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Bridget Prentice: We found that it was not sensible to try to run pilots, and I will come back to that in a moment.
The case management system was designed to help parents who could, quite understandably, be confused and a bit fearful when they were preparing their cases. They are often people who have not been involved with the legal system in any way, shape or form. The case management system is designed to help them focus on the issues that need to be determined by the tribunal from the outset, so that they are given guidance on the kind of questions that they need to ask both of themselves and of the local authority, or whatever the public body might be. The tribunal will then identify what information has to be provided and at what time. In that way, it will assist the unrepresented parents in understanding what they need to do in order to make their case.
The hon. Gentleman asked about the review and permission procedure. The rules allow the tribunal to treat both the review and permission application as one application. The procedure then ensures that where there is an obvious error, the first-tier tribunal can deal with that without the need for the upper tribunal, or a higher court, first to grant permission or deal with the application itself. Therefore, rather than add delay, that should make the onward appeals process quicker in many cases.
Case management is also undertaken by the means most suited to the complexity of the case and the needs and wishes of the parent. It can take place either on paper, by telephone or in person at a hearing. It is probably impossible to design a system for resolving disputes that is entirely stress-free for those involved, but where the case management hearing is required, the tribunal has the tools to adopt the least intimidating method for those involved.
It has also been said that the system will mean that parents will increasingly require legal representation, but that is not the case. Many parents set a great deal of store on the outcome of their appeals, and some may sometimes feel that they have not done all that they could have if they have not obtained professional legal advice. Others may genuinely require additional legal assistance and need someone else to speak for them. For many parents, there are a number of excellent voluntary organisations that provide help, some of which have been party to helping us put the rules together. However, our tribunal judges are also skilled in dealing with unrepresented parents, and expect that to be the norm. Indeed, over the past few years, we have seen a drop in the number of parents who have had legal representation; instead, they have advocated on their own behalf.
The hon. Gentleman also asked about the joint appointment of a single expert witness. Under the rules, if there is a suggestion of appointing an expert witness—an educational psychologist or a speech and language therapist—to assess the child in and outside the school environment, the tribunal will only consider that necessary in cases where there has not been an adequate, independent assessment previously. The appointment of the single expert witness will prevent the situation from arising whereby the tribunal has to decide between conflicting evidence from separate experts engaged by each side. Such a witness has to be jointly appointed by the parties—in other words, they have to agree who the expert is to be. The special educational needs and disability tribunal has stated publicly, in newsletters and service user training, that that provision will never be used to impose a joint expert on any party; the consent of both parties is required, as is agreement on how the joint expert will be paid for.
Annette Brooke: My concern is about the cost of the joint expert. Assuming that the matter was agreed jointly, many parents with disabled children would be unable to find the funds. Will the Minister tell us a little more how about she anticipates the cost will be split between parents and authorities?
Bridget Prentice: I will come to the issue of costs in a moment. Before I forget, I will respond to the issue of piloting. As I said, it was not possible to pilot the rules before the creation of the new tribunal. However, with the consent of the parties in the case in October, to which the hon. Lady referred, we used it as a pilot for the new case management system. If it is some reassurance to the Committee, the tribunal will keep the operation of that system under review, and discuss it and its process regularly with user groups. I hope that that answers the particular question.
The tribunal will want to decide cases in the best interests of the child and will ensure that all the evidence is obtained in establishing the child’s needs and their appropriate provision regardless of their presentation. It is part of the judge’s role, in a tribunal, to ensure that the unrepresented appellant can still present their case.
The hon. Gentleman asked about representations from different special educational needs lobbies. The Secretary of State for Children, Schools and Families met the group SOS!SEN, along with, I think, the hon. Member for Twickenham (Dr. Cable) last December to discuss the rules. My right hon. Friend the Secretary of State also asked Brian Lamb, the chair of the Special Educational Consortium, who is leading the inquiry into parental confidence in the system, to look at the issues that parents had raised at that meeting. He will report back shortly.
Susan Kramer (Richmond Park) (LD): On that meeting in December and the fact that the many questions raised then will be answered in a report, I am concerned that those issues and those responses will not necessarily be incorporated into the decision that is being made today. Is there any way that the Minister can give us an assurance that they will be incorporated?
Bridget Prentice: To be perfectly honest, I am not sure that I can give the hon. Lady that assurance on decisions that are already being made. The whole issue is under review and we will look very carefully at what Brian Lamb has to say, but I will have to think about whether there can be a process whereby there is retrospective reflection on that meeting. I am not convinced that that is generally good law. None the less, I will think about the question and come back to her with a response.
