My blog about tribunals
Updated: Nov 11, 2019
Today I am writing a blog about tribunals. If you don’t know, a tribunal is when people go to court because parents and the local authority don’t agree about what school or support a child with SEND needs, so a judge has to decide.
I am writing this blog because we have tribunal soon. We are arguing because my Local Authority Surrey did not recommend a school for me, so my Mum has to go to tribunal. Now I have found a school that I love and that really wants me to go there, but Surrey STILL will not agree. We have been waiting since April for this tribunal, which is a LONG TIME when you are not at school and desperately want to go back. At the tribunal, I am excited to tell the judge what I think! This is very important to me because no-one from Surrey who is working on helping me has ever actually met me. A Surrey educational psychologist and a paediatrician even wrote reports about me, but they never met me! Even though it is really scary, I want to go to court to meet the judge because I don’t think it is fair for people to decide about my education without even meeting me properly. How can they know what I am like or what I need?
I have blogged before about how bad schools and Surrey are at supporting children with SEND, but tribunals are a problem too! There are so many of them that the court system is breaking too. This means that lots of tribunals are being postponed at the last minute because there are not enough judges. In Surrey, I know of lots that have been postponed recently. On 31 October, an expert in SEND law, Ed Duff, posted on Twitter “I originally had 8 hearings listed for October. Not one of them happened. All cancelled due to lack of Judges”. So I also know that it’s not just in Surrey that this is a problem.
I wrote to the Chief Executive of Her Majesty’s Courts and Tribunals Service, and the Minister in charge of this bit, Chris Philp MP, to ask them some questions about tribunals. Here are their answers.
1. I know that there is a long wait for tribunals. Why is this? Is it because there aren’t enough judges? What is anyone doing about this?
More than eight out of 10 special educational needs and disability (SEND) tribunal cases are heard within 22 weeks of receiving an appeal, which is the target timescale for us to issue a decision. [note from Jenna: that is nearly half a year! That is a really long time to wait for support when you are my age!]
There has, however, been a big rise in the number of appeals made over the last few years. We need more judges and panel members to deal with the extra work. A SEND tribunal panel is made up of a judge and specialists (people who are experts in Children and Young People with Special Educational Needs).
Choosing and training new judges and members is an ongoing process. New recruits must be properly trained to make sure that when they hear appeals they apply the correct law and make good decisions. Selecting and training people takes around a year, from advertising a vacancy to having someone ready to hear an appeal. [note from Jenna: WOW! This problem is not going to go away quickly!]
2. How do tribunals hear from children? I want to go to mine, so I can tell the judge what I’m like and what I need to do well at school. What will it be like? And lots of children can’t go to their own tribunal, so how does the judge hear their voices?
Judges and panel members welcome the views of children involved in SEND appeals. It helps them to understand the impact of the decisions they make.
The law says that the local authority must present a child’s views to the SEND tribunal in every appeal and children are also allowed to attend their hearings and to speak to the tribunal panel directly. The tribunal will do its best to accept evidence in whichever way is best for the child, including evidence by video or phone. Some children write down or draw what they want to tell the tribunal, others will let an adult write it for them.
Children can come and meet the tribunal panel before the hearing starts. They usually come with a parent and, so that it is fair, someone from the local authority will be there as well.
3. As well as taking a long time, tribunals are really expensive. Solicitors say they can cost families about £15,000 if you use solicitors and barristers and need to get special reports to argue against the council. But the Education Select Committee report says that families win their cases in the First Tier Tribunal 89% of the time. What is the point of having a tribunal if families almost always win? How can we get better at agreeing things before a tribunal?
The SEND tribunal is free to use. Unlike some other tribunals, there is no charge for bringing an appeal. Families do not have to be represented by a legal professional and most are not.
It is the role of the judge to know the law and to ensure that the decision made by the panel uses the right law. The tribunal will provide families with clear instructions about what they need to do. There are also parent support groups that may be able to provide free guidance and advice. [note from Jenna: I think that this is a problem because it is so scary and complicated to go to court that a lot of families might not want to or be able to do it, even if they are not getting the right support for their child. I don’t think that this process is fair for all children]
One way of trying to get the parties to sort out their differences without bringing an appeal is mediation. Most families don’t try mediation even though it doesn’t usually cost anything and could be a lot quicker than bringing an appeal.
Even when an appeal has been made, the Tribunal expects parents and local authorities to continue speaking with each other while the hearing is being prepared to see if they can reach an agreement before the Tribunal makes an order. [note from Jenna: I hope that Surrey reads this because they are really bad at speaking to parents and trying to sort things out!]
Families can also apply for legal aid (help with the cost of legal advice or getting someone to speak or negotiate for them), which is subject to a ‘means and merits’ test to see if they qualify. Legal aid, and assessment about who can have it, is administered independently of the tribunal by people who are not involved in the tribunal case in any way.
On your point about the number of cases coming to tribunal that are won by families, Justice Minister Chris Philp MP will follow this up with his colleagues at the Department for Education (which is responsible for SEND policy and is monitored by the Education Select Committee). [note from Jenna: this is a really important point that nobody seems to have a plan for!]
4. I also know that lots of tribunals are cancelled because the local authority isn’t organised enough to get everything ready in time. What is their punishment for this? How is the tribunal helping to stop this happen?
We don’t cancel hearings if a local authority says it is not ready. The hearing will always go ahead as long as: the local authority has been given enough time to prepare; and if there is no good reason for the hearing to be delayed (for example a witness is not available on the day, but had provided written submissions).
To help us keep things on track we use a case management system (a computer system where we keep all the information relating to each SEND case). The judge can use the case management system to give directions to all the parties involved in a hearing to ensure that the case is ready.
The law does not allow the tribunal to punish the local authority but the tribunal can - and does – sanction the local authority and can stop them taking part in the appeal. If the tribunal thinks that the local authority has been unreasonable, it can make it pay the cost of any work done by those making the appeal.
I was interested to read these answers because they don’t really help me to understand how anyone is making things better for children and families right now. It seems like it is going to take a long time (a year!!) to get more judges. In the meantime, more tribunals will be delayed because of this which means that more children won’t get the right support – or, like me, will have to wait AGES for school. And there are no punishments for local authorities who delay tribunals either. I think that some serious changes are needed to the tribunal system so that children get the right support more quickly.