In this post, Judge Meleri Tudur, Deputy Chamber President, reflects on how the First-tier Tribunal (Special Educational Needs and Disability) saw a major change to the legislative structure with the implementation of the Children and Families Act 2014. How does a small tribunal jurisdiction manage major change?
Humans are creatures of habit and by and large, dislike change, hence a change to the legislative basis to the work of a tribunal can be threatening and disconcerting to those involved.
In 2014, the First-tier Tribunal Special Educational Needs and Disability faced the first major change in the legislative framework underpinning its work for a generation. Although some Tribunals, such as the Immigration and Asylum Chamber and Social Entitlement Chamber exist in a very different climate, regularly buffeted by the winds of political change and subject to frequent legislative changes, the special education legislation has remained largely stable since the creation of the Tribunal in 1993.
It is now twelve months since the implementation of the Children and Families Act 2014, which introduced a wholesale change to the legislative provisions governing the assessment, provision and appeals process for children and young people with special educational needs and disability.
Leaving aside for the moment the detail of the changes made by the Act and concentrating on the practicalities of the administration of justice in a changing landscape, the Tribunal appeared to face a number of challenges.
Firstly, because of a phased implementation, the Tribunal was required to run two parallel systems of old and new appeals for the duration of the transition, without any additional resources.
Secondly, extensive training was required for judicial office holders and administrative staff in order to ensure that they could hit the ground running when the first hearings under the new regime were listed, whilst maintaining their knowledge of the existing system and avoiding disruption to the day to day work.
Thirdly, the secondary legislation was slow to appear: most particularly the transition regulations governing the implementation of the Act were not published until the 28 August 2014, with an implementation date of the 1 September 2014, so that the detail of the relevant timelines and transition arrangements were effectively unknown to the Tribunal in advance of the implementation date. Although the transitional arrangements allow three years for the full roll-out of the Act, there were a large number of ongoing appeals affected by the transition arrangements and immediate action was required.
What did the Tribunal do in the face of the challenges?
It turned the situation on its head and looked at the opportunities provided by such a major shift to re-evaluate what it does and how it is done. Would it be of benefit to approach its work differently? Reviewing the processes identified several changes that could be made at the time of transition, in a way that would provide benefits to the tribunal’s users and specifically to children and young people with special educational needs and disability affected by the Tribunal’s decisions.
The Children and Families Act introduced a change to the culture in the decision making by local authorities. The intention was that the process would be far more inclusive of the views of parents and young people, with the intention that they would be involved in the decision making process. “Nothing about us without us” was the catch-phrase of the moment. For the Tribunal, it meant that both parties would be fully aware of the situation by the time the Local Authority’s decision letter was sent triggering the right of appeal.
The Tribunal saw an opportunity to revisit the timetabling of appeals and to consider whether it was necessary to allow so much time to prepare appeals for hearing? Could it be just as effective to shorten the timetable from registration to hearing? Could a shorter timeline be introduced without compromising the quality of the evidence or the final decision?
Under the old system, the appeal, by the time it came to hearing was usually a very different one to that which existed at the time of the local authority’s original decision (and subject of the appeal) because both parties would have gathered a significant body of evidence to present to the Tribunal which was not available when the first decision was made.
The transition regulations allowed decisions about young people subject to post-16 educational transfers to be issued very late in the academic year, and this provided the opportunity for the Tribunal to test a very short timetable of 7 weeks from registration to hearing for the small number of cases involved, to test its effectiveness. The trial proved very successful.
The gradual implementation of the legislation allowed a chance to move from paper to electronic files and to assess the effectiveness of the process without risking a major disruption to the Tribunal’s work. This was done without any additional software or case management systems. All of the appeals under the new system were scanned on receipt and stored electronically so that all of the information was available to judiciary and administration without recourse to paper. So successful has the process proved that it will be rolled out to all appeals from 1 January 2016.
Taking administrative staff and judicial office holders away from their core duties to undertake training can be problematic because it disrupts the day to day tasks, but because the Tribunal’s work follows the academic year very closely, August presented an excellent opportunity to train all administrative staff on the impending changes without any disruption. Astonishingly, the administration also managed a full office move during August 2014 and a potentially difficult combination of factors was well managed to deliver a seamless service throughout the period.
Training judicial office holders could be delayed until the autumn, because even decisions appealed very soon after implementation would not be heard for several weeks. Judicial office holders attended a residential course before the appeals were heard and were provided with detailed training packs. Furthermore, whilst the Senior President’s Composition Pilot reduced the panels to two members for most cases under the old regime, the complexity caused by the legislative change allowed three person panels to be allocated under the new, enabling prompt familiarisation with it.
An increase in the number of user group meetings ensured regular and effective sharing of information about developments and enabled the Tribunal to understand the pressing issues from its users’ perspective. It has raised awareness of problems as they arise, enabling Local Authorities to address issues within their own systems.
There was little that could be done in respect of the secondary legislation other than to read, digest and offer guidance as soon as it became available. At such times, the use of technology and digital communication systems come to the fore as an effective means of disseminating information quickly and efficiently.
From the Tribunal’s perspective, the implementation and transition has been smooth, with the Tribunal maintaining its core work without disruption and continuing to provide an unbroken system of access to justice. The changes are ongoing and will continue to provide challenges and opportunities for all concerned. Rather than threatening and disconcerting, the experience has been positive and empowering, showing that the Tribunal has the ability and the flexibility to respond to the demands upon it and to continue to provide an excellent service to its users.
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