Should refusal to assess appeals be heard on paper only?

In light of the current wait times for a matter to proceed to a Hearing within the Tribunal, the Tribunal Procedure Committee have recently submitted a proposal to amend Rule 23 of the Tribunal Procedure (First-tier Tribunal) (Health Education and Social Care Chamber) Rules 2008 (“the 2008 HESC Rules”). 

Essentially, Rule 23 outlines that a Hearing for refusal to assess appeals, must be held in order for members of the Tribunal to make a decision unless:

a.    Each party has consented to the matter being concluded without a Hearing, based on the papers before the Tribunal or
b.    The Tribunal considers that it is able to make a decision without the need for a Hearing. 

Currently, when submitting the appeal form in respect of refusal to assess cases, parties are asked to indicate whether they would be agreeable for the Hearing to be heard ‘on the papers.’ This phrase means that the Tribunal will consider all of the paperwork that has been submitted as part of the appeal from all involved parties and will make a decision without holding a formal oral Hearing. It is also not uncommon for the Tribunal to write to parties once all evidence has been submitted to determine whether they would be agreeable to the Hearing going ahead on paper. If either party does not consent then the matter will be listed for an oral Hearing.

The recent Tribunal Procedure Committee (TPC) proposal, however, is for more refusal to assess appeals to be heard on paper by giving the Tribunal Judge’s additional power in order to use their discretion as to whether the matter should be heard on paper removing the requirement for the Local Authority and parent/ young person to provide their consent for the matter to be heard on the papers. An alternative proposal is for consent to be required from the parent/ young person only and not from the Local Authority. 

Shocking statistics have been highlighted within their proposal document, highlighting that ‘the number of SEND appeals in the Tribunal has increased significantly: there were just over 3,000 appeals registered in the year 2014-2015 compared with 18,000 appeals registered in the year 2023-2024.’ 

In the proposal document it records the TPCs preliminary observation that ‘in the interests of justice, it is appropriate that the Local Authority ought not to be in a position to delay the case by insisting on a hearing where the applicant wishes the case to be decided on the papers to ensure a swifter outcome.’ 

In response to the proposal, the Association of Children’s Services (ACDS) has commented that their members had ‘significant concerns’ regarding the proposals. Furthermore, the Law Society Gazette, has reported that ACDS has said ‘local authorities would be put at a disadvantage by appeals being decided on the papers because they would not be able to explain why an EHCP had been rejected’. This comment from the ACDS fails to acknowledge that local authorities would still be able to do this in these appeals, as they are required by the Tribunal, to provide a written Response to the Appeal. 

This proposal is clearly a bid to help the Tribunal manage the number of appeals they have by reducing the time between refusal to assess appeals being registered and being decided by the Tribunal. In regards to paper Hearings, the proposal document highlights that ‘It is estimated that such cases take roughly half the time from receipt to disposal, compared to those listed for a hearing. Therefore, enabling a greater number of appeals to be decided on the papers, where appropriate, would allow the Tribunal to resolve cases more quickly and efficiently.’

What does this mean for parents?
Hopefully, this would reduce the time between a refusal to assess appeal being lodged and the Hearing date. It would likely mean  that if these Appeals are heard on their papers only, that parents will need to ensure that they have up to date written evidence to showcase that their matter meets the legal test for an Education, Health and Care Needs assessment. Furthermore, this could mean that parents need to seek independent assessments to be carried out to provide reports, which  will need to be undertaken by experts well-versed in Tribunal appeals to ensure that there is no ambiguity as they will not be provided with the opportunity to answer questions at an oral Hearing. 

If you are considering appealing against a Local Authority’s decision refusing to carry out an Education, Health and Care Needs Assessment, we would be happy to assist you and you can contact us on 0333 202 7175 or email education@hcbgroup.com. Equally, if you have an ongoing appeal upon which you require any advice, a member of our specialist Education Team would be happy to provide guidance and advice.