Bridget
Prentice: First, the hon. Member for Mid-Dorset and North
Poole rightly said that I had not responded to the hon. Member for
North-West Norfolk about the number of witnesses, so I want to begin by
doing
so. As
the hon. Member for North-West Norfolk said, in the past, the number of
witnesses was restricted. That restriction has not been replicated in
the health, education and social care rules, because the Tribunal
Procedure Committee, which makes the rules, believes that the rules
should not be arbitrarily limited in terms of the number of witnesses,
as that could work against the interests of
justice. I
also want to reassure the Committee that parents will not be put at a
disadvantage as a result of that. It does not mean that parents will
have to try to produce more witnesses, nor does it mean that an
unlimited number of witnesses will be called. In fact, the reverse will
happen, because the tribunal can limit the number of witnesses that
either party
calls. The
case management process will help the tribunal to identify what witness
evidence is needed and then ensure that the appropriate witnesses are
called to support each party’s case and test evidence, as
appropriate, before it. The tribunals consulted on that through the
user groups and at training events. It was decided then that it would
be inappropriate to set a specific formal limit on the number of
witnesses, because a blanket limit could be contrary to article 6 of
the European convention on human rights. As I said, case management
will identify the witnesses required in any given case, and the
tribunal will keep that under review in consultation with users and
members. The
hon. Member for Mid-Dorset and North Poole is concerned about forcing
children to attend hearings. The child or young person’s right
will remain exactly as it has been. They will not be required to attend
hearings. Their current rights remain the same; they have just been
incorporated within the new rules. Tribunals will not force children to
undergo assessments against their or their parents’
wishes. Under
the previous regulations that applied to SENDIST, the tribunal could
only encourage parents to provide the most up-to-date evidence possible
from assessments by professionals. If one party refused to co-operate,
the
tribunal was faced with having to base its decision on incomplete
evidence, which could distort the decision
making. Rule
15(4) altered that, so that the tribunal can, where it considers it
appropriate, require the parent to make the child available for
assessment by an appropriate professional and/or require a school to
allow a professional instructed by the parent into the school to assess
the child’s functioning in a school environment. That new rule
is designed to ensure that the tribunal can have complete and
up-to-date evidence, which will help it to come to the right
decision. The
hon. Lady also asked about case management. The tribunal proposes that,
from April, all cases will receive either automatic directions or a
paper hearing. Only if the judge decides at the paper hearing that a
further telephone or face-to-face case management hearing is required
will a direction be given that one should take place. That should make
the process simpler and ensure that judicial time is focused on the
more complex cases that need greater case management. As we speak, the
tribunal is consulting on that
process. The
hon. Lady asked about more information for parents. A parent will still
lodge an appeal against a decision of their local authority by filling
in an appeal form, setting out the information and sending it to the
tribunal. What has changed is that, under the previous rules, a
parallel case statement process was adopted. That meant that both the
parent and the local authority were asked to comment on the decision at
the heart of the appeal independently of each
other. Under
the new rules, the local authority will be asked to respond directly to
the issue that the parent raises. The amount of information that
parents need to provide has not changed, although they are now asked to
provide as much information as possible at the beginning of the
appeal. The
hon. Member for Woking asked about delegation to staff. That rule
applies across the chamber of the first and the upper-tier tribunals;
it does not apply just to the chamber under discussion. It means that
some minor administrative decisions, as he said, can be dealt with
without taking up judicial time. However, any such delegation must be
approved by the senior president of a tribunal, and in any event it can
be referred back only to a tribunal
judge. The
hon. Member for Mid-Dorset and North Poole was concerned that some of
the organisations that I cited as supportive are perhaps not as
supportive as I said. The National Autistic Society, the Special
Educational Consortium, the Independent Panel for Special Education
Advice and the National Association of Independent Schools and
Non-Maintained Special Schools asked that the rules be laid when we
laid them, rather than delay it. A number of them have said publicly
that this is a better forum for parents to get the best possible
outcome for their children.
3.25
pm
Mr.
Bellingham: I apologise for promoting you earlier,
Mr. Jones, and thank the Minister for explaining the complex
points and answering our questions in her usual courteous and
professional
manner. The
Minister made two key points. First, the rules will be kept under
constant review. Secondly, the Tribunal Procedure Committee will go on
looking at the rules as they bed down. She also mentioned the Lamb
report. The commissioning of that report suggested to me that the
Government had severe concerns about some of the rules. She said that
if the rules were not voted through today, complete chaos would emerge.
I say to her simply that this has not been well
handled. The
explanatory memorandum is extraordinarily candid. Paragraph 3.1
states: “Ministers
judged that there was a serious risk of Parliament not approving the
affirmative statutory instruments if all the concerns of some key
interest groups had not been
met.” It
is quite extraordinary that Ministers are prepared to say that. Getting
a vote on measures such as these relies on opposition parties praying
against them. If the Government had brought these rules before the
House in the normal way, they would simply have gone
through. My
concern is simple. The Minister has answered a number of points, but a
number of key concerns remain outstanding. I take on board what she
said about organisations such as the National Autistic Society, but
other groups have contacted me to say that they are still concerned
about what is going on. Although the last thing the Opposition want to
do is create confusion or chaos, we are not happy with the situation as
it
stands. Question
put. The
Committee divided: Ayes 9, Noes
7.
Division
No.
1] Foster,
Michael Jabez (Hastings and
Rye)Question
accordingly agreed to.
Resolved, That
the Committee has considered the Tribunal Procedure (First-tier
Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (S.I.
2008, No.
2699). 3.29
pm Committee
rose.
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