Huge leap in SEND Tribunal case delays
13th June, 2023
The SEND Tribunal is one of the chambers of the First-tier Tribunal. In addition to hearing various types of appeals in relation to Education and Healthcare Plan (EHCP) decisions, it also hears disability discrimination cases brought against schools on behalf of disabled pupils.
Whilst SEND Tribunals do not have the power to order financial compensation, they have a wide range of remedies at their disposal and they are viewed as key to ensuring that the needs of SEND pupils are adequately met. The SEND Tribunal is modelled around being able to resolve cases practically and swiftly, adopting a less formal approach to proceedings than other courts or tribunals such as not ordering witness statements to be exchanged.
Central to this public policy is being able to process cases quickly. The target for the SEND Tribunal is to hear a disability discrimination claim within 20 weeks of registration, or quicker in certain cases (such as 6 weeks for appeals against permanent exclusion from school).
Unfortunately, these targets appear to be increasingly unrealistic. The recent statistics revealed a 38% increase in the backlog of SEND Tribunal cases, with an astounding 80% of hearings being postponed in the first quarter of 2023 (with judicial availability being amongst the reasons cited). Given the significant increase in both EHCP and disability discrimination appeals, it is difficult to see how this trend is likely to be reversed in the foreseeable future.
One of the complicating factors in this respect is the upcoming summer holidays for schools. SEND Tribunal cases can only be listed for hearings in the month of August with the agreement of the parties, which is not always forthcoming particularly as witness availability is more likely to be an issue at this time of year. The situation may well get worse before it gets better.
Whilst the hearing timescales in the SEND Tribunal still compare favourably to many other parts of the courts and tribunals system, the reality that the SEND Tribunal deals exclusively with cases where there are concerns that the needs of a child requiring additional support are not being met. Whilst there is a desire to avoid delays across all parts of the justice system, there is a particularly strong need for this in SEND Tribunal cases.
Our expert team of education lawyers can help you with any matter relating to SEND Tribunal claims or any other aspect of education law.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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