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AIBU to think parents are disadvantaged at tribunal

(18 Posts)
inappropriatelyemployed Sat 27-Apr-13 12:40:49

You are absolutely right - the system is heavily weighted every step of the way in favour of the LA (although they see themselves as pitiful victims hmm). A Select Committee of the House of Commons, reporting in 2006 noted this and demanded change but nothing came of it. The Children and Families Bill will do nothing to change this.

So, the LA control the game entirely. But the panel should still really be independent. The fact that their job is to make a review of the case does not mean that the review should be done without independence or impartiality as this is a matter of due process let alone human rights.

In relation to human rights, the Gov says in their documents supporting the Children and Families Bill that Article 6 ECHR (right to a fair trial which requires independence and impartiality) does not apply to the SEN process as it says the process is not a determination of a 'civil right or obligation' as required to engage Article 6. I haven't investigated that but I would like to.

I think the problem is that lawyers don't take these challenges in the SEN context as they would in say the civil courts or the criminal courts. I don't know why but many education lawyers seem to be very unaware of human rights issues which might create positive arguments to refocus the debate on the child. The process instead is highly expensive and overly bureaucratic. Lawyers become too used to the crap and stop making a fuss. My own described our LA as 'one of the better ones' recently which was outrageous to hear when we face our third Tribunal in three years over crappily small bits of provision. LAs will just assume you won't fight the 'small stuff' like SLT support but this stuff can make a massive difference.

I think, as they say on Mad Men, 'if you don't like what's being said, change the conversation' grin!

We need to re-orientate the debate. I read a really interesting argument this week about what would happen if re-articulated 'Special education needs' into 'education rights'. We would have the 'education rights code of practice' and the Educational rights and disability Tribunal'. A subtle shift in perception but I can only see that it would help reframe the arguments.

Not to say this would make any difference immediately but challenging the system might wake the system up a bit!!

The Tribunals manage to function better when dealing with disability cases. Why? Possibly because we are talking of rights .

As I said, the panel was never supposed to be independent. It's a bit like a second opinion I suppose. In the very same way the panel will refuse as far is possible to discredit their colleagues 'professionalism' which is why we get Judges refusing oath swearing (as that would be like agreeing that LA profs might lie) and it is also why costs are very rarely awarded.

LA's are seen to have made a genuine case. And panels are becoming more and more sympathetic to the notion of cuts resulting in the lowering of the interpretation of the word 'adequate'.

KeepOnKeepingOn1 Sat 27-Apr-13 10:03:49

Star is right that parent go to tribunal because of LA incompetence. We have the hearing next week - no longer sure what I should be doing to prepare as we have FS to represent so I am not sure what my role is. The Youtube video shows an unrepresented tribunal.

The LA have made no attempt to communicate and despite submitting a position statement to Tribunal that they would amend parts 2 and 3 of the WD and submit to parents two weeks ago, we have not received any amended WD - in fact the only WD from the LA was submitted in January before they had carried out additional assessment.

The LA take the piss - they ignore the deadlines of the Tribunal. The lay members of the panel may be ex or current LA but employees of the tribunal service are not the colleagues of LA staff and are not peer reviewing them.

nennypops Sat 27-Apr-13 09:34:26

They seem to make no effort to ensure balance amongst the lay members. They seem to have a number of people who are current local authority employees, and it's not uncommon to find both lay members are either current or ex local authority. I can't understand how that's even allowed - surely they should at least try to demonstrate that justice is seen to be done?

CheeseToasty Fri 26-Apr-13 22:11:09

It surprising anyone wins at all.

I think it is still the case that parents are more likely to win but the gap is closing.

I think this is because SENDIST feel that it should be 50-50 to be fair (my own opinion) which doesn't take into account that probably 99% of cases that get to tribunal are BECAUSE the LA are neglecting their duty.

The judge is supposed to have final say but he'll be guided by his panel members and pretty much focus just on the law bits.

CheeseToasty Fri 26-Apr-13 21:59:42

Thanks starlight. Does the judge have final say or is it a joint decision.

One Judge (legally trained) and 2 lay people. By 'lay' they mean not-legal. They are expected to have understanding of SEN.

CheeseToasty Fri 26-Apr-13 21:51:00

How big is the panel?

It usually is. This is because the system is a bit like a peer review iyswim. The LA and tribunal are SUPPOSED to be on the same side, and the panel isn't supposed to be independent. They are supposed to be 'reviewing' their colleagues iyswim.

I don't understand why it can't all be done with written evidence anyway?

I know that SENDIST are trying to keep them all down to one day, so they hear stuff and then run out of time and then ask for written submissions to finish off instead of another day.

Why couldn't they just do that in the first place?

I suppose I know the answer for that. There is no way my LA would have had any wiggle room that way. The judge wouldn't be able to say 'we met the headteacher and thought she was impressive and will do right by ds so we'll leave all of his provision up to her' hmm

CheeseToasty Fri 26-Apr-13 21:37:16

I didn't realise the panel can be made of other la members.

CheeseToasty Fri 26-Apr-13 21:33:34

I really wish there was a way to change the system. What more can the witness bring to tribunal that is not in their report other than intimidate and contradict the parents. It's not fair that there will be 5 tribunal experienced professional against me who have no tribunal experience. My child would probably get more legal support if he broke the law.

Yes. Even with solicitors they are. The tribunal process is biased and becoming more so. The system is supposed to be one of 'peer review' so basically you get ex LA bods or even current ones from another LA as panel members.

SENDIST have recently stopped publishing the number of wins for parents and LAs which is a bit suspicious.

The 'informality' of the hearing means that parents can be emotionally 'done over' and the judge can refuse a parents request for swearing on oath because it is automatically assumed that the LA people will tell the truth as 'prefessionals'.

BUT, it is the only system we have, and it is the only challenge we have.

I think it is important to know that justice won't necessarily occur. Losing a tribunal unfairly can put immense strain on a family as not only have you not got for your child what they desperately need, but you have no recourse to complain about the tactics of the LA in the lead up as you are at an extreme disadvantage and will be accused of madness or sour grapes.

Having said that. I have appealed twice. The first I lost when asking for £23k, appealed again at AR to ask for £40k and settled.

Appealing registers your issues, will win you 'some' gains (hopefully relevant - not so in our case though impressive to the judge and expensive) and lays down the basic bones for the case you WILL one day win if not at this round.

I can also say that the first tribunal is the scary one. After that it is still hard work but a lot more 'meh'.

sweetteamum Fri 26-Apr-13 20:11:52

YANBU

I'm one of those parents who is really struggling to get the case together. I always crack under pressure, especially at meetings. Our case will almost certainly go to tribunal. We don't have the money etc for legal advice. It's so disheartening and I can understand why some parents can't go further.

cansu Fri 26-Apr-13 19:39:35

Yes they are. I also feel angry on behalf of those parents who can't afford solicitors and don't have the skills to prepare the case themselves. I did the case myself but I spent hours on the paperwork and was also able to argue effectively against the LA. if you can't do this or have difficulty with writing then you are at a massive disadvantage. Most cases get nowhere near tribunal as parents can't prepare the case or can't face it. After doing one for dd, I swore that I would never do it again as the stress took such an emotional toll. I went back on my decision for ds sake but it was very very difficult. I felt like I had opened my own legal offices in the spare room!

CheeseToasty Fri 26-Apr-13 19:09:45

I feel that it is unfair that the la can spend so much money bringing witnesses to tribunal when quite often parent can not afford to especially after often spending hundreds on private reports.

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