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Kumar v London Borough of Hillingdon [2020]

On 25th November 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.

 

Author – Joseph Mulrooney, SEND Mediator

 

Posted in SEND mediation, Uncategorised

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Did you know?

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According to the CEDR 2018 audit, 89% of mediations settle successfully on the day or shortly afterwards.

16th August 2017

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