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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Martyn Jones
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Brooke, Annette (Mid-Dorset and North Poole) (LD)
Foster, Michael Jabez (Hastings and Rye) (Lab)
Gardiner, Barry (Brent, North) (Lab)
Gray, Mr. James (North Wiltshire) (Con)
Hesford, Stephen (Wirral, West) (Lab)
Hill, Keith (Streatham) (Lab)
Howell, John (Henley) (Con)
Kramer, Susan (Richmond Park) (LD)
Lucas, Ian (Wrexham) (Lab)
McGuire, Mrs. Anne (Stirling) (Lab)
Malins, Mr. Humfrey (Woking) (Con)
Plaskitt, Mr. James (Warwick and Leamington) (Lab)
Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)
Slaughter, Mr. Andy (Ealing, Acton and Shepherd's Bush) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Eliot Wilson, Committee Clerk
† attended the Committee

Sixth Delegated Legislation Committee

Wednesday 11 March 2009

[Mr. Martyn Jones in the Chair]

Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008

2.30 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): I beg to move,
That the Committee has considered the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I. 2008, No. 2699).
A warm welcome to you, Mr. Jones. It is a pleasure to serve under your chairmanship. We supported the principle of the Tribunals, Courts and Enforcement Act 2007, as we did the Leggatt report that recommended the modernisation of the whole tribunal system. In fact, the various regulatory impact assessments all concluded that it would be far more efficient if the different tribunals covering different Departments were all moved into one unified system. Thus, the different tribunal functions listed under schedule 6 of the 2007 Act were transferred to two new tribunals—the first-tier and the upper tribunal, which were then organised into different chambers.
Obviously, the chambers must have written rules, hence the Tribunal Procedure Committee. It is an absolutely crucial body, because it actually produces the rules. As hon. Members will be aware, schedule 5(28) of the Act requires the committee to consult before it makes rules. I want to know from the Minister what consultation has taken place. There is a mention of it in the explanatory memorandum. However, concerns have been voiced by several different parties, and we are worried, Dr. Jones, that paragraph 24(2) of schedule 7 of the Act disapplies the requirement to consult the administration, justice and tribunal council prior to the making or approving of rules, when the rules are made by the Tribunal Procedure Committee.
We expressed worry about that particular disapplication at the time of the enactment of the Tribunals, Courts and Enforcement Bill, and I should be grateful if the Minister said whether she shares our concern that the provision takes that important council out of the process. I accept that the administration, justice and tribunal council is represented on the committee, but we do not consider that that is necessarily good enough.
Dr. Jones, I come now to one of the important points that do not refer directly to our discussions this afternoon. The Government consulted widely about the new rules of the different chambers. We are pleased to be able to support the Government and know that they listened to the views of the armed forces lobby, which pressed hard to have a separate war pensions and armed forces compensation chamber. Such a request was agreed and, although it not relevant to L.16—this statutory instrument—it is relevant to the explanatory memorandum that accompanies it. Members will note that that refers to the
“Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) (Rules)”.
We were interested in the consultation that took place, and we supported the armed forces lobby in its representations, which have resulted in the Government’s coming up with significant initiatives to satisfy the worries that were expressed to them.
Will the Minister explain what discussions have taken place with the special educational needs lobby? That lobby is obviously concerned about parents of children who might have special learning difficulties, who feel that they are not receiving the support that they need under the education system. Time and again, all of us see parents at our surgeries who say that they are incredibly worried about being let down by their children not receiving enough speech therapy, help or one-to-one assistance.
What representations has the hon. Lady received from the educational psychologist lobby and the speech and language lobby? What representations has she received from the Dyspraxia Foundation and Autism Independent UK, and what was the nature of those representations? Did those organisations express concerns about some of the rules? We are concerned about the way in which the new rules will act against the interests of families. I am referring here to families who do their best to help their children, who may be on the autistic spectrum, and who have to go to a tribunal to get the help that they need. For their sake, the whole tribunal process has to be as user-friendly as possible.
I should like to ask the Minister some specific questions. First, rule 8 involves the tribunal striking out a case in very limited circumstances. Such circumstances are considerably more limited than those under the tribunal’s current powers under regulation 42. I note that rule 5 provides the power for dismissal if there is no reasonable prospect of success. The current power to strike out for want of jurisdiction and on the ground of relocation would make more sense.
Secondly, the current rules provide for costs to be awarded in cases in which there have been wholly unreasonable circumstances or behaviour on the part of an applicant. That may be appropriate to the inquisitorial special educational needs tribunal system, but that new rule has been changed to “unreasonably”. That may lead to many more applications for costs. The current stringent caveat should be put back into this particular rule, so that both parents and local authorities can make timeous concessions in appropriate cases without fear of costs being at issue.
