Memorandum submitted by the Special Educational
Needs and Disability Tribunal
INTRODUCTION
The Committee has invited the Tribunal to provide
a memorandum on matters arising in its recent discussions with
Lord Adonis, in particular the costs that parents may incur in
using the Tribunal.
TRIBUNAL AIMS
SENDIST aims to provide an accessible, supportive
and helpful service to parents of children with special educational
needs.
The tribunal regulations state explicitly that
we should seek, as far as it seems appropriate, to avoid formality
in our proceedings. Inevitably a legal process involves some complexity,
but we aim to guide parents through each stage of the process.
The Secretariat provides full and clear written guidance, and
deals with many telephone enquiries where parents need clarification.
The service receives positive feedback from
parents. In a recent survey 91% of parents responding rated our
literature as good or very good. Satisfaction with the telephone
service (88%) and support at hearings (97%) was also high.
ACCESSIBILITY
There are no direct costs in appealing to the
Tribunal. The service is free and we reimburse parents and their
witnesses for travel expenses. Witnesses can also receive a standard
allowance towards loss of earnings.
We recognise that many parents will need help
making and pursuing an appeal to SENDIST. A number of voluntary
organisations provide advice which may range from informal advice
on the telephone to representation at hearings. Some law firms
also provide support pro bono. Details of some organisations that
can help parents appear in our appeal booklet.
The Tribunal provides information in a range
of accessible formats. We can provide Braille, tape and large
print versions of information, and send all parents a video designed
to give them an idea of what a tribunal hearing will be like.
The video seeks to dispel any notion that parents are coming to
a court, and reassure them that the panel will guide them through
the process.
WHO APPEALS
TO SENDIST?
There are no data on the socio-economic backgrounds
of parents appealing to SENDIST. In our annual report we include,
for the last two years, a breakdown of appeals by LEA.
We have not undertaken any analysis to look
at any correlation between the socio-economic make-up of LEA populations
and the level of appeals. Appeal levels tend to be highest in
the Home Counties. However, if one looks at LEAs with relatively
high and relatively low levels of appeals, one cannot see any
clear link to economic circumstances.
| |
| |
| LEAs attracting most appeals, 2004-05
| LEAs attracting fewest appeals, 2004-05
|
LEA | Appeals per
10,000 of school
population
|
LEA | Appeals per
10,000 of school
population
|
| |
| |
| Lewisham | 21.76 | Blackburn/Darwen
| 0.79 |
| Lambeth | 20.38 | Doncaster
| 0.79 |
| Hackney | 15.61 | Newcastle
| 0.79 |
| Richmond | 14.37 | Nottingham
| 0.74 |
| Croydon | 12.55 | Coventry
| 0.40 |
| Southwark | 12.46 | Warrington
| 0.31 |
| Wandsworth | 11.78 | City of London
| 0.00 |
| Bromley | 11.27 | Hartlepool
| 0.00 |
| Kingston | 11.14 | Havering
| 0.00 |
| City of Bristol | 10.72 |
Isles of Scilly | 0.00 |
| | Redcar/Cleveland
| 0.00 |
| | Rutland
| 0.00 |
| |
| |
| |
| |
The Tribunal can only report the number of appeals against
LEAs. Parents' own educational backgrounds and their confidence
with administrative systems may affect their ability to access
the tribunal. However, LEAs are bound legally to inform parents
whenever the right to appeal arises with details of how to make
such an appeal. A variety of other factors may help to explain
the very different levels of appeals across LEAs. These may include
the nature and perceived effectiveness of local provision, local
policies, the relationships between authorities and schools, the
capacity and capability of special educational needs departments,
the transparency of funding arrangements, and the quality of relationships
between local authority officers, parents and other local stakeholders.
REPRESENTATION
The Tribunal asks all parties to provide details of any representatives
and witnesses and we collate data for the annual report. According
to our records 20% of parents whose appeals we heard in 2004-05
had the help of a legal representative throughout the process.
At hearings, 25% had a legal representative and a further 23%
had a non-legal representative, usually a person working for a
voluntary organisation supporting parents.
We have no data on the costs parents incurred engaging either
legal or non-legal representatives, nor do we have any analysis
correlating the use of representatives with the distribution of
parental appeals across LEAs or across appeal types. Recent research
published by the DCA Research Unit (Tribunals for Diverse Users,
January 2006) found that among parents they interviewed legal
representation was most common where the appeal concerned the
contents of a statement. It might be reasonable to assume that
the more at stake in the appeal, the more likely parents will
be to engage a lawyer.
The quality and usefulness of legal representation varies.
Where the appeal turns on difficult legal argument it may particularly
assist parents. A representative may also help negotiate concessions
from local authorities and isolate points of dispute before a
hearing. Some parents need help articulating their case and identifying
appropriate questions to ask. However, sometimes the involvement
of legal representatives can make hearings more adversarial than
necessary, and may tend to delay or prolong proceedings.
SENDIST panels will vary their approach to hearings depending
on who is taking part. If parents are unrepresented and unfamiliar
with the relevant law, good panels can compensate with patient
questioning, clear summaries and frequent checks that points have
been fully covered and understood. The necessary skills feature
heavily in our training of chairs and members.
When questioning Lord Adonis a member of the Committee cited
figures on the success rates of represented and unrepresented
parents. Like the Minister, we do not recognise those data. However,
the figures quoted can only have been based on a small and unrepresentative
sample of cases.
The Tribunal has no data on how representation may affect
success rates. However, the Research to which we refer above conducted
thorough statistical analysis on over 1,100 cases and concluded
(page 278) that "whether or not an applicant was represented
had no impact upon outcome". Although represented parents
were more likely to be successful, the differences were not found
to be statistically significant.
REPORTS
Apart from engaging representatives the other significant
costs which parents may incur arise from commissioning expert
reports to counter the assessments of professionals advising the
LEA. We do not collect data on how many parents commission such
work or the level of costs they incur although a single report
is likely to cost several hundred pounds. Even if it is not a
necessary part of the tribunal process for parents to commission
such reports, we would have to recognise that there are cases
where an alternative professional opinion will be necessary to
sway the Tribunal against the advice of the relevant LEA professional,
especially if there significant amounts of public money at stake.
It is for others to consider whether or not parents should
receive any assistance if they decide to commission professional
reports. It is not easy to see how the Tribunal itself might help.
OUTCOME STATISTICS
Our annual report records the outcome of special educational
needs resolved in 2004-05. Nearly two thirds of all appeals were
either conceded by LEAs or withdrawn by parents, and we know that
the great majority of withdrawals arise because parents are satisfied
with LEAs' response to their appeals. A majority of the remaining
35% of appeals resolved by tribunals were at least partly upheld.
In 2004-05 the Tribunal upheld 58% of appeals against LEA
refusals to carry out statutory assessments. In cases involving
the contents of statements 87% of appeals were upheld at least
in part—that is, the resulting statements included some
if not all of the provision parents were seeking. Given that only
a quarter of parents bring a lawyer to hearings, the high proportion
of appeals upheld or settled in advance would seem to contradict
any impression the Committee may have gained that parents have
little chance of success without representation,
CONCLUSION
It is important to dispel myths and encourage people to use
SENDIST. As a legal process it will inevitably involve some complexity,
but efforts continue to make the service genuinely accessible
and provide support unrepresented parents. We hope that this memorandum
is helpful to the Committee.
May 2006
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