The draft rules were subject to a six-week public consultation. That was incorporated into a second draft and those revised rules were again made available and sent to all the respondents and stakeholder organisations. The responses to that second consultation were then collated and discussed by the Tribunal Procedure Committee. From June 2008, the judiciary ran a user group, with key stakeholders, to consider the rules, the practice directions and the case management processes. A meeting was also held with the National Association of Independent Schools and Non-Maintained Special Schools and the Independent Panel for Special Education Advice. Furthermore, the majority of representations from parents were incorporated into the final rules and practice directions. Therefore, to be fair to us on this occasion, we have made a fairly comprehensive attempt at bringing in as many people as possible, to ensure that the rules made sense.
The hon. Gentleman also asked about paragraph 24(2) of schedule 7. Paragraph 21 of schedule 5 to the 2007 Act requires the AJTC to be represented on the tribunal procedure committee. Therefore, we feel that that is sufficient to ensure that it has input. Indeed, the member who represents the AJTC on the Tribunal Procedure Committee had a key part in the rule discussions when they were taking place.
The hon. Gentleman also asked about the change from “unreasonable behaviour” to “wholly unreasonable behaviour”. It was not easy to find the same wording for the different jurisdictions when we brought them together and had to apply that wording to one chamber. The principle basically remains that if a party behaves unreasonably, the costs can be awarded against them. We do not think that that change in language is particularly substantive. The principle is as it has always been.
Regarding legal aid, support and representation, legal aid is still available for onward appeals. We have already amended the legal aid regulations to take that into account.
I am aware of the concerns about the late publication of the practice directions and the lack of information that was available to parents whose cases were started under the old arrangements. I will not pretend that this has been a smooth transition or that there were not things that we could have done better. However, notwithstanding those problems, most parents groups were in favour of us going ahead with the change when we did. Since November, the tribunal judiciary has provided training to more than 1,200 users and user representatives in London, Birmingham, Manchester, Newcastle and Bristol. We have increased the amount of information about the new arrangements on the tribunal website. User groups have continued to meet to discuss the changes.
There were teething problems with the design of some of the forms and with the training of administrative staff, which had to be ironed out. Those are being addressed in consultation with the special user group forum. As I said, we will continue to review the processes and rules in consultation with stakeholders, including parent representative bodies, and consider any further action that should be taken. The Tribunal Procedure Committee will review the operation of the rules from time to time and make amendments when necessary.
If a tribunal orders a joint expert to be appointed, I think that it will consider the circumstances of both parties. As I said, it will not do that without the agreement of both parties. The tribunal will not impose a financial burden by requesting a party to pay an unreasonable amount towards the costs. It is not for me to say exactly how that will be done or what the circumstances might be because they will vary from party to party. There is no such thing as a typical case in special educational needs tribunals. A joint expert is an alternative to each party appointing their own expert. The use of a joint expert will prevent the battle of experts that increases the costs for the parties.
Susan Kramer: May I press the Minister on the funding of the joint expert? Will there be guidance or criteria to ensure that decisions on how expenses are allocated are consistent? Parents need some certainty before they enter the process about the sort of financial costs they might incur.
Bridget Prentice: I can give the hon. Lady that assurance. Brian Lamb’s report, which admittedly will not be available until September, may take into account the views of SOS!SEN. I am sure that that organisation has covered this issue. Whether by issuing rules or, more likely, practice directions, we will deal with that relevant and fair point.
The rules have been in place for just over four months. If we were to revoke them now not only SEND but the mental health and care standards jurisdiction would have no rules of procedure under which to operate. Nobody would see that as being in the interests of children, their parents, other tribunal users or justice.
Mr. James Gray (North Wiltshire) (Con): I accept the Minister’s point about the terrible consequences of the statutory instrument not being agreed to. Is that not a strong argument for having brought it before Parliament before 3 November when it came into effect? Why has there been such a long delay? Why should the SI be considered in retrospect?
Bridget Prentice: That is a very good question. Having spent the last few weeks with the hon. Gentleman on the Coroners and Justice Bill Committee, I know that he always asks relevant questions. However, that is a question for the business managers rather than for me—although it is certainly not a question for my hon. Friend the Member for Wrexham. If there is a logical reason for the delay, I will ensure that the Committee is made aware of it.
I hope that I have given sufficient undertakings that we will keep the rules and procedures under review. I therefore ask the Committee to accept the rules.
The Chairman: I intend to call the Minister again if she wishes me to and as time allows, before Mr. Bellingham winds up.
