Anyone going to Tribunal?

[Sally44]

I have recently been telephoned by a company conducting a survey on behalf of the SENDIST process to ask me about my own experience of using the tribunal service. It made me aware of something that others more knowledgeable might be able to comment on.

I went to tribunal with a solicitor, private reports and an expert witness.

When we and the LEA/school rep went in to meet the Panel, they asked the LEA if they were intending to keep to the Code of Practice and they said yes. The LEA capitulated and said they did not want to contest anymore. So we were instructed to go into a separate room and thrash out the details and not come out until we had an agreement. In this way we got an immediate result. The LEA agreed to everything we were asking for, but the finer details and wording were decided in that small room between the LEA and my solicitor. As we dealt with this outside of the Tribunal, the Panel did not get to comment or make their opinion on anything.

That made me wonder.

It is well documented that LEAs force parents to go to tribunal as a way of weeding out those who don't feel capable of going through the procedure, or who feel they don't have the financial ability to enable them to get legal advice or private reports. So those that do continue either have representation or are doing it alone. Then when they have forced remaining parents through the financial and emotional cost of getting to tribunal the LEA frequently capitulate and the Statement is settled without going through the Panel process.

Any parents going to tribunal on their own, could find themselves in a vulnerable position if this happens to them because when the process goes through the Panel the Panel has to read all the documentation and makes recommendations. If the LEA capitulates and go into discussions with just the parents I feel there could be a risk that parents will not have the expertise to know what to be arguing for and may still find themselves coming away with a Statement that would have been stronger if it had been awarded by the Panel.

What do others think? And can you come up with any suggestions on what parents can do, especially any that have a tribunal date coming up. Even if an LEA capitulates can a parent still ask that it goes to Panel so that they advise and make recommendations. Is it better to avoid Panel. And what can a parent do if they find themselves in private discussions between themselves and the LEA?

[Kathryn]

In some appeals (e.g. refusal to assess) if the LA gives in, the parent automatically wins and the appeal ends, but obviously you have in mind an appeal against any or all of parts 2,3 and 4 of the statement where the details are open to negotiation.

 

Yes LA's have a habit of giving up just before the hearing or at the hearing itself. However the new case management system, with the emphasis on continual negotiation, should make it harder for LA's to play this game. They can no longer just sit on the appeal until the last minute but must respond early in the proceedings to the parents' case stating clearly the grounds for their opposition. And the tribunal now has the power to award costs against timewasting LA's! So the process may improve for parents - too early to tell yet but we shall see!

 

Parents should have a clear idea of what they want in the statement and after taking advice, should be as specific as they can about the changes they want to wording of the statement. Nothing wrong with negotiating with the LA throughout - it is recommended that an electronic copy of the statement: a "working document" is used to record changes wanted and amendments agreed. The tribunal panel will expect to see such a work in progress and it is far better if as many amendments as possible can be agreed before the day. But nobody can force the parent to withdraw their appeal, and even if some progress has been made, the parent can still continue to the hearing to sort out those bits of the statement they are unhappy about.

 

I can't comment specifically on your experience Sally, it's an interesting point you raise. Perhaps the panel left you to get on with it because you were well represented, where they might have been gentler with a parent on their own and made sure they weren't put at an unfair disadvantage? A tribunal panel will not rewrite the statement in detail anyway - that's not their job. The finer points will still have to be thrashed out between the parents and the LA.

 

K x

[Sally44]

In some appeals (e.g. refusal to assess) if the LA gives in, the parent automatically wins and the appeal ends, but obviously you have in mind an appeal against any or all of parts 2,3 and 4 of the statement where the details are open to negotiation.

 

Yes LA's have a habit of giving up just before the hearing or at the hearing itself. However the new case management system, with the emphasis on continual negotiation, should make it harder for LA's to play this game. They can no longer just sit on the appeal until the last minute but must respond early in the proceedings to the parents' case stating clearly the grounds for their opposition. And the tribunal now has the power to award costs against timewasting LA's! So the process may improve for parents - too early to tell yet but we shall see!

