Case overview

If you disagree with your local authority’s (LA’s) decision not to carry out an EHC needs assessment or issue an EHC plan, or with what your LA has written in an EHC plan, you 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 (CFA) 2014).  

The legal framework for mediation is set out in The Special Educational Needs and Disability Regulations (The SEND Regulations) 2014. 

Regulation 38(1) of The SEND Regulations 2014 explains who can attend the mediation. This includes any “advocate or other supporter” that you wish to attend, and you do not need the LA or mediator’s consent for them to join.

This case looked at whether a 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 said there is nothing in the law which allows an LA to control who parents or young people bring with them for support or to refuse to participate in the mediation if it is unhappy with who has been chosen.

What does this mean?

You can choose who supports you during mediation. If you would like a supporter to join, your LA also cannot refuse to participate if it disagrees with who has been chosen. This includes if you want to be supported by a lawyer.  

You do not have to have an advocate, lawyer or other supporter at mediation but you can if you would like (at your own cost if that person charges a fee).   

This case did not look at what should happen if the LA wants a lawyer to attend where the parent does not have one attending. However regulation 38(1)(e) of The SEND Regulations 2014 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’. So, if your LA wants a supporter to attend, it will need your agreement (or the mediator’s agreement if you say no). 

The full decision for Kumar v LB Hillingdon (Rev 1) [2020] EWHC 3362 (Admin) is available online.

You can find more information on our where parents and young people can get help and advice about mediation and appealing pages.