SEN expert evidence - Guidance from the Upper Tribunal

The Upper Tribunal has provided guidance on how the Special Educational Needs and Disability Tribunal should approach expert evidence when there is conflicting advice.

The guidance for how expert evidence should be considered by the Special Educational Needs and Disability Tribunal is found in the case of The Royal Borough of Kensington and Chelsea v CD [2015] UKUT 0396 (AAC)

Background

This case concerned B, a 12 year old who had special educational needs as a result of being profoundly deaf. B used lip reading to help her communicate. B’s parents appealed to the Special Educational Needs and Disability Tribunal (SENDIST) against the contents of B’s Statement of Special Educational Needs.

There were several areas of disagreement before SENDIST, but the relevant issues for the appeal to the Upper Tribunal were:

• Part 3 of the Statement – the maximum class size in which B should be taught; and
• Part 4 – the school that B should attend.

The parents’ case before SENDIST was that, given B’s level of hearing impairment, Part 3 of the Statement should specify the need for B to be taught in small class sizes with a maximum of 20, and that Part 4 should name an independent school with small class sizes. The local authority’s position was that there was no educational need for small class sizes and the figure of 20 was arbitrary. The local authority’s proposed placement was a mainstream school.

B’s parents and the local authority both instructed an acoustician to assess the acoustic characteristics of both schools. The parents’ acoustician concluded that B was likely to be significantly disadvantaged by being in classes with greater than 20 children and that, therefore, the local authority’s proposed school was unsuitable.

In a case management hearing, some seven/eight weeks before the SENDIST hearing, the parties were directed to decide whether an acoustician could be jointly instructed. As there was no agreement, the SENDIST Judge ordered that the parents’ acoustician be permitted to carry out the survey. In the absence of agreed joint instructions, the LA instructed their own expert.

Both parties submitted their acoustics expert’s report to the SENDIST but neither acoustician attended the hearing. At the beginning of the hearing both parties indicated that there was no dispute with the experts’ findings. Despite this, the SENDIST found that it was unable to make findings on the reports because:

• The contents of the reports had not been agreed; and
• The subject matter was highly technical.

The SENDIST said that the experts should have attended the hearing to give evidence.

The Tribunal decided all disputed matters in the parents’ favour and the local authority appealed to the Upper Tribunal.

Upper Tribunal’s guidance

The Upper Tribunal set the decision aside stating that the SENDIST had ‘abdicated its responsibility’. There should have been more focused case management at the start of the hearing including discussing the experts’ reports, deciding areas of dispute and how evidence in relation to the disputed matters were going to be presented to the Tribunal. The SENDIST could have been ‘more robust’ and simply ordered a single joint expert acoustician with precise agreed instructions.

Even if this had not been done at the outset of the hearing, the SENDIST could have ordered further written submissions or it could have held a further hearing where the experts could have been called to give evidence.

The Upper Tribunal went on to give the following guidance in relation to ‘non-standard’ expert evidence (i.e. evidence other than that from an educational psychologist, speech and language therapist and occupational therapist):

“33. As in all cases, the parties and tribunal must bear in mind the provisions of the overriding objective of rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the First-tier Tribunal Rules”) – that dealing with a case fairly and justly includes dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.

34. Further, whilst I am, of course, mindful of the fact that the Civil Procedure Rules 1998 do not apply to First-tier Special Educational Needs and Disability Tribunals, and that un-necessary formality in those tribunal proceedings must be avoided, nevertheless, in my judgment Part 35 of the Civil Procedure Rules provides a useful backdrop in relation to case management decisions concerning expert evidence in such tribunals, and I draw upon it.

35. With that introduction, the starting point must be that expert evidence should be restricted to that which is reasonably required to resolve the appeal. If a party intends to seek to rely upon expert evidence, then pursuant to the duty under rule 2(4) of the First-tier Tribunal Rules, this should be communicated to the other party as soon as possible. If (as is likely in most cases) the issue falls within a substantially established area of knowledge, where it is not necessary for the tribunal to sample a range of opinion, it may well be that the evidence should be provided by a written report of a single expert jointly instructed by the parties.

36. Any issues regarding expert evidence should, of course, be apparent from the parties’ respective Attendance Forms. Upon perusal of those Attendance Forms a tribunal judge may wish to decide whether and, if so, how to exercise his or her discretion to give directions as to expert evidence. In doing so, he or she will be mindful of: (i) rule 15(1)(c) of the First-tier Tribunal Rules, which provides that, without restriction on its general case management powers, “the tribunal may give directions as to … whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence,” and (ii) the observations which I have made at paragraphs 33 – 35 above. It may well be that the parties would have to make out a strong case either for relying on expert evidence from an expert who had not been jointly instructed, or for requiring oral evidence of an expert at the hearing of the appeal.

37. Further, in giving any case management directions relating to expert evidence it would be helpful to all involved if the tribunal judge were to identify precisely the issues which the experts are to address.”

It will be interesting to see if the SENDIST tightens its management of hearings. It would be sensible to clearly identify remaining areas of dispute well before the hearing.  Our finding is that this is often frustrated by local authorities not engaging with the appeal until the further evidence stage, a mere four weeks before the hearing. Expert evidence is often ‘saved up’ for further evidence and in some cases, evidence is submitted after the further evidence deadline, or parties will even come with new evidence on the day of the hearing itself. We have also found that Attendance Forms are often completed with a ‘TBC’ and actual witnesses are not named until just before the hearing.

Perhaps the SENDIST needs to use ‘active case management’ in all cases to identify issues that need resolving well ahead of the hearing. At present, the Tribunal may use ‘active case management. Three weeks before the hearing a Registrar will contact both parties asking about witnesses and progress towards outstanding issues. In light of guidance from the Upper Tribunal, perhaps everyone needs to consider issues early on in the appeal process.