elements of mandatory mediation since the reforms in 2014. One is the requirement for parents and young people to obtain a mediation certificate before lodging an appeal. The other is the requirement for local authorities (LAs) to attend a mediation if the parent or young person requests one.

The Green Paper also states that the ‘national standards’ will set clear expectations about the timescale for mediation to take place and that LA attendees must have the authority to make decisions in mediation, not simply refer a decision back to the panel. We already have those too. The problem appears to be lack of compliance, not lack of clear expectations.

In my experience, the first element of compulsion is helpful. A requirement to get information about the options is a good thing, and if the MIAS process is working as it should, it helps parents and young people make informed decisions about whether or not to use mediation, without coercion.

As for the second element of compulsion, on LAs, the jury is still out. Has mandatory mediation led to more accountability and to better outcomes for children and young people? It has certainly led to more mediations – an exponential increase, from 75 in 2014 to 5,100 in 2021 (I’ve written about this exponential increase here). Before the reforms, LAs would sometimes decline to mediate even when the parent or young person wished to. Since compulsion was introduced, mediation has become the default position now for some LAs in responding to a SEND dispute.

As the number of mediations has increased, however, the commitment to it as a process has declined. This is based on my own experience of mediating both before and after the 2014 reforms. For the past eight years LAs have been required to mediate if the parent/carer/young person chooses to do so. But cases now come to mediation that should have been dealt with earlier and more locally. In addition, making mediation the default appears to have resulted in less preparation for mediation by some LA representatives (by no means all), which makes mediation less likely to result in good outcomes and more frustrating for all.

Hostility to mediation

The proposal for mandatory mediation has been criticised by parents and carers and the advocates and lawyers working with them, but the debate about the Green Paper has also exposed a widespread hostility to mediation in SEND. The criticism seems largely based on an impression that LAs are failing to send decisionmakers to mediation, which suggests a failure in implementation rather than a problem with mediation. LAs are required to send someone with decision-making authority to mediation, and mediators should be confirming this at the start of the meeting. If that isn’t happening, we need to look at how existing requirements are being met, or not, and at mediator practice standards – not dismiss mediation.

Concern about mediation’s role in administrative justice is a more general one, however. In research on mediation and judicial review, colleagues and I explored this concern and addressed some of the myths surrounding mediation, such as the myth that mediation is about compromise, and rights can’t be compromised. Our findings suggest that mediation has a limited role to play in judicial review (most judicial review claims are settled and most settlements satisfy the claims made in the challenge), but it has a valuable role nevertheless. In several of the case studies in the research, mediation enabled underlying issues in a dispute to be teased out, and all the successful mediations resulted in outcomes that were more holistic and gave claimants more than they would achieved had they been successful at court.

We found that mediation, although it is not necessarily cheaper or faster than litigation, nevertheless provides innovative and long-lasting benefits. That research suggests that, in the administrative justice arena, rather than being the sort of ‘cheap justice’ that rights advocates often object to, ‘mediation might in fact be the Rolls Royce option’ (p87). And it It can works as a complement to courts and tribunals, not only in judicial review but also in the Court of Protection, often in complex cases in which disability rights are at the core.

In the mediation and judicial review research, we suggest that policy makers advocating for more mediation may have adopted claims for the speed and cost benefits of mediation made by mediation providers whose experience is more often derived from commercial law disputes. These present very different issues from, and cannot therefore be simply mapped onto, public law disputes. And it’s not only about the issues at stake, but the relationships and the trust, or lack of it, that affects mediation’s place in administrative justice disputes.

Not a cheap and fast settlement based on compromise

The Green Paper states that mediation ‘helps to maintain and improve relationships…which is important for long-term collaborative working and supports better outcomes for children and young people’. This is a bold claim, and one I wholeheartedly believe in. A positive experience at mediation can help to build trust between the family and the LA. This is likely to be an ongoing relationship for many years, and it requires trust and good communication.

But mediation as envisaged in the paper will not achieve that; its potential in administrative justice areas such as SEND is not for cheap and fast settlement based on compromise. In the SEND context, rather than measuring the success of mediation by the number of settlements achieved, we should be aiming for mediation to be measured in terms of sustainability – whether it offers an alternative to the assembly line of complaints and appeals that the administrative justice ‘system’ increasingly resembles.

Recasting mediation as a required cheap ‘redress’ mechanism is a retrograde step. When I started in SEND mediation, 20 years ago, the norm was preparatory calls with every attendee and a 3-4-hour in-person meeting: long, yes, but also an indication of the commitment required and the time needed to allow for constructive and collaborative working. Today, the norm is little or no pre-discussion and a 1 ½-hour meeting (now, since Covid, usually online), and often there is pressure from LAs to squeeze mediation into the margins of a busy day. We have seen a perfect storm in the combination of LA funding crises, pandemic-inspired online-by-default mentality, and the existing element of compulsion on LAs – together, they have made SEND mediation at best a quick fix and at worst a tick box.

Fewer disputes, not more redress

The Green Paper’s proposals on redress display stuck thinking: more of the same, please, but cheaper and faster. The question is not how to reduce expensive tribunal appeals but how to craft healthier citizen-state relationships. We need more sustainability, not more compulsion. How do we achieve that?

