| SPOTLIGHT |
The Association of Directors of Children’s Services (ADCS) has described proposals by the Tribunal Procedure Committee to change the rules on the handling of so-called ‘refusal appeals’ as “undesirable” and “inappropriate”.
In its response to a consultation on possible amendments to the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008, the ADCS warned that removing both parties’ rights for an in-person hearing “removes the opportunity to provide additional evidence to support their case”, while removing this only for the local authority sends a “provocative message” to an “already adversarial, broken system” about the rights and intentions of the local authority.
“This is likely to only cause further distrust, making it harder for central government to reform the system into one which is effective and sustainable, where all partners are confident that decisions are being made with children’s best interests at heart,” the ADCS response said.
The Tribunal Procedure Committee’s proposals are limited to appeals against a local authority’s refusal to secure an Education, Health and Care (EHC) needs assessment (“refusal appeals”).
Under the current regulations, Rule 23 of the 2008 HESC Rules establishes the circumstances under which decisions can be made by the Tribunal without a hearing.
Specifically, Rule 23(1)(a) requires both the appellant and the respondent to consent to the case being decided without a hearing before that may happen.
Rule 23 of the 2008 HESC Rules states:
(1) Subject to paragraphs (2) and (3), the Tribunal must hold a hearing before making a decision which disposes of proceedings unless -
(a) each party has consented to the matter being decided without a hearing; and
(b) the Tribunal considers that it is able to decide the matter without the hearing.
(2) This rule does not apply to a decision under Part 5.
(3) The Tribunal may dispose of proceedings without a hearing under rule 8 (striking out a party’s case).
Giving the background to the proposal, the Tribunal Procedure Committee said it had received a request from the Ministry of Justice, Administrative Justice Policy Team, with the support of the Chamber President of HESC and the Deputy Chamber President responsible for SEND appeals.
“The TPC understands that the proposals are intended to ensure that proceedings before the Tribunal are handled quickly and efficiently while ensuring that the system remains accessible and fair,” it said.
The Tribunal Procedure Committee’s first proposal is to remove the application of Rule 23(1)(a) of the 2008 HESC Rules for refusal appeals. This would leave the matter of whether a decision should be made on the papers or at a hearing, in such cases, entirely to judicial discretion.
Its second proposal is to remove the requirement for the respondent in refusal appeals to consent to a decision being made without a hearing. This means that the appellant’s consent for the decision to be made on the papers, alongside the Tribunal’s agreement, would determine whether an appeal could proceed without a hearing.
Currently, appellants ask for decisions to be made on the papers (in their original appeal form) in approximately 90% of refusal appeals. However, local authorities only consent to a decision being made on the papers in approximately 20% of those appeals.
The Tribunal Procedure Committee claimed that by withholding consent, the local authority is able to delay any final outcome, which might involve the use of their resources to comply with the statutory deadline to complete the EHC needs assessment.
It further noted that the appellant succeeds in 96.3% of refusal appeals on at least one ground.
In the consultation paper, the Tribunal Procedure Committee said its preliminary observation was that “in the interests of justice, it is appropriate that the Local Authority ought not to be in a position to delay the case by insisting on a hearing where the applicant wishes the case to be decided on the papers to ensure a swifter outcome.”
Responding to the proposals, the ADCS warned that when both parties agree for the SEND Tribunal decision to be made on the papers, it removes their opportunity to provide additional evidence to support their cases.
The Association said: “For LAs, this puts them at a disadvantage because they are unable to share additional information about their decision making process and means they are less likely to be successful.
“Rather than LAs causing a purposeful delay, as was insinuated in the consultation document, holding a hearing in person ensures that the SEND Tribunal panel can take all of the relevant information into account.”
It added: “If the LA is successful, the child and their family will not have to endure unnecessary, lengthy assessment processes, and that their education setting can focus on providing more effective support to meet their needs as part of ordinarily available provision.”
The ADCS described both of the committee’s proposals as “undesirable” and “inappropriate” and strongly recommended that the process remains as it is.
It added: “If hearings were to only be held on papers, it would make a difficult appeals system even more difficult to navigate and would make the first stage of decision making effectively unnecessary if almost all cases were to proceed to assessment. A more effective way to tackle the backlog in the short to medium term while long term reform gets underway would be to remove requests to assess from the appealable decisions list.”
The ADCS response concluded: “In summary, ADCS members have shared significant concerns about a blanket move to hearing appeals on papers only, this is a complex area of work. Previous and current governments have recognised the very significant challenges in the SEND system and the need for reform. Any changes to the tribunals and appeals process should be part of this wider set of reforms to avoid further unintended consequences.”
Also responding to the proposals, Catriona Moore, Policy Manager at charity IPSEA, said: “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. 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.”
Lottie Winson
