SCN0693

Written evidence from Judge Ward

1. The Upper Tribunal (Administrative Appeals Chamber) hears appeals, on a point of law only, from the First-tier Tribunal (“FtT”) (Health, Education and Social Care Chamber) in cases involving Special Educational Needs and Disability.

2. As with a number of other specialist topics, cases are handled by a limited number of judges within the Chamber and are co-ordinated by a lead judge.  As that lead judge I see – to varying extents – all cases in this field which come in to the Chamber and have fulfilled this role since 2009.  What follows unless otherwise indicated is based on private records I maintain for my role as lead judge and so I speak in terms of general trends only.

Are there any patterns or themes from SEND Tribunal cases since 2014?

3. The number of SEND cases reaching the Upper Tribunal (“UT”) is relatively small.  Published statistics[1] suggest that the percentage of appealable decisions appealed to the FtT has varied between 1.2% and 1.6%. The cases before the FtT, which in the period from 2014 have ranged between 3126 in 2015 to 4988 in 2017[2] (not all of which will have resulted in decisions appealable onward to the UT), have resulted in between 57 and 88 cases annually reaching the UT.  This is a very small proportion of decisions taken by local authorities.  An increase in the workload of the FtT has not resulted in an increase in the workload at UT level.

4. The cases before the UT fall into two broad categories: (a) “facts and reasons” challenges, where a party seeks to establish that the FtT failed to deal adequately with the material before it or to explain its decision to a legally adequate standard; and (b) decisions providing interpretation of the relevant legislation.  Given the UT’s status as a superior court of record, whose decisions are binding on the FtT and on local authority decision makers, the latter category has greater significance beyond the particular case, important though the former is to the parties involved.

5. The most common themes to arise in cases before the UT include the following, but the numbers are low and may be of limited statistical significance:

a)    The sufficiency of justification for residential educational placements

b)    Issues around the boundaries of health, education and social care provision

c)     Inclusive education

d)    The balancing of resources and the child or young person’s needs

e)    Poor mental heath/refusal to attend school

How are parents represented? Has there been an increase in parents being represented by barristers?

6. In some cases the party challenging the decision will be the young person rather than the parent; where “parent” is used below, it encompasses “young person” where appropriate.  The young person may be represented by a parent, in which case I consider the parent as a lay representative for present purposes.

7. In between ¼ and ½ of SEND cases in the UT, parents represent themselves.  There are also established lay representatives operating in the sector, some paid and some using volunteers; some may even be legally qualified, but not be in legal practice.  This group (also including family members) accounts on average for around 15% of representation.

8. The involvement of legal advisers is a complex issue.  Most such involvement is on a paid basis, including via legal aid for those who qualify for it.  However, some firms or individuals act pro bono.  Legal advisers may not have conduct of a case throughout, in some cases parents will do what they feel they can and then bring in a legal professional for particular parts, such as attending an oral hearing.

9. Inasmuch as it relates to (specifically) barristers, the question is difficult to answer. Some UT cases are dealt with entirely on the papers, while others require hearings.  Even in cases on the papers, barristers may have been involved in drafting grounds of appeal and other submissions, but solicitors will often undertake such work themselves.  Barristers are more likely to be instructed for oral hearings, but there are experienced solicitor advocates who also appear.

10. In terms of broad trends, there has been an increase in the proportion of cases in which legal professionals have been involved on behalf of parents, from a little over 40% in 2014 and 2015 to between 50 and 55% in subsequent years.

How are local authorities represented?  Has there been an increase in local authorities being represented by non-in house counsel?

11. This information is not fully recorded.  Local authorities vary in the arrangements they make for their representation in UT proceedings.  At paper stages, some will regard it as a matter for their SEN Team within Education/Children’s Services, others as one for their in-house legal team, or they may outsource the case to external legal advisers.  It is rare for local authority in-house staff of whatever professional discipline to represent the authority in oral hearings before the UT.  Such representation is generally undertaken by external solicitors where instructed or by barristers.  That has been so throughout the period with which the Committee is concerned and thus there has not been an increase.

Has there been an increase in cases being conceded before the case goes to court?

12. No. The numbers of cases that are:

(a) withdrawn before an application for permission to appeal has been considered;

(b) withdrawn after permission to appeal has been given; or

(c) settled by agreement

have been very small throughout the period under consideration.

Does the judiciary have the capacity to deal with the number of cases and provide access to justice for all who take a case to Tribunal?

