Local authorities breaching SEND regulations frequently with mediation shortcomings, MPs told
Parents of children with special educational needs are being let down by local authorities who fail to comply with legal obligations around mediation, according to a senior solicitor at charity Independent Provider of Special Education Advice (IPSEA).
Speaking to the Education Committee last week, Georgina Downard, Senior Solicitor at IPSEA, said that councils often send staff without the power to resolve disputes, which is in breach of legal requirements.
Downard told MPs that mediation can be effective in resolving issues without the need for appeal in cases where the parent is fully informed and the local authority, and where relevant, the integrated care board, complies with the law.
However, she said IPSEA "frequently hear[s] that that does not happen".
She said: "For example, we often hear of local authorities sending a member of staff to mediation who does not have the authority to settle the issues that are in dispute, even though it is a legal requirement for them to send someone with that decision-making power.
"Instead, authorities often send somebody else who effectively says, 'I will have to take that back to a decision maker or to a panel that might not be due to meet for some time in the future'."
She said that for some parents, these circumstances may mean they inadvertently miss their opportunity to appeal, which is a breach of the SEND regulations.
“That not happening could make mediation a lot more effective,” Downard added.
Downard also noted that in some cases, IPSEA hears that local authorities advise parents to skip mediation and take their complaints to the tribunal.
She said: "Even though they have a requirement to attend if a parent requests mediation, some authorities tell parents that they will not. That is an obvious barrier there."
Another barrier she reported to the committee included local authorities not arranging the mediation session in time, which she said breaches regulation 36, and then subsequently refusing to mediate at all or refusing to mediate about the placement in the EHC plan, section I.
"A parent does not need to have a mediation certificate if they are to appeal only section I, but they still have a right to engage in that process," she continued.
"While we have been doing a lot to try to raise awareness of that, some local authorities still seem to misunderstand that and say no to mediating."
Downard suggested that judicial alternative dispute resolution, which is being trialled by the tribunal in relation to appeals around placement, could help alleviate the pressures.
Judicial alternative dispute resolution is a short hearing in which both parties meet with a SEND tribunal judge to discuss an appeal and attempt to reach a compromise or agree on a resolution without having to attend a full hearing.
"We heard at tribunal user group meetings at the end of last month that around 70% of the cases where they employ this method settle earlier without the need for a hearing," she said.
Commenting more widely, Downard said the onus should not be on parents to fight for what their child needs and what they are entitled to and go through lengthy appeals.
She said: “It would not be if local authorities were adequately resourced and if they made decisions in line with the law the first time around. It should not be accepted that they do not.
“We need a zero-tolerance approach to authorities not complying with their legal duties to children and young people with special educational needs and disabilities, and by that I mean not complying with the existing legal framework. Local authorities should be expected to make lawful decisions about these children, and they should be sanctioned if they don’t. At the moment we see the same authorities making the same unlawful decisions on repeat and they can effectively put off revisiting that until a tribunal hearing many months down the line.”
Downard also said IPSEA frequently sees local policies that do not comply with the law and they in turn lead to unlawful decisions that are successfully challenged.
“If local policy consistently and accurately reflected the legal position, we believe that this would lead to lawful decisions and less need to appeal,” she argued.
Downard said IPSEA engaged with local authorities on securing corrections to their policies when it has the capacity to, “but we should not be in a situation where members of the public and charitable organisations police public bodies’ misinterpretation or disregard for the law”.
She suggested that an alternative would be the Department for Education proactively reviewing local policies to ensure that they are legally accurate and taking action when they are not. “If the Department were to systematically do some form of initial review, we would then see that it could be monitored in joint area inspections moving forward.”
Downard said: “Local authorities need to be adequately resourced. The Department for Education should consult with authorities about what they need to comply with these duties and should be looking at their local policies. Unlawful decisions should not be acceptable and there should be negative consequences when they are made. Whether they are financial or reputational or consequences in both areas I believe is for policymakers to bottom out but, as I said, we see joint area inspections playing a role in that.”
Adam Carey
