5 November 2024

It isn’t news that waiting times for SEND Tribunal hearings are at an all-time high. As the number of appeals has increased six-fold in the last ten years, the length of time that families wait for a decision has become longer and longer. 

Appeals registered in March 2024 are currently being listed for a hearing in February 2025 – nearly a whole year in which the child or young person concerned isn’t receiving the special educational provision they need. 

To address this, the Tribunal Procedure Committee (the body responsible for making the rules by which the SEND Tribunal operates) is currently consulting on a change in the way that decisions are made in appeals against a local authority’s refusal to carry out an Education, Health and Care (EHC) needs assessment. 

Refusal to assess a child or young person’s needs 

At present, if a parent or young person appeals against a local authority’s refusal to assess a child or young person’s needs, they are asked on the appeal form whether they agree to a decision being made on the basis of the written information provided in the papers that have been submitted to the Tribunal. (This is known as a decision “on the papers”.) The local authority is asked the same question. 

If either the person appealing or the local authority doesn’t want the decision to be made based on written evidence alone, the case will be listed for a hearing. This means an oral hearing, which may be in person or by video link or telephone, when evidence is presented orally and questions may be asked by the Tribunal panel. 

That’s the current procedure set out in Rule 23 of the Tribunal Procedure Rules. But given that it takes half the time to decide on the papers as it does to go all the way to a hearing, the Ministry of Justice believes that appeals against a refusal to carry out a needs assessment could be speeded up by allowing the Tribunal to make more decisions based on the papers alone. 

Why change the procedure for this type of appeal, specifically? Two reasons. Because it’s a clear and straightforward decision – either assess or don’t assess. And because there’s plenty of evidence that local authorities frequently fail to apply the relevant legal test for deciding whether to carry out an assessment of a child or young person’s needs. Written evidence provided by both sides in their submissions to the Tribunal should provide enough information to enable a Tribunal judge to make a decision. 

Making decisions more quickly – while still being fair 

The aim is to decide appeals more quickly, so that the child or young person concerned can receive the educational support they need without further avoidable delay. But at the same time, they want the appeals system to remain accessible and fair. 

Our view at IPSEA is that the priority must be to uphold children and young people’s rights – including the right for their case to be discussed at an oral hearing. 

In our response to the consultation, we have said that the overriding aim should be to ensure that appeals are heard and decided fairly, and that the Tribunal Procedure Committee should keep in mind the imbalance of power that exists between a parent with no legal representation versus a public body. 

Two possible options are presented in the consultation document. 

Option one is that a Tribunal judge alone would decide whether to decide a case on the papers or at a hearing, and neither the person appealing nor the local authority would be asked for their consent. 

Option two is that the person bringing the appeal – that is, the parent or young person – could decide whether to rely on the papers or go to a hearing, and the local authority responding to the appeal would not have to give their consent. 

We consider option two to be the only acceptable option. This would protect parents’ and young people’s right to an oral hearing, a right that we consider to be essential. 

We know from our experience of advising families and supporting them through Tribunal appeals that there will always be parents who need or want to make their case orally at a hearing. In our view, there shouldn’t be any barriers to this. Some parents will struggle to manage the papers, particularly if they don’t have legal representation – which many parents don’t. 

Our concern is that allowing cases to be decided on the papers alone without the parent or young person agreeing to this would have the effect of excluding parents who struggle with reading or writing, or have SEN themselves, or face other challenges with engaging with proceedings. 

The starting point must remain that parents and young people have a right to an oral hearing unless they actively consent to their appeal being decided without one. 

If you have thoughts on this that you would like the Tribunal Procedure Committee to consider, you are invited to complete a short questionnaire. The consultation is open until 5 December 2024. 

 

About the author

Catriona is responsible for IPSEA’s work in bringing about change by influencing the development of SEND policy nationally. Her background is in public policy and communications, and she has worked for a number of charities and public sector organisations, as well as in Parliament. In the past she has served as an elected councillor in a London borough, a special school governor and a charity trustee. She has personal experience of having a disabled child. In her spare time, she enjoys walking, reading, going to the theatre and being by the sea.

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