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Tribunal Procedure in England
In England the SEN Tribunal is now governed by the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 which came into force on 3rd November 2008. (“HESC rules”)
General SEN Tribunal Procedure
The general tribunal procedure has changed in principle further to the new act and regulations, but little seems to have actually changed in day to day practice (although the process has certainly become more ‘legal.’) Parents must now be even more specific when lodging their grounds of appeal. The LEA then respond and parents are sent a copy of this response, then all additional evidence must be filed approximately 1 month before the final hearing (a date will be given by the tribunal itself during the case) and this importantly relates to expert evidence. ‘Late evidence’ will no longer be allowed unless permission is given by the tribunal which would need to be applied for. Furthermore justification should be given as to why experts are needed at the final hearing.
SEN case management powers
There is now a power to hold a case management hearing or in fact any hearing to decide preliminary issues (HESC Rule 5(3)(f). In less complicated cases such as an appeal regarding refusal to conduct a statutory assessment standard directions will be issued but in more complex matters the tribunal will now consider the papers to ensure the case is appropriately scheduled. An oral hearing would rarely be necessary.
SEN Tribunal directions and imposition of sanctions
The tribunal also now has some ‘teeth’ due to HESC Rules 7 & 8. If a direction of the Tribunal is not complied with Rule 7(2) gives various powers to the Tribunal ranging from waving the requirement to striking out a party’s case or restricting their involvement. A strike out can only occur (Rule 8) if the direction order contains a statement to the effect that failure to comply with the direction would or could lead to the case (or part of it) being struck out. If the order says ‘would’ the strike out is automatic, if it says ‘could’ then the party has to be given the chance to make representations on the strike out.
Solicitor drafted working documents
Working documents are also now expected. Such documents should have been worked upon by both parties and should assist by narrowing the issues.
SEN Tribunal witness procedure
There is now no set limit for witnesses in the Rules but under HESC Rule 15(1)(d) the tribunal can limit the number of witnesses – the current intention is to limit the number of witnesses to 3 for SEN appeals and 5 for DDA claims. If any more are required, an application would need to be made.
Withdrawing an SEN Tribunal Case
A party can still withdraw their case but now withdrawal will not take effect until the tribunal consents (HESC Rule 17(1) and (2). HESC Rule 29 also allows for consent orders. See below.
Can the SEN Tribunal order a party to pay costs?
A significant change relates to costs. HESC Rule 10 explains that if the tribunal considers that a party or their representative has acted unreasonably in bringing, defending or conducting the proceedings. This is a change from acting “wholly unreasonable”. However, the tribunal should not make such an order without first considering that person’s financial means.
Under the new rules, a parent can also ask the SEN tribunal to issue a consent order in circumstances where the case has settled but both parties require certainty as to what was agreed. One of our expert SEN solicitors can advise you if this is necessary.
Appeals to the SEN upper tribunal
The HESC Rules 44- 49 have substantially changed the position regarding appeals and have created the Upper Tier Tribunal. Previously if a party wanted to appeal they appealed by way of a ‘statutory appeal’ to the high court. Now they firstly need to ask for permission to appeal in writing no later than 28 days after the decision has been sent to the party regarding errors in law in the decision.
SEN cases have two options for review but a party needs to select which one they want, either review because of an error of law (Rule 49- it is unclear why this would be asked for when an appeal could be lodged) or if the circumstances relevant to the decision have changed since the decision was made (Rule 48.)
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