Special Educational Needs and Disability
July 2008 Newsletter 1
Important information regarding changes to SENDIST for our users
The new Tribunals Service
On 3 November 2008, SENDIST will become part of a new unified tribunal system under the leadership of the Senior President, Lord Justice Carnwath. Subject to expected Parliamentary approval, there will be two tiers of tribunal:
The First Tier Tribunal
- Will hear all SENDIST appeals against LEAs in England,
- SENDIST will be part of the Health, Education and Social Care Chamber or ‘HESC’, with the Care Standards Tribunal (CST) and the Mental Health Review Tribunal (MHRT),
- We will be called the First Tier Tribunal (Special Educational Needs and Disability),
- HESC will be headed by a new Chamber President, His Honour Judge Phillip Sycamore,
- Each Chamber will have its own unified Rules (see below), that are intended to be simple, flexible and easy to understand
The Upper Tribunal
- will hear appeals by those wishing to challenge a decision if they consider there has been an error of law and will become the normal route for appeals from first tier tribunals instead of going to the High Court.
A copy of the separate new Rules for each tier is available at Tribunals Service latest news
The Senior President of Tribunals
Lord Justice Carnwath states clearly in his first review of the service, that change must not be at the expense of those who use the Tribunals Service. In the difficult transitional phase his key objective has been "to maintain continuity of service for the user, and to put ourselves in the position to build on the strengths of what exists, not to jeopardise it".
The Act
The Tribunals, Courts and Enforcement Act 2007, which introduced the new system is available at the Office of Public Sector Information website.
This imposes a duty on the Senior President to:
- have regard to the need for tribunals to be accessible, proceedings to be fair and handled quickly and effectively, and
- explore and develop innovative methods of resolving disputes,
and requires members to be experts in the particular subject matter or law.
The HESC Rules
The new HESC Rules set out general procedures applicable to all tribunals in the Chamber and will replace the current SENDIST Regulations. These Rules are intended to be "simple, flexible and easy to understand." Their overriding objective is to deal with cases fairly and justly and to avoid delay, so far as is compatible with proper consideration of the issues.
- The Tribunal Procedure (First–tier Tribunal) (Health, Education and Social Care Chambers) Rules 2008 SI 2699/2008
The Senior President has recognised additional specific provision is necessary for SENDIST applications. SENDIST has worked with a group of parents' representatives and Local Education Authorities to ensure the changes preserve what currently works well within SENDIST, with the particular needs of service users in mind. There is a Practice Direction to help interpret key provisions and a new case management system designed to help parties present their cases effectively. The SENDIST Applications document provides details.
- SENDIST Applications
48kb
What this means for SENDIST
Under the new Rules parties will no longer submit parallel case statements. Instead the applicant will put in their case and the respondent will be required to reply within a given period. The case will then be subject to case management by a Chair (see below).
Some key provisions in the Rules will be new for SENDIST:
- A duty to cooperate with the Tribunal.
- Application followed by response (i.e. no case statement period).
- A joint expert will not be ordered against the wishes of the parties and will only be appointed if both parties agree, are agreed on who that person should be and have agreed how that person will be funded. There will be further careful consideration and discussion of the issues in this area before any provisions are made in a Practice Direction.
- A single combined process of application for a review at the same time as making an appeal to the Upper Tribunal on a point of law.
There are also some specific provisions for SENDIST, e.g.
- An exemption from the rule that all hearings should usually be in public.
- A power to require a parent to make a child available for examination or assessment by an expert.
- A similar power to require a school to allow a professional instructed by a parent into the school to assess the child's functioning in a school environment.
Please note that the power in relation to assessments is not a power to direct a child to attend a Tribunal for assessment. These mirror powers are designed to ensure professionals can provide up to date information about a child and ensure the right level and balance of up to date evidence is given to the Tribunal so that it has the fullest possible picture to support effective decision-making for the child.
SENDIST Practice Directions
Practice Directions will apply the Rules to the practice and procedure in our particular jurisdiction. They are intended to include:
- excluding the whole of August and the period form Christmas to New Year from the definition of a ‘working day’
- clear requirements about what additional information must be filed with the application and response
- provision for the views of the child
- details of the information required from parties
- arrangements for submission of video evidence
- specifying who can claim expenses
- applications for costs
Guidance on how to appeal or make a claim will be revised, but we intend to keep the format of all documentation straightforward and easy to use. All Chairs will have the title ‘Tribunal Judges’, but will continue to sit with specialist members with experience and expertise in this area.
