On 25th November 2020, in the case of Kumar v London Borough of Hillingdon Ms Kumar brought judicial review proceedings against London Borough of Hillingdon ('the LA') following their refusal to take part in mediation because she intended to bring her solicitor with her.
Ms Kumar has a young son with an EHCP. Following the annual review the LA was late in providing the revised EHCP. When it was provided MS Kumar disagreed with its contents and eventually a final plan was issued and Ms Kumar was advised of her rights to appeal.
Ms Kumar advised the LA that she wished to take part in mediation. The LA said that a solicitor could only attend a mediation if they agreed to it, and they would not agree as they felt the presence of a solicitor would make the mediation less formal and more adversarial. The case centred chiefly around Regulation 38(1)(b) of the Special Educational Needs and Disabilities Regulations 2014. The LA submitted that the definition of advocate here did not extend to include a solicitor, and so Ms Kumar did not have a statutory right to bring a solicitor without the consent of the LA, or if the LA won't give consent then she must seek the consent of the mediator.
Ms Kumar submitted that the definition of 'advocate' obviously was meant to include a solicitor.
Kumar v London Borough of Hillingdon [2020] - Decision
The court found against the LA. The court stated that Regulation 38(1)(b) simply allows Ms Kumar to bring any one person that she chooses to. If she wishes to bring additional people then she must seek the consent of the LA, or if the LA won't give consent then she must seek the consent of the mediator. The court was emphatic in its decision:-
"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."
"I was invited in this case to reflect on the meaning of the word 'advocate'. The real question in my view is whether there is legal authority to be found in the 2014 Act, or the 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."
You can find the full judgment here.
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Author's thoughts - this is case appears to be a scenario where nobody at the LA has stopped to ask themselves why they are so certain that a solicitor present at a SEND mediation wouldn't be helpful to the overall process. Having a solicitor present can prove to be very helpful for the parent/young person, but also very effective at ensuring that the mediation is a productive process.
On a side note, it is also a little surprising to see that the mediator didn't choose to exercise their power to consent (or not) to the attendance of the solicitor where the LA refused to.
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About the author
Joseph Mulrooney is a Director at ACSL Solicitors, with expertise in the area of SEND law. He is also an experienced SEND mediator. You can contact Joseh via email at joseph.mulrooney@acsl.org.uk or by telephone on 0151 363 3977.
