Giving Children and Young People a Right to Appeal
This response is made by the Independent Panel for Special Education Advice, a registered charity providing advice and support for parents of children with special educational needs (SEN) and/or disabilities.
IPSEA was established in 1983 and currently assists over 3,000 parents and carers of children with SEN and disabilities every year, including over 25% of those appealing to the Special Educational Needs and Disability Tribunal (SEND). IPSEA’s opinions are therefore based on evidence from an extensive sample of actual legal cases involving SEN and disability throughout England and Wales.
The Government’s Consultation document seeks views on giving children and young people in England a right to appeal decisions regarding exclusions, special educational needs (assessments and statements) and to make claims of disability discrimination.
Although IPSEA’s function is to advise parents and carers of children and young people with special educational needs and/or disabilities our paramount concern as a charity has always been to serve children’s and young people’s best interests. For this reason we welcome the Government’s proposals to extend the right of children and young people to have a greater say in the processes and decisions which affect them during their years of schooling. We are aware that many parents of excluded children/young people have learning difficulties or other disadvantages which make appeals difficult for them. We believe that creating new legal rights of appeal for children themselves, as opposed to these rights remaining invested wholly in parents/carers, has a role to play in increasing young people’s involvement in their own education. However, there are aspects of the Government’s proposals where we believe that more thinking – and a bolder legal approach - is called for if the changes are to bring real, not just token, improvement and we believe that this is particular true with regard to looked-after children.
There is an existing anomaly in exclusion appeals/claims against maintained schools on the grounds of disability discrimination which could be cured at the same time as this extension of rights: that is, where such appeals/claims are heard. Currently the more serious appeals, those against permanent exclusion, are heard by the inferior independent appeal panels, which have no legally qualified membership and have been criticised by the Local Government Ombudsman and by the Council on Tribunals, among others.1 Claims of disability discrimination in fixed-period exclusions are, however, dealt with by the specialist and legally chaired First-tier Tribunal (SEND) – formerly the Special Educational Needs and Disability Tribunal (SENDIST) and the hearings are seen to be fairer, more expert and more accessible.
The proposals being consulted on may introduce a further anomaly if these jurisdictions stay as they are: children/young people will only have their own right of appeal against permanent exclusions on the grounds of disability discrimination if they are over 16, whereas the proposal is (depending on competency) that children may be able to make an appeal/claim to the First-tier Tribunal (SEND) if they are over 11. The proposals may also result in different forms of support being available: legal aid/help is mentioned for the Tribunal disputes, but not for appeals over permanent exclusion.