The system works very well at present. Potentially, cost awards could put off parents from bringing claims or local authorities from conceding at a late stage in proceedings. I do not see any reason to change it.
Thirdly, the new additional case management powers in rule 5 are unclear. Concerns have been raised about how they will work given the current timetabling and administration of appeals. Based on the 20-week time scale suggested, the case management conference would be at approximately week 10, and all evidence would have to be filed by week 16, with a hearing in week 18. Receiving the paperwork only two weeks before the hearing is likely to cause immense difficulties to parents and will inevitably cause more adjournments to seek further information and evidence. That is inefficient and unfair on the families involved. Furthermore, given the potential need to obtain permission before supplying evidence, it may well be extremely difficult to obtain and file such evidence within the relatively tight time scale between the case management conference and the hearing—if the timetable is aiming for a resolution within 20 weeks.
Fourthly, introducing a formal case management stage with a hearing, even by telephone, will also lead to more complexity and a further layer of legal complications with significant cost implications if it is properly administered.
Fifthly, rule 21(1) introduces new rules about the provision of expert evidence. In particular, it introduces a concept of the provision of a single joint expert. There will be a number of difficulties in implementing the new provision. It is unlikely in most special educational needs and disability tribunal appeals that the parties would wish to have a single joint expert. Moreover, there are likely to be major disputes about who would be a suitable joint expert. Unlike in normal civil litigation, in which both sides obtain evidence from independent experts, local authorities in such tribunals will normally obtain expert evidence from their own employees. I submit to the Committee that parents will not be very happy if they have to appoint a local authority expert who is an employee of the very council that is not giving them the help that they need, such as one-to-one assistance for their child at school. In such circumstances, it will not matter how good that expert is.
Sixthly, the current relaxation of the two-witness rule, as envisaged by rule 21(1)(d) of the draft rules, will make hearings lengthier and more complicated. It has been suggested that the number of witnesses each party may call should be limited to three. In specific cases the case management conference process can consider the need for additional witnesses, but we feel that that might militate against families. For example, if the local authority wants to call several witnesses, the current procedure is that they will call the same number of witnesses, and I think that we will end up with inequality of arms, as we lawyers sometimes like to describe it.
We have heard substantial misgivings about the new review appeal procedure, rule 33, which I believe is unnecessarily lengthy and confusing. There is no need for a combined right of review/appeal, which could involve the parent or authority having to go for a review and then obtain permission to appeal—potentially to both the lower and upper tribunal—and then a substantive appeal. That could take much longer than either the current review or appeal procedures. It must be remembered that appeals to the administrative court can be heard within a very short time. In fact, one of the plus points of how the current system of administrative courts works is that, despite the fact that the tribunals are spread across different Departments and arguably incur additional costs and extra bureaucracy, the courts hear those appeals very quickly indeed.
What will the position be with regard to public funding, as it is not clear whether such funding will continue for appeals to the upper tribunal? I hope that the Minister will look at that. We support the principle behind the changes that have been made, and it would be wholly inappropriate for me to do anything other than support the Government, because the official Opposition supported the Tribunals, Courts and Enforcement Bill as it went through Parliament and made many constructive suggestions in Committee that led to changes to it. Several additional changes were made in the other place, and we ended up with a better Act. That Act, which has led to a once in a generation, fundamental reform of the tribunal system, made a lot of sense. The main part of the judicial system with which the majority of our constituents will probably have to interface, unless they happen to have run up fines for motoring offences or do not pay their bills, is the tribunal system. Making it friendlier, having professional judges within the chambers who can move between different chambers and producing that flexibility makes a great deal of sense, so we supported that.
However, it is important that the rules be kept as simple as possible and, above all else, allow for equality of arms, because many of the families and individuals appearing before these tribunals, particularly the special educational needs tribunals, will be applicants in person. We submit that those rules are weighed too heavily against those families and our constituents, and that is why we were keen to ensure that this was debated properly. That is why we are not prepared to support the rules as they stand, and I look forward to what the Minister will say. We will be constructive and support the principle behind the 2007 Act, and it is important to put on the record that most of the rules and changes that have been made have been widely welcomed. These rules have not been welcomed, and I certainly urge the Minister to do all she can to answer the constructive criticisms and points we have made.
