Collins Rice: None of the council’s business
The High Court has dismissed the objection of local authority to the mother of a child with special educational needs bringing a lawyer with them to a mediation.
Mrs Justice Collins Rice said [1] it was “none of the local authority’s business” whether a lawyer accompanied the mother of a boy with complex special needs to the mediation over his educational and health care plan (EHCP).
“Local authorities have huge powers over the lives of families with children who have special needs, making decisions with potentially lifelong consequences,” she said.
“Where parents are unhappy with those decisions, there is a fundamental and frightening inequality of power.
“That is why there is not only a legal right of appeal, and a legal right to independent mediation, but also a legal right to have someone there for moral support in whatever way a parent wishes – emotional strength, help with understanding what is going on, or help with articulating what they want to get across.
“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.”
Collins Rice J said the London Borough of Hillingdon argued that “for mediation to work it is not only unnecessary to have a lawyer, it is necessary not to have a lawyer, unless the local authority agrees or the mediator consents”.
Families have a right to mediation over a disputed EHCP under section 52 of the Children and Families Act 2014. When Ms Kumar told the council she wanted to pursue mediation, the council replied that it would not attend one with her lawyer present.
The council argued that a lawyer advocate was likely to be objectionable and “contrary to the spirit and place of mediation in the statutory scheme”, because they “inevitably” formalised mediation proceedings, introduced an adversarial approach, and put a strain on local authority resources in requiring the deployment of their own legal team.
The judge said there was some evidence that Hillingdon has a policy or at least a practice of participating in mediation only on the basis that no lawyers attend.
Collins Rice J said regulation 38(1)(b) of the Special Educational Needs and Disability Regulations 2014 allowed Ms Kumar to bring “any advocate or other supporter that the child’s parent or the young person wishes to attend the mediation”.
The judge said the “only visible limitation” on this was that they could only bring one supporter. There was no legal authority giving the council the power to control whom a parent brought with them to an EHCP mediation.
She concluded: “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.”