A mother was entitled to bring a lawyer to support her at a mediation of her dispute with Hillingdon Council about her son’s Education, Health and Care Plan and the local authority was in breach of its statutory duties by refusing to participate, a High Court judge has ruled.
In Kumar v London Borough of Hillingdon (Rev 1)  EWHC 3326 the claimant’s son has complex special educational needs.
His plan had an annual review on 5th June 2019. The review report identified a need for changes to his plan. The report was sent to Hillingdon in July 2019. A local authority is required to issue a revised plan within four weeks.
Mrs Justice Collins Rice said that "after months of delay, and the issue by Ms Kumar of judicial review proceedings, a draft revised plan was eventually produced on 4th March 2020".
Ms Kumar was not satisfied that it properly reflected the review report's recommendations. After some correspondence, Hillingdon issued the plan in final form on 30th April 2020, advising her of her right of appeal and her right to mediation.
The claimant told Hillingdon on 7th May that she wished to pursue mediation, and contacted the mediation service on 8th May. She wanted her lawyer to attend the mediation with her.
On 20th May the mediation service informed her that Hillingdon would not attend a mediation with her lawyer present; they saw mediation as a less formal process and would only have lawyers involved if it was part of a Tribunal process.
Ms Kumar responded on 26th May that she had been advised that mediation was obligatory on request, and that she was entitled to have her legal adviser there.
The mediator replied the following day that 'as mediation is an informal and non-legalistic process, unless both parties agree to the attendance of legal representatives, we will not be able to facilitate the meeting'. They attached their policy document on legal representation at mediation, to support that position. That document referred to the final bullet point of paragraph 11.38 of the SEND Code of Practice.
Ms Kumar issued a letter before action on 28th May challenging Hillingdon's position and asserting a right to bring a lawyer to mediation under Regulation 38(1)(b) of the Special Educational Needs and Disability Regulations 2014.
The mediator responded on 1st June, offering an unreserved apology and confirming immediate revision of their policy. They said their original rationale had been to protect unrepresented families from feeling compelled to take part in mediation as an alternative to Tribunal proceedings.
Hillingdon, however, replied directly on 11th June maintaining its position. It said that Regulation 38(1)(b) did not entitle a parent to have a lawyer at a mediation. If a parent wished to bring a lawyer to mediation they must rely on Regulation 38(1)(e), which required the consent of the local authority or, if it did not consent, the consent of the mediator.
The council was not prepared to consent or participate if the parent sought to bring a lawyer with them without the consent of the mediator pursuant to Regulation 38(1)(e).
It was this position which Ms Kumar challenged in the proceedings.
Mrs Justice Collins Rice said her starting point was that the Children and Families Act 2014 created “a legal right to mediation and a corresponding legal duty on a local authority both to arrange mediation and to participate in it”. [judge’s emphasis]
The judge said the Regulation-making power envisaged practical provision for the exercise of that right and the fulfilment of that duty. “Of course it necessarily places some practical limitations on both, as well as spelling out some of the detail. But there are inherent limits on how far it can do so, consistently with respecting the integrity of the rights and duties in the first place. That is relevant to understanding the detailed provision the Regulations make.”
Mrs Justice Collins Rice said that included what the Regulations provided 'about who may attend mediation'.
“At one end of the spectrum, the parties obviously have a right to attend, otherwise the right to mediation would be substantially abridged,” she said.
“At the other end of the spectrum, clearly all and sundry cannot turn up, otherwise the process would be unmanageable. Regulation 38 puts 'any advocate or other supporter that the parent wishes' second in its list, after the parties themselves. The right of a family to bring a chosen supporter with them is key to the exercise of the right to mediation itself. No exception is expressly placed on it, and a Court should be slow indeed to read one in.”
The judge said that nowhere in this scheme was there any suggestion that a local authority was entitled to control whom a parent wishes to bring to an independent mediation for support. “The fact that it is someone the parent wishes to have there for that purpose is enough, and important in its own right. That person – whoever they are - may or may not prove an asset to the mediation process or make the mediator's job any easier. That is not the point. The point is that the parent is not alone, and has someone there of their choosing, a choice entirely up to them.”
She added: “Parenting a child with special needs is demanding enough; disputing with a local authority is daunting for the most confident and best-equipped parent; the right to have a supporter is just that. It does not matter who they are, lawyer or not. It is none of the local authority's business.”
Mrs Justice Collins Rice returned to the scheme of Regulation 38, and said the only visible limitation on Regulation 38(1)(b) was singularity. There is a right to one supporter. That is the practical restriction that the secondary legislation places, in order to make mediation workable. “Any more than that – or someone there for another special purpose whether at the instigation of the parent or the local authority - has to be agreed all round.” Regulation 38(1), she said, was the usual sort of residuary power to make additional provision.
The judge said she was not convinced that paragraph 11.38 of the Code of Practice suggested anything else. “This is a paragraph which is about making mediation work well – best practice, in other words – and not in my view capable on any reading of seeking to limit the Regulation. 'Legal representation' over and above the entitlement to a single supporter – or, more specifically, whether that is ever 'necessary' – may well be a matter for negotiation. Sometimes support may be an either/or choice. If it is, it is worth noting in passing that, where the consent of a local authority to additional attendance at mediation under Regulation 38(1)(e) is required, that is a discretion which must in any event be exercised properly on a public law basis, taking particular account of the matters set out in section 19 of the Act, including the wishes of parents.”
The judge said the real question was whether there was legal authority to be found in the 2014 Act, or the Regulations made under it, for a local authority to control whom a parent wishes to bring with them to an EHCP mediation for support, and to refuse to arrange for or participate in mediation if it does not approve of that person, on the grounds that they are a lawyer or for any other reason. “The answer is no.”
Mrs Justice Collins Rice concluded: “Ms Kumar is entitled to mediation of her EHCP dispute with Hillingdon, and Hillingdon has reciprocal legal duties to arrange, and participate in, that mediation. Ms Kumar is entitled to bring along any supporter she wishes. That supporter may be her lawyer, or anyone else she chooses. In refusing to accommodate her choice, and in refusing to arrange and participate in mediation, Hillingdon is in breach of its statutory duties.
“I said above that this case raises a question of law in an unusually pure form. But at the heart of it all is a child with special educational needs, whose mother has had to persist for months to get their local authority to do its duty by him. Every month in that child's life matters. Local authorities are hard pressed, never more so than in this year of 2020, and every SEN child is a priority. But the case for getting this mediation back on foot and resolving Ms Kumar's son's EHCP is pressing, and Hillingdon must now do so.”