The Chairman: Mr. Bellingham kindly awarded me a doctorate during his speech, but I am actually just Mr. Jones.
2.45 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): It is a delight to serve under your chairmanship, Mr. Jones. You should have been awarded a doctorate. Feel free to have one from the Committee.
The hon. Member for North-West Norfolk has made an important point on behalf of the parents of children with special educational needs who have concerns about the changes in the tribunal system. I hope that I can reassure both him and them that the changes we have made will benefit rather than disadvantage them. I am grateful that he said on more than one occasion that he and his party support the principle of the changes in the structure of the tribunal system. Tribunals play a critical role in ensuring that the decisions made by Government and other public bodies, which directly affect the interests of people, are legal, fair and appropriate. I doubt that any of us can think of a case more important than that of a child with special educational needs.
The hon. Gentleman felt that we had not recognised the particular requirements of parents and children with special educational needs. Parents who are frustrated and anxious often quite rightly use the tribunal system to achieve the best for their already disadvantaged child. I will try to address the specific concerns that he has raised. The Committee will be pleased to know that I will not give a long lecture on the reforms to the tribunal system. However, it is important to note that the tribunals are part of a structured reform, which means that they are guaranteed their independence from the departments and other public bodies that make the decisions with which they have to deal. It is important to emphasise that. People should know that the tribunal is not based in the department about which they are complaining .
Our objective has not been about saving money or making things easier for the Government, but genuinely improving the quality of service and justice for the citizen. I think that all members of the Committee will agree with that. The tribunal dealing with parents and children with special educational needs or disabilities is an important and sensitive one. Children need to be able to get the support that they require at the right time and in the right environment. If a parent thinks that a local authority is not meeting that need, they are right to look to the tribunal to make it do so.
Tribunals are meant to provide a relatively informal, inexpensive and easy means of resolving disputes. It is important to ensure that the rules are easy to understand and that the pathways through the system are easy for parents to use. The rules are made by the Tribunal Procedure Committee, which is an independent body established under the Tribunals, Courts and Enforcement Act 2007. It is chaired by a Lord Justice of Appeal—Lord Justice Elias—and includes representatives from a number of organisations, including the Administrative Justice and Tribunals Council, the Bar Pro Bono Unit and the Free Representation Unit. The rules are made with the agreement of the Lord Chancellor and laid before Parliament.
The rules were drafted with the full involvement of the special educational needs and disability tribunal’s judiciary and members, and were subject to a six-week public consultation between May and July last year. They were also considered by representatives from various local education authorities and by parent representative groups, such as the National Association of Independent Schools, the Independent Panel for Special Education Advice and the Special Educational Consortium. All of their feedback—the responses to the public consultation process and letters sent to me, or other Members of Parliament—were taken into account by the Tribunals Procedure Committee when it drafted the rules, and by the SENDIST judiciary, when it drafted the accompanying practice directions.
To meet the needs of parents and children in the best possible way, the rules provide the tribunal with powers to hear cases promptly and justly, while ensuring that it can continue to be accessible and informal. One of the changes that has given rise to some concern is the new case management system. Some have suggested that it will make the tribunal more complex and more legalistic, and that therefore it will be more difficult for parents to navigate the system. However, although case management is a new feature for SENDIST, it is common in every other jurisdiction. Representatives from voluntary sector groups have provided advice and assistance to parents and have had an input into the design of the case management process so that it will ensure that the final hearing can proceed without cancellation, delay or adjournment and that the matter can be determined promptly, in the best interests of the child. I know from my constituency casework how frustrated parents get by the length of time it takes either to try to get the local authority to hear what they are saying to it, or to go through the tribunal system and get a decision. More than anything else, once they are in the system, parents want that decision to be made as quickly and as fairly as possible.
Annette Brooke (Mid-Dorset and North Poole) (LD): I thank the Minister for explaining the process of consultation, although a large number of concerns remain. There has been reference to one case being used as a pilot. Will the Minister tell us about the outcome of the pilot and any other pilots that are being undertaken?
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