13. The existing number of UT judges available to take SEND cases is sufficient to handle the current volume of cases or a limited increase.  This is subject to two caveats. First, it assumes that parties continue to have access to appropriate representation in the same proportions as at present.  The emotionally charged nature of the subject matter and the extensive documentation typically involved place considerable demands on litigants in person, on top of parenting a child who may have significant disabilities, and not all are equally able to handle it.  The inquisitorial nature of the jurisdiction means that a judge may need to step in, with implications for the time the case will take. Secondly, one cannot lose sight of the fact that a child with an EHC Plan will in any event have an annual review of the Plan, conferring fresh rights of appeal.  There are cases which, to maximise their utility, need to be decided on an expedited timescale. The UT receives surprisingly few requests for expedition and is able to accommodate those that do occur. Again, a limited increase in such requests could be accommodated but a substantial increase might have some adverse effects on the time taken on other types of case.

The Committee has heard that the system has become more adversarial – in your view, could this be because the legislation has been drafted in such a way as to create such a system?

14. It is not clear what is being said here.  Is the “system” the whole system of provision for children and young people with SEND or the system of adjudicating on disputes through tribunals?  If the former, the premise concerns questions of the SEN practices of local authorities and the approaches of parents and their representatives on which it is not for the UT to express a view.  If the latter, at Upper Tribunal level the system has not become more “adversarial” in either of the two senses in which the term might be being used.  In the legal sense the jurisdiction of the UT, like that of the FtT (SEN) is not “adversarial” but “inquisitorial”, so a judge will not necessarily be constrained to adjudicating on the submissions put to him or her but may follow independent lines of enquiry. If “adversarial” is being used in a more general sense i.e. are cases being keenly contested, then yes, but there is no evidence to suggest that that has changed in the UT. It is very unusual, for instance, for the UT to have to take the sorts of actions which might suggest a party was being wholly unreasonable, such as striking out, or making an award of costs.

15. It is undeniable though that the legislation does create a rights-based system, where if provision is included in an EHC Plan there will be an enforceable right to it[3],but not otherwise.  That was the intention when the SEN regime was set up and remains the position.  It is perhaps unsurprising that parties should seek to enforce those rights or, where they are considered inappropriate, to resist them being conferred.

Are all cases about special educational needs and disabilities taken to Tribunal about Education Health and Care Plans?  If not, what else comes before the Tribunal?

16. All the SEN (in the narrow sense) cases relate in some way to an EHCP, though some may be at a pre-EHCP stage e.g. does the child or young person require an assessment?

17. SEND cases do however also encompass litigation under the Equality Act 2010 concerning disability discrimination in schools. Roughly 1/7 of the SEND cases in the UT are of this type.  Often they raise questions of keen importance to the family involved and may be hotly contested, even where the pupil concerned has moved on elsewhere and even though the range of remedies available is extremely limited.

18. Some cases within this jurisdiction do raise issues of wide importance to society: a recent example is C and C v The Governing Body of a School and others [2018] UKUT 269 (AAC). It examined whether pupils whose disability manifested itself in a tendency to physical abuse were validly excluded by delegated legislation from the protection of the Equality Act, and received wide press coverage. The Secretary of State for Education and the National Autistic Society were also parties.

To what extent is consideration given to the efficient use of resources in judgements?

19. Resources are relevant in two main ways. First, because in a number of places the legislation requires them to be taken into account in decisions regarding SEND and the Upper Tribunal applies the law.  Secondly, there are areas where the Upper Tribunal has a discretion, to the exercise of which resources may be a relevant consideration.  I address each in turn.

20. Statute makes resources highly relevant to, for instance, whether or not a local authority is required under Children and Families Act 2014, s.39(4).to name in the EHC Plan a school specified in a legally compliant request by the parent.  Further, section 9 of the Education Act 1996 creates a duty on local authorities (and so the FtT when standing in their shoes) to “have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”

21. As noted above, whether the FtT acted lawfully in its balancing of resources and a young person’s needs is a theme which features reasonably often in the UT’s caseload.

22. In relation to the second category, procedural steps such as whether to give permission to appeal to the UT, or whether, if an error of law has been found in a decision of the FtT, that decision should be set aside, are discretionary decisions.  Whether there is utility in the litigation being permitted to go further may well involve consideration of the resources of the parties, whether it is a question of requiring hard-pressed parents to participate in further litigation or a local authority to deflect part of its budget from other issues in order to do so.

March 2019