CALL TO ACTION: Let’s work together to stop SEND Tribunal nightmares

Moving the Baker Small Twitter-storm along... Special Needs Jungle would like to use the momentum we have gathered to create a groundswell of SEND community support to:

  1. Stop local authorities using tax payers’ money to buy in law firms to represent them against parents at the SEND Tribunal and;
  2. To also ask why so many cases are ending up at Tribunal in the first place.

You've probably seen by now that BS earned well over £1.5 million from local authority contracts and that's just one legal firm. That's money that could be spent supporting our children, training staff, improving facilities and resources.

As you can see in our infographic from recent Tribunal figures, if local authorities are losing 84% of appeals, it suggests there is a serious flaw in their methods for identifying SEND and/or they are abusing the tribunal system as a way of deterring or delaying support.

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We know what's wrong, but how can we make it right?

We’re calling on you all to contribute your views and support so we can create something together, that would work, both legally and in practice.

Renata, @AspiedeLaZouch and I have put our heads together and have agreed on a few ideas. But we want this to be a community movement, so we need your help, experience and expertise to create a solution.

Please contribute your ideas and thoughts in the comments on THIS POST (rather than on Facebook) as reading your ideas may give someone else another idea of their own to add. If you want to be anonymous, I’ve added a form at the end for you to fill in.

What we propose - a voluntary code of conduct

We are proposing introducing a VOLUNTARY CODE OF CONDUCT that local authorities could sign up for to show that they are fully committed to embracing one of the key aims of the Children and Families Act 2014: to reduce the adversarial nature of the SEND system.

We have the law on our side. The SEND Code of Practice already enshrines in law the requirement for Local Authorities to work in partnership with families to assess and provide for a child’s SEND, so we shouldn’t be seeing these cases ending up in Tribunal in the first place:

5.37 Where a setting identifies a child as having SEN they must work in partnership with parents to establish the support the child needs. 

9.44 “…Throughout the statutory process for EHC needs assessment and EHC plan development, local authorities must work in partnership with the child and his or her parent or the young person. …” 

9.168 Reviews must be undertaken in partnership with the child and their parent or the young person, and must take account of their views, wishes and feelings, including their right to request a Personal Budget. 

10.30 (Re Home educated children) Local authorities should work in partnership with, and support, parents to ensure that the SEN of these children are met where the local authority already knows the children have SEN or the parents have drawn the children’s special needs to the authority’s attention.

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What's the thinking behind this?

  1. Introducing a voluntary Code of Conduct does not require amendments to either the Children and Families Act or to any local policies. This means it could, in theory, be achieved more quickly.
  2. The code would also have the advantage that it could also be signed by parent groups and Independent Advice and Support Services and any other advocacy services.
  3. It might, for example, contain commitments to publicly disclose expenditure on a case by case basis and to follow certain standards of practice which are more parent-friendly and which go beyond solicitors' regulations. It could be promoted by the Tribunal itself, endorsed by the Children's Commissioner and monitored by the Solicitor’s Regulation Authority (SRA).
  4. LAs that sign up to the code would benefit in terms of their image and their relationship with the Tribunal. Parents could point out during the hearing that their opponent had not signed the code and would be able to lobby their local councillors to persuade them to do so.
  5. The code of conduct would discourage local authorities from using outside counsel where possible, unless for points of law or in very complex cases. If signed up to the voluntary code, they should only use legal firms who also are prepared to abide by its principles.
  6. This means that Tribunal Officers should be given any additional training needed to be able to represent the LAs case confidently. They should be open to continuing discussions with parents aimed at resolving the disagreement as often as possible before any Tribunal hearing
  7. The use of Dispute Resolution and Mediation should be given a greater emphasis and explained by local authorities to parents in an easy to understand way.
  8. With the savings made from being less reliant on external law firms, LAs should perhaps contribute to the IASS and/or Independent Support services to boost the number of specialist advocates available to support parents in dispute or going to Tribunal against the LA.
  9. The Independent Supporter service could be allowed to continue to support parents all the way to an appeal if needed. At the moment, this support only lasts until the LA's final decision, then parents are on their own.
  10. A deadline for late Tribunal evidence could be enforced, unless it is known to be on the way, to save last minute 'surprises'.
  11. If the LA concedes through lack of evidence after the deadline, then parental costs could be payable or a fine, perhaps.  Likewise, there should be a system for penalising LAs found to be using delaying tactics or ignoring the law if the case gets to Tribunal, such as it triggering an Ofsted inspection.
  12. A voluntary code could require that there must be evidence that both sides through the waiting time for appeal have continued to try to resolve the dispute. Failure to do should be explained to the Tribunal judge and taken into account.
  13. If the weight of evidence submitted to the Tribunal clearly indicates that the local authority has failed to follow the CaF Act and the SEN Code of practice then the local authority should be ordered to follow the law before it gets to Tribunal and the costs are incurred.

