Ch-ch-ch-ch-changes…. to reduce SEND tribunal delays

Additional judges and new procedures for the Special Educational Needs and Disability (SEND) tribunal were announced yesterday in an attempt to tackle hearing delays.   

The problem

The Special Educational Needs and Disability tribunal is the busiest it has been in its history. In academic year 2018/2019 7,002 appeals were lodged at the tribunal. The National Trial, where the tribunal considers health and social care elements alongside the education elements of a case, has led to over 1,500 additional cases since its launch in 2018.  

The tribunal still aims to have your case heard within 22 weeks but there have been increasing reports of hearings being adjourned due to parties not being ready and a lack of available judges or venues. This is frustrating for all involved, not least for the child or young person at the centre of the appeal. 

What’s being done?

The good news is that change is afoot. Not only are 50 new judges likely to be allocated to the SEND tribunal but a new case review procedure will be implemented, after the final evidence deadline stage, to get the parties focussed and ready for the final hearing. 

The attendance form will be replaced with a new case review form, to be returned by both parties. This new form, imposing a case review procedure, will focus everyone’s attention on the outstanding issues. 

Local authorities will no longer file their attendance form with their response to the appeal. Instead their attendance details will be filed later, as they will be included on the new case review form. 

Crucially issues that haven’t been resolved through the earlier case management processes or at the telephone case management hearing will receive the necessary focus in advance of the final hearing. 

The new case review form will ask parties specifically about whether they have reached agreement on a final version of the working document and it will ask them to set out all the outstanding issues yet to be agreed. 

The new procedure will require all witnesses that are due to attend the hearing to file either a report or a signed witness statement at the final evidence deadline stage. This will be taken as their evidence in chief. 

The case review procedure will ask parties to actively consider a paper-based hearing, if suitable, removing the need for oral evidence and submissions and reducing costs for both parties. The process will also try to get agreement on witnesses attending by telephone or video conference so that experts are not charging for time spent attending but not participating. Witness attendance times will be cut, freeing up experts who have previously had to block out entire days in their working week. These efficiencies can only be good news for parents and local authorities paying for representation and expert witness attendance.  

As part of the new procedures the parties will also be asked to give three mutually agreeable dates for the final hearing, establishing a hearing window. The tribunal will only list the final hearing on one of the pre-agreed dates, making it less likely that the final hearing will be adjourned due to the witnesses or representatives not being available. 

It is envisaged that the new system will encourage the parties to be proactive about narrowing the issues and discussing changes to the timetable in advance, leading to more agreement within the process.   

The changes are to be implemented imminently, so watch this space!