Kumar v London Borough of Hillingdon (Rev 1)

A parent exercising the statutory right to special educational needs mediation is entitled to bring one supporter of their choice. The supporter may be a lawyer. Regulation 38(1)(b) of the Special Educational Needs and Disability Regulations 2014 does not permit a local authority to control that choice or to require its consent, or the mediator’s consent, merely because the chosen supporter is legally qualified. Regulation 38(1)(e) is a residual provision governing additional attendance beyond the entitlement to one chosen supporter. The Regulations must be interpreted in the context and scheme of the Children and Families Act 2014. Statutory guidance cannot restrict rights conferred by the Act and Regulations.

The claimant’s son had an Educational and Health Care Plan maintained by the defendant local authority. Following an annual review and the issue of a final revised plan, the claimant sought mediation concerning the plan and wished to bring her lawyer.

The mediation service initially indicated that legal representatives could attend only with agreement. The local authority maintained that Regulation 38(1)(b) did not include a lawyer and that attendance by a lawyer required consent under Regulation 38(1)(e). The claimant sought judicial review of that position. The central issue was whether a parent may bring a lawyer as an advocate or other supporter under Regulation 38(1)(b), without the local authority’s consent.

1. Claim allowed. The claimant was entitled to mediation of her EHCP dispute. The local authority had corresponding statutory duties to arrange and participate in the mediation.
2. The court interpreted the secondary legislation in the context of the parent statute. Sections 52 and 54(2) of the Children and Families Act 2014 establish a legal right to mediation and a reciprocal duty on the local authority. Section 56(1)(d) separately addresses who may attend mediation, while section 56(1)(f) concerns advocacy and support services. The provisions concerning the latter did not assist in restricting the former.
3. Regulation 38(1)(b) gives a parent the right to bring any advocate or other supporter whom the parent wishes. The word “advocate” is not confined to a non-lawyer. The entitlement is subject to the practical limitation that the parent may bring one supporter. A court should be slow to imply further limits on a statutory right.
4. Regulation 38(1)(e) is a residuary provision concerning additional persons, or persons attending for another special purpose. It does not convert the parent’s entitlement to one chosen supporter into a consent-based entitlement merely because the supporter is a lawyer.
5. The statutory Code of Practice describes best practice and cannot restrict the meaning of the Regulations. The hierarchy of interpretation requires secondary legislation to be understood through its parent Act, and statutory guidance through the legislation on which it gives guidance. The court therefore declined to read the Code’s reference to legal representation as a limitation on Regulation 38(1)(b).
6. The local authority’s refusal to accommodate the claimant’s chosen lawyer, and its refusal to arrange and participate in mediation, breached its statutory duties. The mediation was required to proceed.