As many of our readers will have seen online, parental appeals which are currently being submitted to the SEND Tribunal are being returned with hearing dates in September 2023. At the time of writing, the most recent listing we have received is 18th September 2023, with the date for serving all of the evidence in the appeal listed for August 2023. The Tribunal are currently operating a 50-week timetable.
Understandably, this is causing extreme concern for parents and users of the Tribunal alike. How can it be just for a parent to have to wait nearly 12 months for their Appeal to be heard to resolve disputes concerning their child’s education? The simple answer is that it is not. However, the Tribunal is clearly struggling to cope with the demand for hearing dates which is increasing to over 13,000 appeals a year, with limited Judges and Panel members available to hear the appeals, but the situation is unacceptable.
A further concerning point is what will happen for parents who are left with a dispute when it comes to phase transfer next year. If hearing dates are being listed for September 2023 now, where will they be when these issues arise next year?
Fresh from the User Group meeting held on 13th October 2022, the Tribunal have confirmed there are dates available in April, May, June and July for these Appeals to be heard. Therefore, this should, ‘in theory’, resolve the issues with phase transfer dates. It has also been confirmed if all of these dates are not taken up, the Tribunal will bring other appeals forward. A slight relief for many, but it still leaves lots of families facing considerable delay.
What can be done about this?
Two obvious answers spring to mind:
Local Authorities stop making absurd decisions in the first place and reduce demand.
The Tribunal return to shorter timetables and list cases sooner. Both unlikely to happen anytime soon, especially point 1.
However, we have set out some useful practical points below which may assist you when having to navigate these delays.
1 - If you are awaiting a decision from your Local Authority to obtain your right of Appeal to the SEND Tribunal, you must obtain this as soon as possible so you can get your Appeal in to the Tribunal. There are no signs at this time the Tribunal will be listing hearing dates anytime sooner, particularly if you are not a phase transfer case, so you must act with speed. A Pre-Action Protocol Letter will resolve this if the LA have missed the deadlines. (please see newsletter from February 2021 with further advice on this).
2 - You must ensure your phase transfer review meetings are being held now if they have not already been done so. If your phase transfer review has not been held already or is not due to be held in the coming weeks, it is very likely your Local Authority will miss the phase transfer deadlines (please see our November 2020 newsletter for advice on phase transfers reviews).
3 - We understand the Tribunal are listing cases in what they deem priority order. Priority at the Tribunal will include children who will be without an educational placement whilst the Appeal is ongoing. Parents can make a request to the Tribunal via a Request for Changes to bring the hearing date forward setting out the reasoning as to why the case is urgent and a priority. The Tribunal has confirmed these hearings will be heard earlier.
4 - Tribunal hearings that are being requested to be considered on the papers only are being considered sooner than those that a require a live hearing. With a paper hearing you will not attend the Tribunal and a decision will be made by the Tribunal on the papers within the Bundle alone. Whether it is advisable to proceed with a paper hearing needs to be considered very carefully and you should take advice in respect of this. However, it is an option to consider.
5 - If your child is to be out of education for some time whilst the appeal is ongoing and the Local Authority are not offering any support, they may be falling short of their duties under Section 19 of the Education Act 1996. If your child is unable to attend school due to exclusion, mental health difficulties or other reasons, the Local Authority have a duty to provide a suitable alternative education. You can enforce this right.
If you need assistance or advice on any of these issues, please do get in touch.