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A National Mediation provider appointed by scores of Local Education Authorities across England in child special educational needs cases was forced to apologise this week after a challenge brought against it by Sinclairslaw CEO Mr Michael Charles.
The debate began after a client of the firm in a special needs case asked the mediation service to allow a lawyer to attend a meeting between themselves and their Local Authority in order to resolve a dispute in regard to a young person’s Education and Health Care Plan (EHCP).
An EHCP, created by the 2014 Children and Families Act is an important legal document obliging a local authority to record details of the special needs of a child or young person along with the specific provision that is required to meet those needs.
The parent in the case wanted a lawyer to attend a mediation meeting between themselves and their local authority after it served a final EHCP upon them. This normally gives two months within which to appeal to a special needs tribunal unless mediation is first elected.
When asking for a lawyer to attend the meeting, the mediator explained that a lawyer could not attend on behalf of the parents. The parents challenged the decision saying that they did not have the confidence to settle a case and formulate for themselves the wording that such a plan requires without legal help expressing their worry that otherwise they would be up against a highly skilled local authority representative who was very familiar with the process as well as the law. This they argued, in such an important case designed to resolve the legal wording to be inserted into the plan would create a serious imbalance of power.
The mediator refused explaining to them that lawyers could not attend. When they pressed the issue, they were told that their only option would be to decline mediation and go to tribunal. It accordingly issued a mediation certificate which documents a refusal to attend mediation on the parent behalf thus enabling an appeal to the tribunal.
The parents (who for anonymity purposes are called “P”) complained arguing that they did not want to be put to the expense and worry of a tribunal as they had hoped to work with the local authority rather than to go into conflict with them. P said “They would not budge” despite all of the protests. “We were being forced to go to a tribunal that we wanted to avoid.”
“Many thousands of mediations take place around the country following the passage of the 2014 Act. Many do so without lawyers” said special needs expert and firm CEO Michael Charles. “However many parents feel overwhelmed or might be worried that they do not have the same experience as the local authority who would naturally be familiar with the process involved”.
He added “I decided to write to them as the information was deeply disturbing. The law fully allows a parent to bring any person they wish to the meeting and it was deeply worrying why such information was being delivered by a large mediation provider engaged by scores of local authorities.
I warned them that a public service provider has a duty not to mislead the public Further that it had a responsibly to get the law right before advising parents”.
The letter was indeed robust. It demanded not only an apology but that the mediator undertake to write to all parents who may have been wrongly told that they could not bring a legal advisor against their wishes.. It called for it to review its policies and that it should also undertake to review all cases in which lawyers were declined so as to ensure that parents who may have settled actually did so, by securing wording in the plan that properly represented the interests of the child or young person rather than the interests of the local authority. The letter warned that unless the mediator did this, all local authorities appointed by it would be asked to drop them or otherwise face a judicial review. Such action of course would have been devastating to the mediation company as local authority contracts were undoubtedly important revenue.
Mr Charles explained “It is frankly absolutely unacceptable for a public service provider to be giving this information which it knew or ought to have known was plainly wrong. How many parents have been told this? How many parents have attended mediation believing that they might have settled the wording in a plan favourably but it was actually to their disadvantage? A local authority has already an army of experts at its disposal including a legal team. It does this every day whereas a parent can be overwhelmed and alone. To deny a parent who wishes to use a lawyer to help them is truly unacceptable. I wanted to make sure that this would never happen again”
After receiving the detailed legal letter explaining the law in precise terms the mediator backed down and swiftly apologised. It wrote that it would immediately offer the parent a mediation in which a lawyer could attend on their behalf.
“I remain worried about the number of people who in the past have attended mediation alone having been given this wrong advice.” Mr Charles said. “I believe that all the local authorities who have and continue to use this mediation service should undertake to review all its cases in which a matter might have settled without the parent ever having a lawyer present after first requesting one.”
It seems there is good reason for this. The law has long established that the EHCP document must be written using precise language that preserves legally enforceable rights. Yet Mr Charles concluded “It is rare that I see a legally acceptable EHCP that has not first been checked by a specialist SEN lawyer. ”
An update on this will follow.