Tuesday, 26 March 2013

North Yorkshire's reasons for using lawyers denied by Ministry of Justice

Up until 2011, the Council used its own officers to defend appeals to the SEND Tribunal. Its policy on paying for legal representation changed following publication of a document in February of that year, called "Investigation into the possible use of external legal advisors for First Tier Tribunal Appeals". (See this earlier post for more details.)

The reasons the Council set out for considering legal representation were:
Tribunal hearings are becoming increasingly legalistic, with reliance on case law and more parents being legally represented. Tribunal judges, for the first time, are beginning to recommend that LAs are legally represented.
 Discussions with our colleagues in the Yorks & Humberside area have 
shown that two LAs have for the first time sought legal representation (
their cases are in the process of being prepared), and others are considering 
doing so.
i.e. it's the parent's fault. But does this reasoning stack up? The Ministry of Justice replied to an FOIA request with a point by point denial (full documentation):
The Tribunal is becoming increasingly legalistic:  The Tribunal offers much the same hearings as it always has. Some changes have been made e.g. in the interests of efficiency hearings are now held in Tribunal rooms rather than hiring hotels for the day, but we feel anyone observing a hearing would recognise little change and the vast majority of the panels are the same people who have been sitting for a number of years. The Lamb report at 5:74 tends to the view expressed by the National Centre for Social Research (Penfold 2009) that those parents who consider the proceedings formal also tended to be those who engaged lawyers and that this may have contributed to the formality. 
With reliance on case law:  Reference to case law has always been available and is used when necessary to give guidance and direction as required for all parties.   
More parents being legally represented:  The rate of representation has remained stable at around 15%. 
“The Tribunal policy or advice on legal representation for local authorities and appellants”: The Tribunal does not generally recommend representation by lawyers and has no policy recommending them.  Most cases proceed unrepresented by lawyers.  On rare occasions a Local Authority may seek to adjourn a case because they do not have an officer available to represent the Local Authority and the Tribunal would then consider whether it was in everyone’s interest to adjourn (bearing in mind that it is the contention of the parents that the child is not receiving an appropriate education in the meanwhile). On occasion such an adjournment may be refused if it is not appropriate to adjourn and the Local Authority informed that if they cannot provide an officer they could utilise alternative representation such as a lawyer to ensure the case proceeds. All judicial decisions are exempt from FOI. Equally if the Tribunal becomes aware that a parent is having difficulty presenting their case they will be urged to seek representation from a body offering such a service, this could be a friend, a lawyer, an education specialist or a charity such as IPSEA. 
4. Any documentation you have sent to local authorities on this matter: The Tribunal has sent no documents to any local Authority suggesting that they should employ lawyers. 
5. Has the Courts and Tribunal Service issued any policy with respect to legal representation at SEND Tribunals following the Lamb Report, and if so, please provide me with a copy:-  No legal representation guidance was recommended or issued.  
The Council's reasons for a change of policy begin to look like horseshit of the highest order a little threadbare, don't they?