Changes already underway

There is already a move for more case management by telephone with a Tribunal judge before a hearing and this, it’s hoped, will be extended. Right now, there is also pilot with a number of LAs and the Tribunal, testing using the SEND Tribunal for health and social care disputes in an  EHCP as well as education, instead of the different routes they have now. It will be interesting to see the results of this when the pilot is complete.

In her blog, Kate Harvey, Solicitor and Head of Education Law, Coram Children’s Legal Centre said:

If matters can be resolved without the need for a court process – so much the better. Solicitors acting for LAs can often help the resolution process by offering the LA robust legal advice. This can encourage an LA to concede or adjust/soften its position as the LA reviews matters with the benefit of a lawyer’s perspective about what is likely (or not) to find favour with the tribunal.”

Before you add your comments, here are a few things to consider:

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What’s the difference between Mediation and Dispute Resolution?

The SEND Code of Practice explains from [11.13] that The Children and Families Act 2014 makes a distinction between disagreement resolution arrangements and mediation.

  • If parents or young people want it to, MEDIATION can take place following decisions by a local authority not to carry out an EHC needs assessment, not to draw up an EHC plan, after they receive a final EHC plan or amended plan, following a decision not to amend an EHC plan or a decision to cease to maintain an EHC plan. These mediation arrangements complement the disagreement resolution arrangements set out in paragraphs 11.5 to 11.10.
  • The DISAGREEMENT RESOLUTION arrangements are designed to resolve disagreements about the performance of duties, SEN provision, disagreements over health and social care provision and disagreements between health commissioners and local authorities and are voluntary for both parties (see paragraph 11.8). The mediation arrangements are specifically linked to decisions about EHC needs assessments and plans. Disagreement resolution services can be used at any time, if both parties agree, including while an EHC needs assessment is being conducted, while the plan is being drawn up, after the plan is finalised or while an appeal is going through the Tribunal process.

Why can’t we just ban lawyers from the Tribunal altogether?

@AspiedeLaZouch explains:

  1. LAs will argue that their public accountability requires them to defend decisions made by elected members and their officers.
  2. If parents were not using legal representatives at Tribunal, they might not win as much as 84% of cases (although how many of these were unrepresented or unpaid advocates is not known)
  3. Banning lawyers as representatives in the hearing would require an amendment to Rule 11 of the Tribunal Procedure (First-Tier Tribunal) (Health, Education And Social Care Chamber) Rules 2008 (amended 2015), which would take much longer to achieve.
  4. In return, LAs may want independent experts such as speech therapists, ABA practitioners and chartered psychologists to also be banned. Parents would then ask that LAs' educational psychologists should be banned. We would arrive at a position where the panel themselves feel unable to answer questions because the expertise is no longer in the room. However, it is possible an agreement could be made to avoid this.
  5. There is a further obstacle: the First Tier Tribunal also hears mental health appeals and the protections contained in Rule 11 are fundamental. Changing it would have grave implications beyond education. Any change would have to apply only to EHCPs and this may not be possible.
  6. My final point is that without the option of legal representation at First Tier Tribunal both sides will more often feel compelled to seek Judicial Review to test whether the outcome they received at Tribunal was the best possible application of the law. In terms of cost, Judicial Review dwarfs the cost of hiring a solicitor / barrister at Tribunal. In the end, people would not thank us for that. I suspect the option of representation at First Tier Tribunal is a necessary evil.

