In the latest instalment of a continuing series, we offer advice on the issues that face solicitor-advocates


The Special Educational Needs and Disability Tribunal (SENDIST) - formerly the Special Educational Needs Tribunal - was established by the Education Act 1993. It has the power to determine parents' appeals against local education authority (LEA) decisions about children's special educational needs (SEN), as well as claims of disability discrimination in schools (see part IV of the Education Act 1996; part IV, chapter I of the Disability Discrimination Act 1995; and the tribunal's Web site, www.sendist.gov.uk).





Q. Where does the tribunal hold hearings?



A. SENDIST is based in London and Darlington. It has dedicated hearing facilities in London, but holds hearings throughout the country, often in hotels or conference facilities. Hearings normally last either half a day or a whole day, starting at 10am or 2pm.





Q. When might an advocate be instructed to appear before the tribunal?



A. Parents and LEAs may conduct the hearing themselves, or may appear and be represented by a legally or non-legally qualified person (see Special Educational Needs Tribunal Regulations, SI 2001/600 (Tribunal Regulations), regulations 12(6) and 16(1)).



Although parents often represent themselves, the legal framework surrounding SENDIST appeals is not straightforward and many prefer to instruct a solicitor or counsel on a fee-paying or, if available, pro bono basis. Local authorities are also increasingly using in-house or external specialist advocates, particularly when parents are legally represented.





Q. How do I prepare for a SENDIST hearing?



A. The advocate's role will, of course, depend on the stage at which instructions are given and the steps that have already taken in advance of the hearing. The advocate should first ensure that he has all relevant documentation. In SEN cases, this will include (depending on the stage at which instructions are received):

  • The decision appealed and supporting documents;


  • The notice of appeal (see tribunal regulation 7);


  • The parental and local authority written cases and supporting documents (see tribunal regulations 9 and 13);


  • Correspondence and other documents relevant to the appeal (including any reports or information concerning the child's educational needs or disability prepared after the filing of the written cases).




    • Before the hearing, the tribunal will prepare a paginated bundle to be used by panel members, parties and witnesses at the hearing. The advocate should obtain a copy of this as soon as possible.



    When representing parents, it is important to speak with them as soon as possible after being instructed, if only to let them know that matters are in hand. For parents, the experience of a SENDIST hearing is invariably a stressful one, and an advocate should ensure that parents are directly involved in the process of taking their case to tribunal. After all, parents know their child's abilities and needs better than anyone else. All advocates should explore with their client the possibility of avoiding a hearing through settlement or mediation (see section 332B of the Education Act 1996).



    If instructed at a late stage, the advocate should ensure that the tribunal is notified of the change of representative (see tribunal regulations 12(1) and 14(1)).



    The advocate should consider in particular:



  • Whether further evidence is required to be obtained or put before the tribunal (see tribunal regulation 33);


  • Whether any amendment is required to the notice of appeal or relevant statement of case (see tribunal regulations 9(2) and 13(3));


  • Whether any further directions are required - for example, particulars of a party's case, disclosure or the summoning of a witness to appear (see tribunal regulations 21 to 26).




    • A skeleton argument or chronology is likely to be useful only if the case involves a particularly complex point of law or factual matrix. It is more helpful to use preparation time to annotate the hearing bundle and to prepare: a list of issues to be determined by the tribunal (see tribunal regulation 32(3)); a checklist of areas of questioning for each witness; a mark-up of the relevant SEN statement showing agreed changes and matters in dispute (if relevant); and draft bullet points for closing argument in a form which can be amended as the hearing progresses.





    Q. How will the hearing proceed?



    A. Appeals will be heard by a panel of three, including a legally qualified chairman. Hearings are normally in private, and the right to attend is restricted, but may take place in public if the parties agree or the president of the tribunal orders (see tribunal regulation 30).



    The panel will conduct the hearing in the manner it considers to be most suitable for the clarification of the issues and the just handling of the procedures. It is obliged, so far as appropriate, to seek to avoid formality (see tribunal regulation 32(2)).

    At the beginning of the hearing, the chairman will summarise the procedure in straightforward terms. At this stage, any outstanding applications - for example, to admit late evidence - will be dealt with. The panel may adjourn to consider these matters.



    The chairman will explain the manner and the order in which the panel proposes to consider the issues. The parties' representatives should have the opportunity to respond. The key issues will then be considered by the tribunal sequentially, with the LEA being invited to present its case on each issue first, followed by the parents. Witnesses for both parties will be questioned principally by the panel members, but the parties' representatives will also have a limited opportunity to question.



    After all issues identified by the tribunal have been addressed, the parties are normally given the opportunity to raise any additional points before their representatives are invited to make closing submissions.



    At this point, oral advocacy skills come to the fore. The client's case on each issue should be briefly explained and supported by reference to the key evidence, documentary and oral. So far as possible, the other party's case should be summarised and rebutted. Legal issues - including any relevant legislation, codes of practice and case law - should be dealt with as concisely as possible, with sufficient copies of any key authorities being produced for the panel members to read.





    Q. When will the tribunal give its decision?



    A. The tribunal aims to give its decision within ten working days of the hearing, although this is not always possible. If the decision is unfavourable, there remains the possibility of review by the tribunal (see tribunal regulation 37) or an appeal to the High Court on a point of law.



    This column was prepared by the Solicitors Association of Higher Court Advocates (SAHCA). Send questions to Hilary Riddle by e-mail: hilary@hradmin.co.uk