The claimant’s son had complex special educational needs which were the subject of an education, health and care plan prepared for him by the local authority. As the claimant was dissatisfied with the contents of the plan she invoked her right to mediation under section 52 of the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 made under section 56 of that Act. The claimant wanted her lawyer to attend the mediation with her but the local authority refused to participate in the mediation process on that basis, relying on regulation 38(1)(e) of the 2014 Regulations as requiring the consent of the parties or, failing that, of the mediator, for the lawyer’s attendance. The claimant sought judicial review challenging the lawfulness of the authority’s position on the ground that she was entitled to bring a lawyer to mediation pursuant to regulation 38(1)(b) which allowed the presence of “any advocate or other supporter” whom she wished to attend.
On the claim—
Held, claim allowed. The Children and Families Act 2014 created both a legal right to mediation and a corresponding legal duty on a local authority both to arrange mediation and to participate in it. The right of a family to bring a chosen supporter with them was key to the exercise of the right to mediation and no exception was expressly placed on it. The only visible limitation in regulation 38(1)(b) of the Special Educational Needs and Disability Regulations 2014 was singularity, in that there was a right to one supporter but any more than that had to be agreed all round. Nowhere in the statutory scheme was there any suggestion that a local authority was entitled to control whom a parent wished to bring to an independent mediation for support. The claimant was therefore entitled to bring along any supporter she wished, and that supporter could be her lawyer or anyone else she chose. It followed that, in refusing to accommodate the claimant’s choice and refusing to arrange and participate in mediation, the local authority was in breach of its statutory duties (paras 27-32, 36).
Lucinda Ferguson (instructed by SinclairsLaw) for the claimant.
Peggy Etiebet (instructed by Legal Services, Hillingdon London Borough Council) for the local authority.