There are several key ways to build a more sustainable system, one that is likely to foster the trust that should underpin these relationships. Among these are:

Improve initial decisions and decision-making. Too often, decisions on SEND requests (such as requests for assessments or for Plans) are taken by a panel that is hampered by not having the correct information – information might be out of date or missing and, crucially, there is no personal ‘testimony’ to supplement the written word or address discrepancies.

A decision not to conduct an assessment of EHC needs is a prime example. The legal threshold for agreeing to an assessment is low. Of the 8,579 appeals lodged last year, almost more than one-quarter were for refusal to assess. Yet if you look more closely at these, only 792 were actually decided by the Tribunal. The rest were withdrawn or conceded, presumably with the LA agreeing to carry out an assessment. Why didn’t that happen earlier? Refusals to assess shouldn’t need to go to Tribunal. They shouldn’t need to go to mediation. Far better is to improve the initial decision-making and the discussions following the decision.

As highlighted by Robert Thomas and Joe Tomlinson in their 2016 report on improving initial decision-making within central government departments, within administrative justice there is an inherent and unresolvable tension. The ‘governmental’ approach taken by government focuses on procedures and on cost and efficiency; the ‘legalistic’ approach taken by advocacy organisations focuses on achieving justice and legally sound decisions. There are, of course, ‘many reasons why government should make decisions right first time. Good initial decisions mean better implementation of policy, fewer challenges and reduced cost on redress mechanisms. It also means better service for claimants, less stress and anxiety for claimants, and enhanced public confidence in government’ (p.6) But Thomas and Tomlinson also explain why it is unrealistic to expect the same quality of decision-making at LA level that is delivered by tribunals – among them the sheer volume of decisions and the insufficient resources invested in initial decisionmaking versus tribunal adjudication.

As ombud Mick King explained at the Education Select Committee evidence session on the Review, ‘The focus on redress suggests that the problem is at the end of the system and there is too much conflict at the end. There is conflict at the end of the system only because it is not working upstream…’. Invest upstream, in other words; invest in initial decision-making and communication. Invest in more collaboration, more listening to young people and more proactive gathering of relevant information. These take time and resource, and LAs have less and less of both these days.

Be more ambitious, creative and collective. Often law doesn’t allow us to be as ambitious as we could be in our reimagining. What if we looked at it through a different lens and considered that aiming for ‘correct’ decisions is not ambitious enough? ‘Getting the basics right’, as the LGSCO urges LAs to do, should be a given, as should legally sound decisions. The law is an essential framework. But accountability isn’t just about complying with the law. Decisions can be correct and perfectly legal, and tick all the right administrative boxes, and they still don’t get to the ‘right answer’ for that child or young person or that family.

But the emphasis on what’s right for that child or young person needs to be balanced with LA duties to do what’s right for all children and young people and for our communities. Schools need to be supported and properly resourced to be as inclusive as possible. There are both individual needs and wider public needs that must be met, but our focus on individual rights entitlement risks obscuring our shared concerns. Most of our legal processes can’t accommodate both the individual and the collective. Mediation potentially can, but only if it’s valued. It can accommodate many voices and issues and it can complement other accountability mechanisms, working in tandem with the SEND Tribunal and with the LGSCO, not as an alternative.

In SEND, mediation encompasses a multiplicity of issues that go beyond the grounds for appeal, reflecting the ongoing relationship between families and schools and local government. It is not only the interests and needs – including the need to be heard and acknowledged, to communicate – of the parties attending that have to be taken into account. Collective interests are inherent in the duties that local authority SEND teams have for accounting for use of public funds, in schools’ needs to be supported, and in the needs of all pupils in the community to have access to appropriate inclusive education.

Alternative consultation questions

In our co-authored book, Nick O’Brien (a SEND Tribunal judge) and I used SEND as a case study in reimagining the relationship between public bodies and people. Our vision is not for many layers of what is called ‘redress’, as proposed in the Green Paper, but for a holistic network. The Tribunal, mediators, the ombuds – we all need to know what each other does, and we need to ensure that what we do is a means of improving initial decision-making – not part of a never-ending assembly line of complaints and disputes.

Instead of consultation questions on ‘strengthening redress’, the Green Paper could usefully prompt more reimagining that would strengthen relationships, with questions such as:

• Can we imagine a more collaborative form of initial decision-making by LA SEND departments, one that involves parents, carers, young people and schools – and with effective input from colleagues in social care and health?
• Can we shift our thinking from individual rights entitlement, fertile territory for battlegrounds, to collective rights, where we recognise that all individuals’ needs matter to all of us?
• Can we imagine a system where mediation is more than a settlement mechanism, where it is valued as a collaborative process of change?
• And can we imagine a system where mediation, the ombuds and the Tribunal work in collaboration, as complementary accountability processes that offer the best chance of holistic and sustainable oversight of SEND decision-making?

Margaret Doyle is a Visiting Research Fellow with the University of Essex School of Law and an accredited SEND mediator. She is the author of A Place at the Table: A report on young people’s participation in resolving disputes about special educational needs and disabilities (UK Administrative Justice Institute 2019) and co-author (with Nick O’Brien) of Reimagining Administrative Justice: Human Rights in Small Places, (Palgrave/Macmillan 2019).

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