Changes to SENDIST

 

INTRODUCTION
On 3 November 2008, SENDIST is going to become part of a new Unified Tribunal system under the leadership of the Senior President, Lord Justice Carnwath. The SENT (SENDIST) Regulations 2001 and 2002 will be replaced by The First Tier Tribunal (Health, Education and Social Care Chamber) Rules 2008.

The current President of SENDIST, Lady Rosemary Hughes, is taking a long planned retirement at the end of September 2008. Until then, she is being shadowed by a team of SENDIST Chairs. This team will be responsible for the judicial leadership of SENDIST until decisions are made about any replacement.

Procession House, the London HQ of SENDIST will also close in October and the administrative work will move to the Darlington office. It is expected that eventually all the administrative work will move to a central office in the Leicester/Loughborough area but this is not envisaged before April 2009.

THE UNIFIED TRIBUNAL
The Unified Tribunal system will bring together most Tribunals in a single structure that will function under two tiers. It is said that the aim of this reform is to create a more cohesive structure for tribunals and to lead to greater consistency in how cases are dealt with.

The First Tier Tribunal will consist of groups of tribunals called ‘Chambers’. SENDIST will be part of the provisionally entitled Health, Education and Social Care Chamber or ‘HESC’, with the Care Standards Tribunal (CST) and the Mental Health Review Tribunal (MHRT). The HESC will hear all SENDIST appeals against LEAs in England. (SENT Wales is not joining the first tier tribunal but their appeals will be to the Upper Tribunal). What this effectively means though is that SENDIST appeals may now be heard by panel members who may be more accustomed to sitting in other jurisdictions.

There is also going to be an Upper Tribunal which will hear appeals by those people wishing to challenge a decision if they consider there has been an error of law. The Upper Tribunal will become the normal route for appeals from First Tier Tribunals instead of them going to the High Court although it will use similar procedures when dealing with Judicial Reviews.

THE NEW RULES
The Tribunals, Courts and Enforcement Act 2007, which is introducing the new system is available for download at www.opsi.gov.uk. The Act imposes a duty on the Senior President to have regard to the need for tribunals to be accessible, proceedings to be fair and handled quickly and effectively and to explore and develop new methods of resolving disputes.

The HESC Rules set out the new general procedures and replace the current SENDIST Regulations. The Rules are still in draft form but say that they are intended to be easy and flexible to understand. Their ‘Overriding Objective’ is to deal with cases fairly, justly and to avoid delay, as far as possible, in consideration of the issues. The Tribunal Procedure Committee is still consulting on the first draft Rules.

CONCERNS
However, there have already been many concerns expressed by SEN organisations and other SENDIST users that the SENDIST appeal procedure is going to become more complicated and ‘legalistic’. Interested parties, such as the National Autistic Society and IPSEA have been involved in the consultation process and their views can be seen at http://www.autism.org.uk/sendist and http://www.ipsea.org.uk/tribunal-rules-08.htm .

For example, under the new Rules,  parents will still put in their appeal and the LEA will be required to reply within a given period but the case will then be subject to a ‘Case Management’ stage by a single Tribunal Chair (or ‘Judge’ as they will be known. Amongst the changes suggested has been the reduction in the time limit to lodge an appeal and the joint appointment of a single expert, although who will pay for this is not yet clear. There will also be an introduction of ‘Case Management’ which will be a significant change and potentially changes to the rules on ‘Late Evidence’.

There will also be a ‘duty’ to cooperate with the Tribunal which means that SENDIST will have the power to require a parent to make a child available for examination or assessment by an expert. A failure to do so could be considered as a failure to comply with a Tribunal order and lead to the possibility of an adverse decision.

SENDIST say that the Senior President has recognised additional specific provision may be necessary for SENDIST applications. So he has asked for views on whether, and how, these (and any other provisions that might specifically be needed for SENDIST) could best be achieved, with the particular needs of users in mind.

There is a SENDIST Applications document which provides more details and which can be downloaded by clicking here. The document runs to five pages and contains a lot of detail. It is worth reading in full.

PRACTICE DIRECTIONS
SENDIST ‘Practice Directions’ are also needed alongside the HESC Rules to explain how SENDIST is going to work. The Practice Directions have been drafted by members of SENDIST but still need to be approved by the Senior President. It has been said that these will be out for consultation shortly for many months now!

However, the SENDIST’s website states that:

“Practice Directions will apply the Rules to the practice and procedure in our particular jurisdiction. They are intended to include:

1. excluding the whole of August and the period form Christmas to New Year from the definition of a ‘working day’
2. clear requirements about what additional information must be filed with the application and response
3. provision for the views of the child
4. details of the case management process the information required from parties
5. arrangements for submission of video evidence
6. specifying who can claim expenses
7. applications for costs

Guidance on how to appeal or make a claim will be revised, but we intend to keep the format of all documentation straightforward and easy to use. All Chairs will have the title ‘Tribunal Judges’, but will continue to sit with specialist members with experience and expertise in this area.

The purpose of case management is to ensure the right evidence is filed and the real issues are identified at the right time, within the existing 20 week timetable. This will contribute to improved decision-making and reduce the number of hearings that get cancelled at the last minute at inconvenience and expense to all.

The draft case management scheme provides for a preliminary hearing at about 10 weeks called a Case Management Hearing (CMH). This will be done by a single Chair either by oral hearing, or by telephone or simply by the issuing of standard paper directions. This will help parties sort out what they have agreed and focus on the issues that need to be determined by the Tribunal at the final hearing. The CMH will also finalise the date of the final hearing.”

At this moment it is difficult to comment on the draft Rules without the Practice Directions being available.

HEARINGS AND VENUES
For now, SENDIST appeal hearings are expected to be conducted in much the same way as they are now and any hearing that has started before the changes, will be heard in front of the same Tribunal and any directions, orders and time limits imposed before 3rd November will be expected to be adhered to.

In the medium term there are expected to be 59 national hearing centres/venues for the Unified Tribunals service. However, at this moment in time most of these centres are still at the planning stage.

4 September 2008

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