Join Carrie Grant and add your support

Carrie Grant
Carrie Grant
Our last post caught the attention of Carrie Grant, who you will know as well as a top vocal coach is also the parent of children with additional needs. She's seen our draft and is lending her support to the campaign:

"When your children are diagnosed with Autism or SEN, your world is turned upside down, there is a lot to celebrate but you also have to make massive adjustments at home and school and begin to manage a whole host of emerging issues.

When a parent is wrung out from battling at home there can be nothing worse than having to fight on every front. Schools and Local Authorities should be mindful of the potential negative impact they can have. Surely we can learn to talk with one another without the presence of lawyers. No one has any idea what us parents face, you simply cannot imagine it unless you've faced it. When true child-centred collaboration happens it's magical and it's something we should all be striving for."

This is important because it cannot just be an SNJ thing. It needs to come from across the SEND community and beyond in the same way that we all rounded on the outrageous tweets from the BS law firm. Also on board so far are SNJ's Angela of course, and Steph Curtis of Steph's Two Girls. We need every SEND blogger to sign up, so please contact me or Renata via FB or Twitter (or below)

That should be seen as a catalyst - a watershed moment when we realise that complaining about injustice separately is nothing compared to our voices, in unison, calling for this wasteful, stressful, hurtful and horrifically expensive practice, to end.

This campaign, if it is to succeed, needs to be supported by parents of children with disabilities, SEND bloggers, legal advocates, charities, supporters, parent groups and anyone else who wants to see a fairer way forward for disabled children and their families. It's not about me or you, it's about our children.

Remember – the law is on our side. It is time to change the culture of the system by giving us a way of identifying and celebrating those local authorities that are committed to working with us to deliver better outcomes for our children and holding those that don’t accountable!

Are you ready to turn your outrage into action?

Leave your thoughts in the comments here or send them in this form. If you just want to let us know you're pledging support, that's fine too! 

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Tania Tirraoro
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Alexa Carter

A pre-action protocol I feel would assist all parties. My background is civil litigation and the CPR pre-action protocols are very important tools and guidance when dealing with the exchange of early information and conduct.

Tania Tirraoro

Thanks- I’d like to hear more about this if you have time. My email is team@specialneedsjungle.com

Madeleine Gilkes

I went through 3 appeals with Cambridgeshire County Council (with Baker Small) to get the support and placement my son needed. The first, against a right to assess, was conceded in the July, prior to a September tribunal. The second, regarding a note in lieu being issued instead of a statement, was conceded the week before tribunal and a full-time EHCP was awarded. The third, regarding placement, was conceded (in relation to the placement element) the Friday night before a Wednesday morning hearing. The whole process was initiated and support by my son’s then mainstream school who reiterated his needs… Read more »

Tania Tirraoro

An independent arbitrator is a good idea and this is what a mediator or dispute resolution should be if it gets to this. But the evidence really should be independently reviewed and agreed before any decision is made

Vague

Financial sanctions/punishments are most definitely needed to encourage LAs to improve their practices. It is the only thing they think about, money. They do not think about the needs of the child, only about their budgets. It needs to be more expensive for them to ignore and manipulate the law than it does to follow it in both letter and spirit. Sad but true. The previous system would have worked just fine, without any changes. All they needed to do was introduce penalties.