3.10 pm
Annette Brooke: It is a pleasure to serve under your chairmanship for the first time, Mr. Jones.
I wish to address my comments entirely to special educational needs issues, because many organisations have expressed considerable concern, even those that have been involved in the consultation. As far as I know, the points made by the Independent Panel for Special Education Advice are still current, yet it sounds as though there are some areas of agreement. Those organisations have highlighted a number of issues that the hon. Member for North-West Norfolk has already raised and I will not be repetitive, but they are certainly concerned, as I think all special educational needs organisations are, that the change might make the system even more difficult for disadvantaged parents.
The system has long been criticised. There is great inequality in the system, because how much people get out of it appears to depend on their income and educational background. It is vital that we support those with the greatest need. Given all the concerns that have been raised, I am worried that we could be introducing more inequality, which is of course not the intention. What we are talking about here are probably unintended consequences.
The issue of payment has been raised by the independent panel, and it has requested that the Government give the tribunal the power to commission and pay for reports when the child’s best interests require that. I hope that such matters will be considered in the review process. I thank the Minister for her clear exposition and for the fact that there will be constant review. Such reviewing is important, and I hope that it will result in open and transparent publications, so that we can see which problems have been flagged up.
I wish to raise some points that appear to be outstanding. Some of them are probably not true, but it would help to have the responses clearly on the record for the many parents who are concerned. There is the general comment that the system will be much more complex and will not be understood, and that issue clearly must be reviewed. The point is made that the tribunal seeks to give itself the power to order a child to be assessed. Is that the case? Another point made is that longer hearings and more paperwork are inevitable. Are they?
The proposals abolish the idea of both sides setting out their case clearly before the tribunal, so the local authority’s case will not be clear and matters will be left to a directions hearing, which could be more complex. The Opposition spokesman raised the point about losing the two witness rule, and I do not believe that the Minister addressed that. The obvious concern is that that will weight judgment towards the party with the greatest resources.
It is interesting to look at the websites of the major societies. The National Autistic Society, for example, welcomes the principles of the changes—that is important to appreciate—but it still has great concerns. For example, parents will have to provide more information about their case, and identify potential sources of evidence that they will use, at an earlier stage than under the previous system. There are pluses to that, but the minus is that those parents who need support will need it even earlier.
The changes are dramatic. A lot of props need to be put in position and the Minister has not convinced me that they are there. I hope that these many outstanding questions can be addressed once and for all. I also hope that the reviewing process is comprehensively published and in such a way that it is possible to scrutinise it.
3.15 pm
Mr. Humfrey Malins (Woking) (Con): I am delighted to serve under your chairmanship, Mr. Jones.
I begin by thanking my hon. Friend the Member for North-West Norfolk for the very persuasive way in which he laid out our arguments in relation to these measures, but I would have expected nothing less from him.
I just want to make two or three queries to the Minister about the rules. Frankly, I say to her now that if she cannot deal with them at length in her response, I will be entirely content if she says that and then writes to members of the Committee with her answers.
I look at the rules before us today in part with my judicial hat on. I draw the Minister’s attention to rule 4 on delegation of powers to staff. Those who sit judicially are always a little nervous about such delegation, but rule 4 provides for functions of a judicial nature to be carried out by members of staff. I wonder if the Minister could tell us the grade or level of those members of staff who can carry out judicial functions and indeed what those judicial functions are. Are they really “judicial” functions, or does she mean “administrative” functions?
My second query relates to the costs issue under rule 10 and whether it will be entirely effective in practice. First, I wonder if it is right that, before an order for costs is made, the individual’s personal circumstances are considered. Normally in the courts in this country, if a person is due to pay costs, the costs are assessed and fixed. Only after that are the individual’s means looked at with a view to assessing at what rate the payment should be made.
Looking at the assessment provision under (7)(c), it seems to be a little unwieldy that, in certain circumstances, the costs will be assessed, presumably by the tribunal or the officials of the tribunal and then, even following that assessment, there could be an appeal, in effect to the county court, for what is known as a taxation. Am I right in thinking that the process can go as far as the county court?
Finally, I want to make a small point about representatives. I see that a representative who is appointed early in the process will have to deliver to the tribunal written notice of their name and address. I assume that, under rule 11(5), the person who accompanies the party to the hearing must reveal their name and address, although that is not stated. I say that because they appear, under rule 11(5), to be exempt from doing so, but it would be odd if that person did not have to reveal that information. It also might be slightly easier, although I wonder how this would work in practice, to say that the tribunal must give permission, or to put it another way, must not unreasonably withhold the permission.
3.19 pm
 
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