When a Tribunal isn't a Tribunal - all change to SENDIST panels

Following three years of consultation and pilots, the Special Educational Needs and Disability Tribunal panels are going to be changed. With immediate effect, all appeals will automatically be allocated a two member panel.

In January 2013 the Senior President of Tribunals launched a consultation to consider changing how the Special Educational Needs and Disability Tribunal (SENDIST) panel was made up. Previously, the panel of a SENDIST hearing would be three people – one lawyer and two specialist members. The consultation was about the idea to reduce it to two members – one lawyer and one specialist member.

The consultation in January led to a pilot running from October 2013 to March 2014. The pilot affected only appeals about a refusal to conduct an assessment of special educational needs. In those appeals, a panel of two was automatically appointed. There were provisions for the parties, or the Panel itself, to request a third member if the case was factually complex.

The Senior President of the Tribunals considered that the pilot was a success. From July 2014, the SENDIST automatically appointed a two-member panel to appeals dealing with a local authority refusing to conduct an assessment of special educational needs.

Since October 2014 a further pilot has been running. This was to consider using a two-member panel for all SENDIST appeals, including Statement of Special Educational Needs and Education, Health and Care Plans.

During this pilot, only 332 appeal hearings have taken place with two panel members. Of those:

• In two appeals, the parents or their representatives asked for a third panel member. These were both refused;

• In 32 appeals, the lawyer member of the two-person panel requested a third member. All of these requests were approved by the SENDIST judicial lead;

• In one appeal the specialist member of the two-person panel asked for a third member. That request was refused.

• Whilst half of the appeals were adjourned, the reason for adjourned was not directly linked to the panel being two, rather than three, people.

Feedback has been sought from the panel members themselves and the parents who have appealed. The panel members have generally concluded that a two person panel is adequate, although specialist members have indicated some concern that they are being too heavily relied on to lead the inquisitive element of the hearing.  This concern was echoed by one parent (of the 16 who were asked).

Following the conclusion of the pilot, the Senior President of Tribunals has now published a report. This concludes that the SENDIST panel composition will permanently be changed so that appeals will automatically be allocated a two-person panel. This will be one lawyer and one specialist member.

What does this mean?

From now on, all appeals to SENDIST will be considered by a two member panel, unless a decision is taken that a third panel member is needed.

Any party to the appeal (parents, young person or local authority) can ask for a third panel member to be allocated. Equally, the lawyer and/or specialist member of the SENDIST panel can apply for a third panel member to be allocated to the hearing.

There is little guidance about when a third panel member will be allocated. The key question is whether a two member panel will be able to deal with the appeal “fairly and justly”. That means that a third panel member is likely to be needed if there is a large amount of expert evidence, a large number of witnesses, a very complex factual background or the appeal is likely to be listed for more than one day. Every application will have to be considered on its own facts and applying the overriding objective of the Tribunal Procedure Rules.

What if they disagree?

The danger is that a two member panel may disagree about what Order the SENDIST should make. If this happens, then the whole appeal will have to be reheard. In a three member panel, the decision is a matter of majority, but that clearly is not possible with two members.

The report concludes that, following a Court of Appeal case, if a two member panel does not agree, then the lawyer member of the panel should direct that the whole matter is re-heard by an entirely new, three member, panel. This obviously creates the possibility of rather significant delay.

It has also been pointed out, since we first wrote this post, that if parents are represented, they may face a situation of having to fund a second hearing. This is a very real issue. There is a (slim) chance of recovery of fees if the reason for disagreement between the two member panel is due to the conduct of the local authority. It is difficult to foresee a situation whereby a disagreement would be purely as a result of the local authority’s conduct.

Conclusions

This is obviously a very significant step. It seems from the report that the motivations are both financial and practical. During the six month pilot, the relatively small sample of 332 hearings involving two, rather than three, panel members saved just over £75,000 of public money. If this is grossed-up for all SENDIST hearings, the savings are likely to be around £500,000 per annum. It is also increasingly difficult to ‘find’ three members for each hearing as more and more appeals are being brought.

The report is certain in its conclusion that a two-person panel is just as capable of giving a judgment of good quality as a three member panel. There are also checks in place to ensure that, where three people are needed, they are available.

The most significant issue is the possibility that a two member panel disagrees and the whole appeal has to be reheard. This will cause delay to a child or young person who, no doubt, will already have faced real delays in the build up to the first hearing.

The real impact will only be known in time. The current sample and test period is relatively small. It is only with national roll-out that we will know the true impact of these changes.