Tania Tirraoro

It’s a great idea in principle, but not if the fines came out of the SEND budget…

Paul Watson

Then maybe the sanction should be against the individual officer not the department/LA. When I’ve argued about particular evidence from a professional I’ve been told that because its their ‘professional opinion’ then it will stand no matter how absurd it is. If they want to have the standing of a professional person then they also have to bear the consequences of failing to uphold the responsibilities of that position…….. How often do you seen physio/salt/OT reports that fail to specify for example.

Alexa Carter

would the joint instruction of a single expert work? works in many civil disputes.

Tania Tirraoro

Another good idea!

Carrie

Baker Small are (rightly) taking the hit but at the end of the day they have identified a niche market i.e. LA’s who want to win at all costs. One sided legal representation is not simply unfair – it is purposefully intended to intimidate. Most parents (and young people) do not have deep pockets, are not eligible for full legal aid, and even when they are eligible they are unable to have legal representation at FTT hearings as legal aid does not cover this.

Tania Tirraoro

Agreed. It’s those on the lower end if the economic scale who don’t get as far as tribunal or if the school applies for statutory support, the plan may not be that ambitious in its outcomes or SMART

Nicola Morris

I agree that things need to change. I have been a parent advocate since 2005. Mr. Small is atypical of legal representatives who I come across and most other legal representatives (who experience his tactics first hand) take a very dim view of his approach, which is one of delay and withholding vital pieces of information. Both practices entirely against rule 2 of the tribunal rules. The problem is as we have all witnessed with his excuse for his tweets (that it was prompted by an “alleged” abusive e-mail) proving that he is not acting as he should, and that… Read more »

Tania Tirraoro

Great ideas, thank you. Will add them into the mix

IASS Network

Hello, While we agree with much of this article I think there is some confusion about the role and training of Independent Supporters whose job is to offer information and support through the EHCP assessment process (point 9 above). Information, Advice and Support before, during and after Tribunal requires a great deal of time and knowledge. A significant number of Information Advice and Support Services (IASS) have always provided this, including speaking on behalf of parents who were unable to do so at the Tribunal. This is a role that we are supporting nationally with accredited IPSEA training on Tribunal… Read more »

Tania Tirraoro

Thanks Daisy. I was referring to IS not IASS. However thanks for adding this as clarification. I have invited you to have a guest post before now about IASS and that invitation still stands.

Annonymum

Please can we talk about the money side of things…? I think it is often something that gets ‘swept under the carpet’ but we need to have a frank and open discussion about the sort of finances that parents with children with special educational needs are having to amass – in order to gather information needed to secure very scarce and limited appropriate provision, in the face of Local Authorities trying to cut costs and reduce spending. I understand the costs to be in the region of £10,000 – £15,000 for assessments relating to Speech and Language Therapy, Occupational Therapy,… Read more »

Tania Tirraoro

Yes, these are initial proposals and you make important points that we need to include in the debate. Thanks for your comments

Paul Watson

Why can’t we just ban lawyers from the Tribunal altogether? @Barney Angliss, @AspieDeLaZouch explains: LAs will argue that their public accountability requires them to defend decisions made by elected members and their officers. This goes both ways. Council officers follow the direction of the elected members and are publicly accountable for their decisions. Legal aid is not available for parents going to tribunal (unless there is a specific point of law) because it was claimed that the tribunal was set up in a user friendly way not requiring representation. In a time of budget cuts should we not be asking… Read more »

Tania Tirraoro

Thanks for this, I’ll add it into the mix

Patricia Bolton

I am more than happy to support this campaign. I have thought a lot about what has happened over the last week in respect of Baker Small Solicitors and those awful tweets directed at parent/carers. For me it has shown us the inequalities of the Tribunal System. How can it be right that a Local Authority can and does spend a whole load of money to represent them in a tribunal and yet for many parents they are just not able to do so. It is a daunting and frightening process to start of with, without knowing you are going… Read more »