When parents and young people who disagree with a local authority’s (“LA”) decision not to conduct an EHC needs assessment or issue an EHC plan, or with what the LA has written in an EHC plan, they have a legal right to mediation (and to appeal to the SEND Tribunal). In these circumstances, LAs have a legal duty to arrange and participate in mediation (section 53 Children and Families Act (“CAFA”) 2014).  

Details of the legal framework for mediation are set out in the Special Educational Needs and Disability Regulations 2014 (‘the SEND Regulations’). 

Regulation 38(1) of the SEND Regulations includes: 

The following persons may attend the mediation – 
(a) the parties to the mediation; 
(b) any advocate or other supporter that the child’s parent or the young person wishes to attend the mediation; 
 
(e) any other person, with the consent of all of the parties to the mediation, or where there is no such agreement, with the consent of the mediator.’ 

This case concerned whether the parent’s “advocate or other supporter” could be a lawyer.  

The LA argued that an advocate is different from a lawyer and therefore a parent is not entitled to bring a lawyer to mediation without consent. 

The Judge disagreed and stated [emphasis added]:  

‘Nowhere in this scheme is there any suggestion that a local authority is entitled to control whom a parent wishes to bring to an independent mediation for support. The fact that it is someone the parent wishes to have there for that purpose is enough, and important in its own right. That person – whoever they are – may or may not prove an asset to the mediation process or make the mediator’s job any easier. That is not the point. The point is that the parent is not alone, and has someone there of their choosing, a choice entirely up to them’(paragraph 30) 

The real question in my view is whether there is legal authority to be found in the [CAFA] 2014 Act, or the [SEND] Regulations made under it, for a local authority to control whom a parent wishes to bring with them to an EHCP mediation for support, and to refuse to arrange for or participate in mediation if it does not approve of that person, on the grounds that they are a lawyer or for any other reason. The answer is no.’ (paragraph 35) 

The full case report can be accessed here.

Implications of the decision  

This case confirms that a parent or young person is entitled to choose who supports them during mediation. If they would like someone to do so, the LA cannot refuse to participate if it disagrees with who the they have chosen. This includes if the parent wants to be supported by a lawyer.  

There is no requirement for a parent or young person to be supported by an advocate, lawyer or other supporter at mediation but if they would like support they are legally entitled to choose who provides this (at their own cost if that person charges a fee).   

The case does not address an LA wanting to attend mediation with a lawyer when the parent does not have one. However, the LA’s entitlement to bring someone else to mediation is different: Regulation 38(1)(e) of the SEND Regulations is clear that any other person may only attend ‘with the consent of all of the parties to mediation, or where there is no such agreement, with the consent of the mediator’.  

See also our information on where parents and young people can get help and advice about mediation and appealing.