The purpose of case management is to ensure the right evidence is filed and the real issues are identified at the right time, within the existing 22 week timetable. This will contribute to improved decision-making and reduce the number of hearings that get cancelled at the last minute at inconvenience and expense to all.
The new case management scheme is the key to ensuring cases continue to be finalised within 22 weeks, supported by a timetable set to ensure late evidence is avoided and which sets a date for the final hearing from the start. The purpose of the new system is to improve cooperation and outcomes by:
- Ensuring parties focus on what is important to the case and to a well-informed decision by the Tribunal
- Minimising delay for children by substantially reducing adjournments that could have been avoided
- Reducing the number of last minute cancellations that often cause stress and anxiety and unnecessary cost
- Achieving earlier settlement in the interests of the child
Each case will involve either the issuing of standard paper directions or a preliminary hearing on the telephone or an oral hearing based on criteria drafted by the group of representatives and tribunal staff and members referred to above. This sets out how each type of case will be managed: for example, a complex appeal against Parts 2, 3 and 4 of a statement will probably have an oral directions hearing. In contrast, a straightforward refusal to carry out a statutory assessment will be dealt with by paper directions only - administrative staff will issue standard directions to the parties to deal with the information that needs to be filed and the timetable - in effect, this simply transfers the Secretariat's current written requests for information into formal directions.
If the Chair responsible for case management thinks that an oral hearing is necessary this will be held at about 10 weeks. There will be a degree of flexibility - a Chair may well decide that a particular case should be dealt with in a different way, depending on the circumstances. The intention is to provide initial scrutiny of most cases without the need for the parties to attend an additional hearing. Any special arrangements such as the need for an interpreter, will be made in any case that requires it and no-one will be forced to have a telephone hearing if they do not feel able to address the issues in this way.
Every effort will be made to ensure the process is as user-friendly as possible and that it does not become more 'legalistic'. The increase in paperwork is necessary to make sure both parties follow all the steps correctly and all the right information gets to the Tribunal Panel at the final hearing.
The Administration and Secretariat
The Tribunals Service will continue to provide the Secretariat. However, as part of the rationalisation programme, Procession House, the London HQ, will close in October and the administrative work will move to the Darlington office. The service will remain in Darlington until at least the end of 2009.
Preliminary Hearings
Until 3 November these will continue to be conducted by a 3-member panel with a Chair drawn from a rota. After November Chairs will sit alone as the new rules allow for a single legal member.
Hearings and Venues
Hearings will be conducted in much the same way as they are now.
Any hearing that has started but not been completed before 3rd November will be heard in front of the same tribunal and any directions, orders and time limits imposed before that date will continue in force.
In the medium term there will be a national network of 59 permanent hearing centres and other venues, including a number of provisional sites in Central London. Most of these ‘Multi-jurisdictional Hearing Centres’ (MJHCs) are still at the planning stage.
We have also issued a note on how the new Rule 15 on assessments of children should be interpreted.
Transitional arrangements
We intend to exercise the power to disapply the new Rules to cases currently proceeding. This means:
- ALL cases registered before 3rd November will continue to operate under the old Regulations until a decision is issued or the case is otherwise disposed of.
- NO party can apply for anything contained in the new Rules if the case has already been registered because the new Rules will NOT apply to any case that will be heard after 3rd November.
- If any party asks for an adjournment so that they can take any step contained in the new Rules the application will be referred to one of the judicial leads for determination.
The new Rules will apply to those cases registered on or after 3rd November and we estimate that the earliest these cases will be heard will be mid-March 2009.
There is a new process for appeals from SENDIST decisions to the Upper Tribunal, rather than to the High Court. This process will apply to any case heard after 3rd November or where a decision was not sent out until after 3rd November.
We will be producing an appeal/review flow chart as soon as possible to help you understand the process.
The SENDIST President and judicial leadership
Our current President, Rosemary Hughes, has now retired. and a group of 4 Chairs, known as the Judicial Management Group are running SENDIST until there is a permanent appointment made for the judicial leadership of the Tribunal.
If you wish to make any comments to SENDIST regarding these changes please email us.
