Following an apparently successful trial, the SEND Tribunal rules have been changed to allow all appeals to be heard by two member panels, rather than three as has been standard procedure up to now. Two member panels comprise one person with legal experience who acts as the judge and one with substantial experience of SEND, both of whom have heard at least 25 cases.
This raises a number of questions:
- How will new recruits to the Tribunal service build up enough experience to sit on two member panels? This is not clear, but presumably some cases will still need to be allocated a three member panel. It is worth noting too that judges can also appoint a third member if the case involves specific issues that require it.
- What will happen if the two members of the panel cannot agree on their judgement? The advantage of three member panels was that there would always be at least a 2:1 majority one way or the other.
Apparently, in the trials, there was rarely any disagreement, but if a two member panel cannot agree, the judge must arrange a further hearing with a new three member panel. The disadvantage of this is that it would take longer to reach a decision and may entail extra costs for parents, especially if you are using a solicitor and/or paying for witnesses to attend the hearing. Whether parents would be able to claim for reimbursement of these costs is not yet clear.
In another change, more local authorities have been added to the pilot scheme allowing the Tribunal to make recommendations in relation to health and social care. Remember that under the current law, parents can only appeal decisions regarding special educational needs and/or provision. However, under the pilot, they can also ask the panel to review decisions about health and social care and make recommendations. These have no legal force so local authorities and health services are not obliged to take any notice. This trial has already been underway for some months, but as yet it is unclear where it will eventually lead, if anywhere. It seems to be a case of Watch this Space!
The new authorities joining the trial are Birmingham, Buckinghamshire, East Sussex and Northamptonshire. The authorities that have been involved from the start are: Barking & Dagenham, Bedford, Blackpool, Cheshire West and Chester, Ealing, East Riding of Yorkshire, Hackney, Kent, Lambeth, Liverpool, Sandwell, Stockport and Wokingham.