Please find below a list of frequently asked questions and there answers. Click on the question to expand the answer.
Why it is Advisable to have legal help and what will a Solicitor do?
It is ultimately up to you whether you represent your own case or seek professional representation by a solicitor/barrister (There are also lay representatives who have no legal qualifications). There is no legal requirement either way, and it is certainly not the case that Tribunals prefer parents to represent themselves. Parents are entitled to represent themselves if they wish but should be aware that Local Authorities are represented either by an Officer of the Authority, a solicitor usually from the Local Authority’s Legal Department or a specialist Barrister in the field of education law on the basis that is extremely productive in terms of outcome. Our experience suggests that the more expensive the provision sought by the parent, the more effort the authority will make in contesting the provision sought by the parent. Expensive placements are rarely straightforward appeals. Our experience suggests a direct relationship between the cost of the provision sought and the effort with which the Local Authority will contest the appeal. The former President of the SENDIST Tribunal, His Honour Judge Simon Oliver, has publicly commented on the fact that unrepresented parents generally have difficulties presenting their own cases, due to the complexities involved, and often find the Tribunal process very daunting. On this point, Brian Lamb OBE, the chairman of the Special Education Consortium and author of the Lamb Inquiry into Special Educational Needs and Parental Confidence (a government enquiry) commented on 19th January 2010:
“Unrepresented parents are unable to properly handle the Tribunal system”.
The SEND Tribunal hearing is ultimately a formal judicial process, work is done on the basis of evidence and complex law and the presence of solicitors and barristers, especially those who specialise in education law, who will fight your corner and apply their knowledge and experience, can make a massive difference in terms of prospects of success. You may feel more confident if you have some help and moral support and are able to match the Local Authority’s firepower with your own. All judicial systems are evidence based and in most cases Local Authority cases will be supported by evidence from their own Educational Psychologists and NHS Therapists and in some cases lawyers (solicitors and barristers) will present the Authority’s case against the parent.
If you intend to use a solicitor, then you should certainly choose one that specialises in Education Law. In terms of lawyers, the day of the all-rounder is long gone. As in medicine, where you would not expect a consultant in rheumatology to undertake brain surgery, you would not expect a conveyancing specialist or a personal injury lawyer to conduct a Special Educational Needs and Disability Tribunal (SENDIST) appeal.
There are also lay representatives; some of them have impressive websites. Lay representatives are not lawyers and they are of variable quality. They are not regulated by any professional body. This summer, as in other years, we have had a flow of new clients who have lost their Secondary Transfer Appeals, using lay representatives and some of them were the better lay representatives too. When faced with a distraught and crying parent, it does not help to point out that there is a lot of truth in sayings such as:
- You get what you pay for
- You don’t get ought for nought
- There is no such thing as a free lunch
When choosing a solicitor for an Education Law issue, the questions you should be asking are:
- How many appeals to the SEND Tribunal does the practice undertake per year?
- What is the success rate for the practice?
- Does the firm actually specialise in education law, or is this one practice area amongst many?
- Does the practice come independently recommended by, for example, a parents or support group?
- What level of experience do the individual practitioners have in education law?
- Does the Practice ever undertake work for Local Authorities?
If you are considering a lay representative I suggest that you ask similar questions.
Whilst instructing a specialist solicitor can be expensive, it is important to bear in mind the comparative nature of costs. Education is an expensive commodity, and if you were to calculate the number of years you child will be in education by the sum of money to be paid each year in school fees and other related costs, the sum reached is often in the region of £200,000 – £300,000, although it can reach over £750,000 in very complex cases. The price spent on a specialist solicitor to ensure your child receives an adequate standard of education will be, relatively speaking, far more modest. If you were injured in a car accident, you would expect to use a highly specialised team of personal injury lawyers and good expert evidence to obtain a similar level of damages. The same principle can be applied in the education context: to achieve a desired result, in the long run it pays to engage with specialist lawyers and experts which will improve your prospects of success.
SEN Legal Ltd’s current success rate is 96% (this figure includes appeals conceded by the Local Authority before the hearing). This year’s figures are broadly similar.
What is the Special Educational Needs and Disability Tribunal, and what matters does it deal with?
SENDT is an acronym for the Special Educational Needs and Disability Discrimination Tribunal. It used to be a stand-alone tribunal, but as of 3rd November 2008 it became part of the Tribunal system of England and Wales. The Tribunal Service is comprised of two parts: several First-Tier Tribunals dealing with specialist areas and the Upper Tribunal.
Appeals start off in the First-Tier Tribunal, and further appeals on points of law move up to the Upper Tribunal. The Upper Tribunal replaces the High Court. Any appeal from the Upper Tribunal goes direct to the Court of Appeal.
The SEND Tribunal has jurisdiction to hear appeals on the following matters relating to Special Educational Needs (SEN):
- Decisions of Local Authorities to not carry out a Statutory Assessment;
- Decisions of Local Authorities to not issue a Statement of Special Educational Needs or an EHC Plan;
- Decisions of Local Authorities not to amend a Statement or EHC Plan following a re-assessment;
- Decisions of Local Authorities not to amend a Statement or EHC Plan following an Annual Review;
- Decisions of Local Authorities to cease to maintain a child’s Statement or EHC Plan;
- Where the Local Authority has made a Statement or EHC Plan, but the parents disagree with its content;
- Where the Local Authority refuses to change the school named on the Statement or EHC Plan.
The SEND Tribunal can also hear cases on the following matters relating to Disability Discrimination:
- Decisions relating to admissions;
- Decisions relating to education and associated services (namely, all aspects of school life and teaching);
- Decisions relating to exclusions.
The Special Educational needs and Disability Discrimination Tribunal cannot hear cases on any other matter besides those mentioned above.
SEND Tribunal proceedings are Judicial Proceedings. If you decide to submit an appeal, the panel will ordinarily be comprised of 3 people (unless it is a Refusal to carry out a Statutory Assessment). The Chairperson is a lawyer and carries the status of a County Court Judge. The appointment is made by the Judicial Appointments Commission. The other Panel Members will be lay members but will have expert knowledge of Special Educational Needs. The Tribunal is completely independent – it is in no way bound by any decision or policy of a Local Authority, a school or parents.