As many of you will know, the SEND system is in crisis. There are more appeals than ever coming before the Special Educational Needs and Disability First-tier Tribunal (FTT), as more and more parents become conscious of their legal rights.
In previous years, parents were not so aware of their rights in this area, and fewer challenges were made. While the system clearly cannot cope with the current caseload, what this dramatic increase does show, is that all of the work we are doing, spreading knowledge and awareness of parental rights in this area of law is working. However, with Jane McConnell, Lead Judge in the SEND Tribunal stating recently, that 6000+ appeals is not a ‘one off’ but the new ‘normal’, what should parents expect in the months to come?
A couple of weeks ago a barrister I instruct, Mrs Alice De Coverley, wrote on her Linked In page:
“All my SEND tribunal hearings next week have been vacated and adjourned to the Autumn term. All my tribunals last week were vacated and adjourned. All my tribunals, bar one that had already been adjourned twice, the week before that were vacated and adjourned. The system is broken”Alice De Coverley, SEN barrister
The post was highly commented on, with huge concern shared by a number of professionals as to the magnitude of the delays. “It is out of control” … “the problem is that DFE think the spike is temporary, it’s not,” were just a couple of the comments from an outpouring of frustration at the current system.
Many parents will sadly be familiar with the latest practice in the Tribunal which come a few days (right up to a few hours) before your child’s tribunal hearing is due to take place: “Due to a lack of judicial availability, X’s Hearing has been adjourned and will be rescheduled at the earliest possible date,” causing upset, stress and additional costs for all involved. The official line is that 50 cases are being stood down per week, but I expect the stats may be even more stark than that.
What can be done?
While professionals grappled with many different ideas to solve/reduce the current ‘broken’ system, concerns were also raised, not only for those cases which had been vacated for the first time, but for those that had been repeatedly vacated, i.e. vacated on the original hearing date, re-listed and then vacated again. For these types of cases, or if your child’s hearing is vacated late in the day, parents should be aware that they can make a complaint to the First-tier Tribunal and seek compensatory costs for their wasted funds (barrister fees, expert witness costs including travel etc). We have recently recovered £4000+ in costs for a case which was removed for the second time (due to lack of judicial availability) at 2.00pm the afternoon before the Hearing.
It is widely accepted by those working in this field, that the case management procedures the Tribunal have started to do in the run up to hearings to limit delays, aren’t working. As an example, I received case management directions in one of my cases, setting out everything we needed to do in readiness for our hearing. However the directions were received 10 days after the Order was made and within an hour, we had received another Order vacating the case as we weren’t ‘ready for Hearing’. The parents were essentially penalised for not complying with an Order that they didn’t know existed.
Parents cannot win at the moment; the system is in crisis.
Blind hope of settlements
At this time of year, we also have the added complication of phase-transfer cases. Often local authorities have not finalised a child/young person's EHC Plan, despite the legal timeframes (31st March if the transfer is from secondary school to post-16 or 15th February in any other case) and we have hundreds of children/young person’s being left without a school/college placement for September. Fixing multiple appeals on the same day in blind hope that many would settle seems a ludicrous idea to have been adopted by our judiciary.
While at one end of the spectrum, we have cases being pulled from the listings with hardly any notice, causing despair to families, we also have a further difficulty at the other end of the scale. While professionals are working tirelessly on Working Documents and coming to an agreement, applications to vacate are just not being looked at early enough. The vacating of an appeal by consent, which could free up valuable court time, is taking up to a month to process.
For those that do get to a hearing, there are also concerns about the length of time it is currently taking for a decision to be issued. While the aim is to get a decision out within two weeks, that has recently doubled in waiting time - leaving parents anxiously waiting up to a month for their decision.
So, what's the solution?
The view is that the SEND Tribunal are genuinely open to ideas on how to fix the crisis.
I have suggested a specific email address is used to prioritise applications to vacate to release the backlog, but it was considered that as a judge still has to approve an order to vacate, and it is the lack of judicial time that is the problem, this would not resolve matters.
- Many professionals, myself included have considered resorting back to the old 20-week timetable for all Appeals against Sections B, F and I. The difficulty is that it is thought that the Tribunal do not have capacity for that either. We’ve essentially switched to a system that was intended to speed things up (from 20 to 12 weeks) which has ended up, quite the opposite.
- Mediation is another suggestion, but with limited evidence of the effectiveness of mediation, particularly in respect of content appeals involving Section I, concerns are understandably raised as to whether this would just result in further delays.
- It seems odd to me that every case is given the same case management be it a Refusal to Assess or a complex content appeal. Additionally, the Tribunal (due to a lack of resources) are not clamping down on parties who are not complying with basic Case Management such as not providing bundles, not providing an LA response, etc. This means many cases remain in the system that might otherwise have been struck out, on the basis that there is no reasonable prospect of success. We have had cases where the LA have not filed one document in the whole appeal, yet the Tribunal allowed them to carry on, even allowing them an extra seven weeks to provide their response, which they still failed to do. Perhaps if the Tribunal (rather than giving unconstructive extensions) issued penalties for late or non-service, we may see more local authorities complying with procedure and the rule of law.
- More judges? We’ve repeatedly been told that there are going to be X new Judges in the SEND Tribunal but they never seem to arrive. While it has been recognised that there is a move towards Case Management, it is happening too late in the day and often too late to be effective.
- There is also the additional expense to the public purse to consider and moreover what happens when it runs out? If a hearing is vacated late in the day and parents successfully recover their wasted costs (which I would encourage parents to do) who pays for these recovered costs? It comes out of the public pot. In this scenario, parents/LA’s will still have the future costs of the hearing, when it is rescheduled some months later, but where the public purse has also had to foot the bill for wasted costs due to a late vacation of the hearing, this is coming from an already squeezed public purse. Is there a limit to this pot? Could those funds not be better spent on active case management and more judges so as not to vacate in the first place?
If you have a solution, I want to hear it - we need a way out of this.
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