IPSEA Legal Resources Portal SEND Tribunal rules and procedure The Special Educational Needs and Disability Tribunal: a refresher for existing volunteers Existing volunteers should remember to check the Running a Case Guide and Checklist – this has been updated several times and is always worth checking to ensure you don’t miss out any vital steps in preparing for your case. Overview The Special Educational Needs and Disability Tribunal (“SEND Tribunal”) is created by statute. Less formal than typical courts, Tribunals should be accessible and parent friendly. They are presided over by panel members who are expert in the subject matter or law with which the tribunal is concerned. Tips for successful preparation In your preparation you will have identified the key issues for the parents – they may not necessarily be the key issues the Tribunal panel themselves would immediately focus on. You will want to understand the special educational needs/ disability so that you are confident using the relevant terminology. Break the case down to make sure that you understand: What is the relevant legal test being applied? What is your evidence on a particular issue – positive & negative? What, therefore, is your legal authority on the point? Who has the burden of proof? With your key issues in mind, you should prepare the following: Who is who – helps to have a list of parties including details Is the bundle in good shape – index it your own way Know where to find your key evidence in reports May help to prepare a chronology Now hold up a mirror to the case: What will the LA’s position be on the key issues? What are the weaknesses in your case? Is there anything you can do about them before the hearing? What will you do if you do not have the evidence? How much law? Preparing arguments and witnesses You will be there as a supporter for the parents/YP. You will not be expected to make sophisticated legal arguments or to prepare a skeleton argument, however, you will want to have understood the legal issues and prepared some arguments. It would be advisable to take to the hearing your legal materials and the David Wolfe’s Noddy Guide which is a very useful source of case law (make sure you have the most up to date version!). You will want to make sure that you prepare the parent/YP’s witnesses (this does not mean coach them in what to say!) so they understand the process and understand what will be expected of them. You will want to emphasise that they should only give evidence in their area of expertise. Prepare them for difficult questions and weaknesses in their evidence. Consider also any witnesses being put forward by the LA in particular can their evidence be challenged or undermined? What to expect at the hearing Although the SEND Tribunal is not as formal as many court hearings, there are certain formalities which should be adhered to. Panel members should be referred to as Ma’am or Sir and they should not be interrupted when speaking. A party may be represented by anybody regardless of qualifications. You should simply refer to yourself as an IPSEA volunteer. Tribunals are not bound by the strict rules of evidence which apply in court. They are inquisitorial which requires the tribunal to be actively involved in identifying the issues and in obtaining relevant evidence. The Tribunal members can (and will!) also ask their own questions of witnesses. The Tribunal is chaired by a judge, either a barrister or a solicitor, who will have had training on SEN and disability law. Generally the judge will be joined by a single specialist panel member. In cases where a Judge has determined the issues are complex (including cases under the National Trial, concerning health and/or social care), the panel must include two specialist members. The Panel will have read the bundle and have spent time reviewing the case together before the parties arrive. They will have identified the key issues and decided which panel member is going to ask the questions about which issue. It is not appropriate to ‘rubbish’ what the LA has to offer or be personal about the LA’s witnesses. Do not interrupt witnesses when they are giving evidence. The panel will give you your turn. Where possible try to work from the EHC plan if there is one. For parents/young people, the Tribunal is usually difficult and emotional. Your role will be to support them through this challenging process. When supporting young people be aware that the Tribunal will want to talk to/have the views of the young person. Prepare them to be asked general questions by the panel such as their typical day, likes and dislikes, views about proposed provision etc. Listening Listen to the Panel, the witnesses and to the parents. Remember that the Tribunal Panel will ask questions so you should let them take the lead. Be ready to fill in the gaps if the Panel does not raise the issues you want discussed but give them the chance to deal with them first which hopefully they will. Take notes while others are talking. Record helpful things to mention when you sum up, including points which are potentially damaging to your case which you need to counteract. Summing up If there is time to sum up, this can be a powerful tool, but we advise you to be short and sweet. Do not overdo it! Listen to the LA summing up. If you need to add anything, then do, but do not get distracted from your key issues. It can be helpful to remind the panel of the key legal tests (especially if the LA is applying the wrong test!) and the burden of proof. Do not be tempted to give evidence at this point. Summing up should be about making submissions on the evidence which has already been heard. But do remind the Tribunal of helpful points or any inconsistencies which help your case - e.g. what was it about the provision in Section F which the LA school cannot provide? Remember, though the Tribunal is a specialist body with expert knowledge. If at the end of the hearing (or any time during the hearing) the LA seeks to provide written submissions or any similarly entitled document to the Tribunal which you have not seen, this would be unfair. We have seen examples of such document including information/evidence that was not available at the hearing. Always ask to have a copy. If it contains new information/evidence, consider making representations to the Tribunal that to admit such a document would be incompatible with its overriding objective of acting ‘fairly and justly’. If it simply sets out the LA’s arguments, you could consider asking for an opportunity to put in your own written submissions by (for example) one week after the hearing, so that both parties have had the opportunity to do so. Finally, always remember to check the Running a Case Guide and Checklist in case there’s anything you’ve missed.