29th August, 2023

Preparation in the Special Education Needs Tribunal

Martin Mensah, Head of 9SJS Education and SEND Team shares tips and guidance for effective preparation at a SEND Tribunal hearing.

The team deal with a range of First Tier Tribunal hearings relating to school placement.

Parents and local authorities will disagree about the correct school placement for a child with SEN and the matter will proceed to determination by the First Tier Tribunal.

The parties are required to have a draft EHC plan and the “working document” can and should be edited and produced through ongoing dialogue up until the date of the Tribunal hearing.

The time-consuming and tedious process of the Tribunal having to go line-by-line through the working document should be avoided where possible.

Parties should ensure that they have followed the appropriate process in relation to highlighting the disagreements. The following key should be adopted:

Underlined type
Bold type
Bold strikethrough
Italics
Italic strikethrough

 

Amendments agreed by both parties
Parents’ proposed amendments
Parents’ proposed deletions
Local authority amendments
Local authority deletions

 


The ongoing dialogue should serve to narrow the issues so that a Tribunal only needs to deal with the most contentious points of the EHCP and in most cases, the focus of the Tribunal’s enquiry will rest on the competing arguments under Section I and whether the respective placements advanced by the parties are suitable or not.

In section B, all of the child or young person’s identified special educational needs must be specified (per para 9.69 of the SEN Code of Practice)

For section F, provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget

  • Provision must be specified for each and every need specified in section B.

It should be clear how the provision will support achievement of the outcomes

  • Where health or social care provision educates or trains a child or young person, it must appear in this section (per paragraph 9.73 of the Code)
  • There should be clarity as to how advice and information gathered has informed the provision specified. Where the local authority has departed from that advice, they should say so and give reasons for it
  • In some cases, flexibility will be required to meet the changing needs of the child or young person including flexibility in the use of a Personal Budget

The plan should specify:

  • any appropriate facilities and equipment, staffing arrangements and curriculum
  • any appropriate modifications to the application of the National Curriculum, where relevant
  • any appropriate exclusions from the application of the National Curriculum or the course being
  • studied in a post-16 setting, in detail, and the provision which it is proposed to substitute for any
  • such exclusions in order to maintain a balanced and broadly based curriculum
  • where residential accommodation is appropriate

The specificity required in section F should be clearly set out in the section in accordance with the following authorities:

R v Secretary of State for Education and Science, ex.p. E [1992] 1 FLR 377;

L v Clarke and Somerset County Council [1998] ELR 129;

E v Newham LBC [2003] ELR 286;

JD v South Tyneside Council [2016] UKUT 0009 (AAC)

In some cases, all that is required to obtain agreement on sections B and F is a clear reference to where the provision is in an expert report (if the conclusions are accepted/agreed)

In the Teams experience, so many cases have unnecessary conflict which could be avoided if the parties simply set out that the basis of the need in Section B and/or the basis of the provision specified in Section F of the draft EHC plan is in “Dr. X’s report of X date at paragraph X”

If the position is uncontroversial, these are eminently capable of agreement far in advance of any hearing.

It is easy to set this out from the point of view of the dispassionate advocate. We accept that the reality is that the working document process does require the engagement of both parties and given that the parties are likely to be in conflict and communication not at its best, this can be a difficult process.

However, the fact is, the greater progress that is made, the more likely it is that the Tribunal can direct its precious time and resources to focus upon the key issue in the case.

In terms of dealing with the contentious parts of the EHCP, this is likely to require evidence from the respective experts.

So, if parents consider that Therapy X is required and the Local authority maintain that it is not, the experts (if they are able to attend) will need to be asked questions to justify why they have concluded that that therapy is required for the child.

The Tribunal will then have to reach a decision based upon the competing evidence about whether there is a need for that therapy.

There are other difficulties that arise - the team have dealt with cases where, for instance, the hearing is outside of term time and so the local authority struggles to secure the attendance of witnesses, be that the Headteacher of the proposed school or the relevant experts.

This can obviously result in the force of arguments raised being diluted. Parties should use their best endeavours to secure the attendance of key witnesses where that evidence will be contentious and needs to be challenged.

So, in some cases, appropriately engaging with the working document process could avoid the need for a hearing. The parties may be able to reach agreement on the school to be named in section I and therefore reduce the stress and litigation risk of having a Tribunal reach that decision.

Ideally, the parties will attend a hearing with limited issues under section B and section F and the Tribunal will mostly be engaged with dealing with the legal arguments under Section I.

Members are always happy to assist with any queries in relation to the detailed formulation of EHC plans.



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