Tuesday, 31 May 2011

Legal representation at Tribunals: how do the facts stack up?

If you are considering an appeal to tribunal, one of the decisions you will have to make is whether to be legally represented or not, funds permitting. Each individual's case is different, and the following advice is based on an analysis of the data only, and does not constitute legal advice: please use as a general guide to inform your decision.

Should I be legally represented?

No, for appeals against refusal to assess, because NYCC nearly always lose those cases, mainly because they are indefensible.

No, to those appeals involving a refusal to issue a statement (NYCC has, to date, has conceded all of these) and

Yes - if you can - to appeals against parts 2, 3 and or 4.

Look at using an advocate, because they can be much cheaper than a lawyer. Next to representing yourself, the cheapest way to do it would be to do all the work leading up to tribunal yourself and then be represented on the day by an advocate. That's not to say you cannot win without representation, because you certainly can, and the data bears that out.

A useful question to know the answer to is what are the chances of NYCC being legally represented? Representation is certainly not uncommon in other local authorities. The answer, it turns out, is that as of year end 2010, NYCC has not been legally represented at tribunals at all. That can be good news (for parents) though it must swiftly be followed by a caveat: NYCC's position is that it may, in future, consider legal representation for cases that are complex or more costly.

The Analysis

All data is for the academic years 2003-2010, and concerns children with autism, not other types of SEN.

Refusal to assess

This type of appeal is one where parents or school made a request for a statutory assessment which NYCC turned down, and then the parents appealed the decision to tribunal. 

The number of appeals to tribunal against NYCC refusing to assess a child was eight.

NYCC conceded five of those cases before tribunal, two cases were withdrawn by the parents and one case was struck out. One of those cases was legally represented (case conceded by NYCC). We do not know why the cases were withdrawn, but the most likely reason is that NYCC agreed to statutory assessment and the parents withdrew the appeal themselves. It is unusual to have a case struck out - again we don't know why - but it would have been because the appeal was clearly outside the rules or jurisdiction of the tribunal panel.

Refusal to make a statement

That is where NYCC agreed to the statutory assessment and then decided that a child did not require a statement.

There were four appeals to tribunal by parents.

NYCC conceded all four cases before the matter came to tribunal. No parent was legally represented in this group. It is interesting to note the varying time between the date of appeal and the date conceded. The shortest period was 10 days, the longest being 260 days.

Appeal against contents (Part 2 and 3 of the statement)

This type of appeal against parts two and three are concerned with the description of a child's needs (part 2) and the provision required to meet those needs (part 3).

There were four appeals of this kind.

Three were withdrawn and one was upheld (ie the appeal was successful) The appeal that was successful was legally represented. Two of the three withdrawn cases were legally represented. We do not know why the cases were withdrawn but it is most likely because NYCC conceded the appeals and the parents withdrew them.

Appeal against contents (Part 2, 3 and 4 of the statement)

Description as above, but with the placement of the child also being appealed.

There were 11 cases of this kind.

Two appeals were withdrawn and nine went to tribunal. Of those decided by tribunal, the tribunal amended parts 2 and 3 of all nine statements, and amended Part 4 (the placement) in six. Four of the nine cases were legally represented, all of these cases had Parts 2, 3 and 4 amended by tribunal - ie the appeals were completely successful. We do not know why two appeals were withdrawn.

Final thoughts

The take home message here is that most of those cases that went to tribunal, parents were completely successful in 66% of cases, and had the statements improved in the other 33% of appeals.

The majority of information in this article derives from a Freedom of Information request to SENDIST.

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