Proposal to amend the Practice Statement regarding panel composition in the First-tier Tribunal (SEND)

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Conclusion of the pilot to test the composition of a panel in the First-tier Tribunal (Health Education and Social Care Chamber)

Background

In January 2013, the then SPT (my predecessor, Sir Jeremy Sullivan) published a consultation seeking views on the proposal to change the composition of panels in the Special Educational Needs and Disability jurisdiction [SEND] of the Health, Education and Social Care Chamber of the First-tier Tribunal.

The proposed change to the Panel Composition Practice Statement aimed to strike the necessary balance between providing judicial resources more flexibly and tailoring the composition of the panel to the complexity of the case.

Respondents to the consultation raised a number of concerns, in particular about the complexity of cases. There was also a suggestion that evidence did not yet exist to demonstrate that smaller panels would offer advantages or be able to maintain the same standards of decision making.

A pilot scheme was set up to test the approach to introducing greater flexibility with panel composition in SEND appeals. It began in October 2013 and concluded in March 2014 and was restricted to appeals against a local authority’s refusal to assess cases [RTA]. The judges and members sitting on the two person panels had considerable experience (having sat on at least 25 hearings within the jurisdiction.)

At the end of the pilot, Sir Jeremy concluded that the Panel Composition Statement should be amended as follows:

“A decision that disposes of proceedings, made at or following a hearing, must be made by

  1. One judge and:
  2. Two other members where each other member has substantial experience of educational, child care, health or social care matters.
  3. In appeals concerning refusals to arrange an assessment of a child’s Special Educational Needs, the decision may be made by one judge and one other member where the other member has substantial experience of educational, child care, health or social care matters and both the judge and member have sat on at least 25 hearings within the jurisdiction.”

At the end of the pilot, Sir Jeremy extended the process to all RTA cases in the SEND jurisdiction on a permanent basis with immediate effect. (See the conclusions document published on 21 July 2014). He further considered that the pilot principles should be extended, to test the approach to introducing greater flexibility in panel composition in all case types in the SEND jurisdiction in a further six month pilot.

Sir Jeremy (in recognising the concerns raised by those responding to RTA pilot consultation) acknowledged that case type does not necessarily determine complexity. He therefore proposed an alternative approach, leaving decisions on panel composition to the discretion of SEND Judges, with decisions being taken on the basis of the individual facts of each case.

The pilot commenced on 31 October 2014 and ran until 30 April 2015. The success of the pilot led to the continuation of the pilot, initially to the end of the academic year to encompass phase transfer appeals and then pending the decision on the composition of panels in the longer term. As the current SPT, it now falls to me to make that decision.

The Right Honourable Sir Ernest Ryder
Senior President of Tribunals

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