Questioning professionals in the lead up to a SEND Tribunal
I recall reading somewhere (Tribunal rules?) that parents can interview local authority professionals in order to gather evidence towards a tribunal. Is this correct, and if so can you reference the law?
Also, would it be reasonable to, say, write directly to the professionals asking them to quantify/specify their reports for statutory assessment or to comment on the provision (or lack of) as set out in an EHCP eg do you think x hours of y provision per week would be appropriate?
Further, if a professional refuses to quantify / specify / comment as explicitly set out in the SEND Code of Practice, would it be appropriate to report that person to their professional body?
We are not aware of anything which specifically refers to parents being entitled to question Local Authority officers in the lead up to a Tribunal but the
The Tribunal Procedure (First-Tier Tribunal) (Health, Education And Social Care Chamber) Rules 2008 (as amended) contain a number of relevant and helpful provisions.
- HESC Rule 5(3)(d) says the Tribunal can permit or require a party or another person to provide documents, information or submissions to the Tribunal or a party
- HESC Rule 16(1)(b) - the Tribunal can order any person to answer any question or produce any document in that person’s possession or control which relate to any issue in the proceedings
- HESC Rule 15(1) - the Tribunal can give directions as to:
- a) issues on which it requires evidence or submissions;
- b) the nature of the evidence/submissions;
- c) the number of witnesses for a party;
- d) the manner in which the evidence is to be given.
There is also some useful case law on the extent to which LAs should submit evidence which might not be helpful to its case: JF, R (on the application of) v London Borough of Croydon & Anor  EWHC 2368 (Admin) (31 August 2006):
“Although the proceedings are in part adversarial because the Authority will be responding to the parents' appeal, the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case.”
If you feel the LA is not sharing or obtaining obtain information that would help to resolve the dispute it may appropriate to ask that the Tribunal uses its powers of case management to hold a telephone case management hearing. Power to hold a case management hearing is found at: HESC Rule 5 (3) (f). Case management is intended to clarify the issues involved in the case and the evidence needed to ensure that the Tribunal hearing the case has all the information needed to reach a fair and just decision.
Requests for a direction or for case management should be made by submitting a Request for Changes Form: http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=3044
Before resorting to any of the above it would certainly be appropriate to write to the professionals involved and ask them to specify and quantify provision. Evidence that you have done this, and that you have not received a satisfactory response, should help when it comes to asking for a direction or for case management.