SENDIST Briefing Note - 22 October 2008

Following the second newsletter last Friday, it has become clear that we need to address a number of concerns expressed by service users who have heard ill informed rumours.   It is very important that you have accurate information about what is happening to SENDIST and we hope this will provide the facts you need. 

It is our view, supported by leading  service user groups, that a number of the changes may well be of benefit to users and it is far better to introduce the changes, give them time to bed down and make any necessary adjustments in the light of experience.

The Tribunal’s ethos

We are not going to change the way we approach SENDIST appeals and claims and we will not undermine the principles on which this tribunal currently operates, which are designed to make this tribunal accessible, particularly to those who are not legally represented. 

Our decisions must be legally sound and based on good practice, but wherever possible we will avoid being so legalistic that we confuse or discourage people.

Therefore, our aim in working with colleagues and service user groups on the new Rules, Practice Directions and Case Management system has been

• To keep what works for SENDIST in the interests of the child.
• To keep the processes as accessible and as user-friendly as possible
• To streamline the processes to ensure, in the child’s interests, the right information is obtained, and provided, by both parties as early as possible to help them prepare their cases well and encourage settlement of cases where appropriate
• To test the processes on a live case or cases before introducing the new case management system
• To keep all the changes under close scrutiny and make any necessary alterations as quickly as possible.  

We will be updating the list of frequently asked questions on the SENDIST website to deal with the issues that users are concerned about, with factual answers and full information.  

But there are 4 key points we want to clear up now:

Transitional arrangements

We intend to exercise the power to disapply the new Rules to cases currently proceeding.   This means

• ALL cases registered before 3rd November will continue to operate under the old Regulations until a decision is issued or the case is otherwise disposed of.  
• NO party can apply for anything contained in the new Rules if the case has already been registered because the new Rules will NOT apply to any case that will be heard after 3rd November.
• If any party asks for an adjournment so that they can take any step contained in the new Rules we will not agree and the application will be referred to one of the judicial leads for that to be confirmed.

The new Rules will apply to those cases registered on or after 3rd November and we estimate that the earliest these cases will be heard will be mid-March 2009.

There is a new process for appeals from SENDISP decisions to the Upper Tribunal, rather than to the High Court.   This process will apply to any case heard after 3rd November or where a decision was not sent out until after 3rd November.

We will be producing an appeal/review flow chart as soon as possible to help you understand the process.

Assessments

• Under the current Regulations, the Tribunal can only encourage parties to provide the most up to date evidence possible from assessments by professionals such as Educational Psychologists, speech and language therapists etc.   If one party refuses to cooperate, the Tribunal is faced with having to base its decision on what may be incomplete evidence, with potential distortion to decision-making for children.   But no-one is going to use the new Rules to force any child to undergo an assessment against his or her wishes or without parental consent.  Where there are sound reasons for refusal, the Tribunal is very unlikely to make a finding adverse to a party’s case. For more information, see the note on Rule 15(4) on the website.

Case management: 

This is designed to streamline appeals to help parties obtain the right information at the right time.   This should help them prepare their cases and help the Tribunal reach appropriate decisions in the interests of the child that are based on full information.  It is also designed to help the parties identify the issues as early as possible so they can reach a settlement when appropriate, thus avoiding the need for a hearing.

Most cases will be initially scrutinised by a Chair without the need for the parties to attend an additional hearing.  

We should like to clarify the statement in the Newsletter that appeals against Parts 2, 3 and 4 of a statement would “almost certainly” have an oral directions hearing – it will only be in complex cases that a preliminary hearing will be needed.

Costs:  

We are unlikely to change the current practice of rarely awarding costs and the threat of costs must not be used to deter people from appealing or making a claim.

We hope this helps to dispel the rumours and help you to understand what we are trying to do.  

If you have any further queries please do not hesitate to contact us through Simon Oliver at simon.oliver@judiciary.gsi.gov.uk "

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