 

Parents should have a clear idea of what they want in the statement and after taking advice, should be as specific as they can about the changes they want to wording of the statement. Nothing wrong with negotiating with the LA throughout - it is recommended that an electronic copy of the statement: a "working document" is used to record changes wanted and amendments agreed. The tribunal panel will expect to see such a work in progress and it is far better if as many amendments as possible can be agreed before the day. But nobody can force the parent to withdraw their appeal, and even if some progress has been made, the parent can still continue to the hearing to sort out those bits of the statement they are unhappy about.

 

I can't comment specifically on your experience Sally, it's an interesting point you raise. Perhaps the panel left you to get on with it because you were well represented, where they might have been gentler with a parent on their own and made sure they weren't put at an unfair disadvantage? A tribunal panel will not rewrite the statement in detail anyway - that's not their job. The finer points will still have to be thrashed out between the parents and the LA.

 

K x

 

I did wonder if they did this as I was legally represented. Because for a parent that isn't represented, and who is expecting the Panel to help them to achieve the right result by reading the evidence they have put forward; if the parents then find themselves in a situation where they alone have to negotiate the final finer details (and the ones that go to tribunal are usually the important ones ie. placements, therapy input etc), then a parent could find themselves at a disadvantage. And being cynical as I am about this topic, I wondered if LEAs even used this tactic as a final one to try to isolate the parent from any support or representation that could help the parent achieve their goal. And I certainly did not expect the LEA to throw in the towel at the final hurdle, but I now find that that is a common occurance. I think those changes you talk about should go some way to stopping that.

[PinkSapphire]

I took our Lea to tribunal without private reports or legal representation and won!

It was against refusal to assess and even though we won hands down the LEA still refused a statement and gave us the ever pointmess note in lieu, we were all set to take them back to tribunal again (had date, sent papers etc when I proved to the LEA they were actually breaking laws and they backed down.

Then I had to argue with them through 2 propsed wishy washy statements untill we finally had the statement water tight, we were then refused the school we wanted and the LEA tried to push us into a school we did not want and had to fight to get the school we wanted.

 

We got there in the end and tomorrow is our sons year 9 transisiton (going into year 10 review and I am terrified yet again that we will be facing another battle to keep it as I know we cannot trust the LEA.

[Sally44]

I took our Lea to tribunal without private reports or legal representation and won!

It was against refusal to assess and even though we won hands down the LEA still refused a statement and gave us the ever pointmess note in lieu, we were all set to take them back to tribunal again (had date, sent papers etc when I proved to the LEA they were actually breaking laws and they backed down.

Then I had to argue with them through 2 propsed wishy washy statements untill we finally had the statement water tight, we were then refused the school we wanted and the LEA tried to push us into a school we did not want and had to fight to get the school we wanted.

 

We got there in the end and tomorrow is our sons year 9 transisiton (going into year 10 review and I am terrified yet again that we will be facing another battle to keep it as I know we cannot trust the LEA.

 

It is a nightmare isn't it, especially when you've had such negative experiences in the past. You just know it isn't going to be easy. Did you use the NAS or IPSEA at all?

I think, having been through the process once, that I would feel more confident doing it myself the next time, because I simply cannot afford to pay again.

Does your Statement contain quantified provision for any therapy or professional input? I found I was forced to get private reports because LEA and NHS professionals firstly refused to do comprehensive assessments and therefore didn't even find all of his needs, and then would not say how my son's needs should be met and by whom in terms of hours and staffing provision. When two LEA employees did break rank with the LEA and one of them confirmed to me in writing that my son needed a dedicated educational environment, the LEA still refused saying he could remain mainstream.

The reason I was posting was because when we got to tribunal the LEA capitualated after about 10 minutes and that made me wonder why the LEA did that. From my experience that would have been something they did because it worked in their favour. And that made me think that if I had not been represented and had had to go into negotiations with the LEA on my own, that the LEA might have done that because they could hoodwink me and get me to sign a Statement that the Panel would not have allowed. But now that there appears to have been changes in the process, it is going to be far less likely for LEAs to go to tribunal and then capitulate if parents can then claim legal expenses.