The Ministry of Justice (MoJ) recently called for evidence on alternative methods of dispute resolution, with the aim of reducing the number of cases going through the court process 'unnecessarily'. Ministers are clear that they want to see an increase in the uptake of 'less adversarial options'. The government’s starting point is that the number of legal appeals must be reduced.
IPSEA’s starting point in our response was different. As an independent charity that provides advice to families of children and young people with special educational needs and disabilities (SEND), we disagree that a reduction in the number of appeals is an appropriate end in itself. While some problems could certainly be resolved at an earlier stage through discussion and informal means of dispute resolution, there will always be cases where judicial scrutiny is necessary. This must remain a meaningful option to families of children and young people with SEND.
Our evidence to the MoJ was clear that any changes to the courts and tribunals system must take account of the particular factors relating to the SEND Tribunal and the families who rely on it. One of these factors is the inherent inequality that exists in SEND disputes. These cases involve individual parents, carers or young people challenging a public body. A dispute over a child or young person’s special educational provision is very different, for example, to a private family law dispute or an employment dispute, where there is generally a much greater equality of arms.
The SEND reforms introduced by the Children and Families Act 2014 were intended to make the system of supporting children and young people with special educational needs more collaborative and less confrontational. In practice, however, families frequently experience fraught and lengthy journeys to get the support their children need and to which the law entitles them.
The aim of dispute resolution in relation to SEND should be to resolve all disputes promptly and at an early stage, so that support can be put in place with minimum delay for the child or young person concerned. Families would welcome, and benefit from, effective dispute resolution processes, so that appealing to the SEND Tribunal is not the only realistic way of securing the special educational provision their children need.
However, dispute resolution is more useful in some types of SEND disputes than others, and specifically where parents, carers and young people are not encouraged to relinquish their legal entitlements. For example, mediation tends to work well in ‘refusal to assess’ cases, as this is often the first time, in our experience, that a local authority fully engages with the evidence about a child or young person’s special educational needs. But it may not be at all appropriate in complex appeals about special educational provision (or in some cases health and social care provision), where a child or young person’s identified needs must be met by law.
Dispute resolution services must be based on a sound knowledge and understanding of the SEND legal framework. Parents need an assurance that they still have the option of pursuing an appeal to the SEND Tribunal if their child’s needs remain unmet. Further, they need to be assured that the aim of dispute resolution is not to persuade them to give up their child’s legal entitlement to provision that meets their particular needs, or to agree to a solution that is less beneficial for their child than a ruling from the Tribunal would be.
We are firmly opposed to any suggestion that mediation should ever be mandatory. Mandatory mediation is potentially an added hurdle for families on the obstacle course of obtaining the right support for their child – and while it is happening, the child’s needs may remain unmet. (In addition, while a local authority cannot lawfully refuse to participate in mediation, we know from talking to families that this happens.)
The vast majority of SEND Tribunal cases are currently determined in favour of the appellant because local authorities routinely fail to make decisions that comply with the law. From our work, it is clear that the legal duties set out in the Children and Families Act 2014 are still not fully understood or observed by local authorities. Rather than focusing on a variety of methods for resolving disputes, a better solution would be to make local authorities accountable for complying with their obligations, so that disputes are much less likely to arise in the first place.
The Department for Education (DfE) is in the middle of a major review of how the SEND system works, what the problems are and how they might be addressed. But many children and young people will be affected just as much by policy developments at the MoJ as at the DfE. Is it too much to hope that the two departments will work in tandem, rather than at cross purposes?
Ali Fiddy is CEO at IPSEA (Independent Provider of Special Education Advice)
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