Views and experiences of the process prior to a hearing

The period from registering an appeal to the point when the appeal was heard or conceded/withdrawn (i.e. the preparation phase) was the period described as most difficult by the parents and young people in our sample. The case study in Figure 40 gives one young person’s views about how that stage affected him and his family.

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Figure 40: Preparing the appeal: the whole family affected

Young person’s strengths(parent

point of view) Young person’s diagnosed conditions affecting education Enthusiastic, very hard-working,

very protective of sibling (who had more complex SEND)

High functioning autism, Attention Deficit Hyperactivity Disorder, Anxiety, Literacy difficulties

Young person’s views about the process prior to a hearing

“[The Tribunal process] is quite a difficult situation to be put in. [...] I care quite a lot for my brother and my family, as well as having to fight for my own needs to get what I need to become successful [i.e. the appeal].

What a lot of people don’t understand is, it’s not just in school hours that this will affect, it’s very much a case of 24/7. It applies an awful lot of stress on individuals which have to do the jobs [i.e. prepare the appeal case], especially my mum. The stress and the upset and everything that’s caused, because there are these bridges being burnt down, because people either can’t find the funding, or something’s gone wrong in the paperwork or something, and they’re just being picky about it and not doing it. All of that makes it extremely hard to want to help them help me and my family. Even cooperating is hard, when they’re just putting up barriers all the time. And to see it happening to my family, I get quite grumpy and quite angry when it happens. The thing that I really struggled with was staying calm when talking to members of County [at my annual review meeting] because I didn’t have time for them, because they were causing stress that my family didn’t need.”

Source: separate interviews with young person and parent

The themes in Figure 40 were frequently reported by other parents interviewed: • Negative impact on the whole family

• Children/young people affected by the stress placed on their parent/s • Breakdown in relationships with LA staff (‘bridges being burnt’)

• Strong negative emotions

• The stress and hard work involved in dealing with the extensive paperwork (‘the jobs’)

Another young person interviewed (jointly with parent) stated that the period before the hearing was hard because of the uncertaintyit created about her next steps in life:

“I wanted the information [i.e. the decision] to come quickly. We couldn’t plan anything.” (P10, young person)

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• The long wait until a hearing (six months was the length of time most frequently reported).

• The difficult process of putting together a legally watertight case – 22 of the parents/young people engaged legal support (solicitor or barrister) to do this, with seven of these accessing this through Legal Aid or a charitable organisation. • The cost of obtaining private assessment reports from freelancing professionals –

these reports were not required by the Tribunal but were perceived as necessary when the parent’s view was that one or more assessment reports obtained by the LA was out of date or lacking in detail or (reportedly) constrained by local policies that put pressure on local professionals as to what they could and could not write in their reports.65

• Dismay at what was described as “LA tricks”, such as missing out parent-supplied evidence from the evidence bundle sent to the Tribunal.

• The anger and frustration felt when the LA conceded very close to the hearing date – this was reported as leaving parents feeling that all the work and stress could have been avoided, if only the LA representatives had listened to their case in the first place:

"It's a terrible way to behave. I don't see any validation to it. There was no communication – a lack of negotiation and lack of conversation – it was all on paper. The working document was batted back and forth. It was a nightmare. We felt that the LA had dug their heels in for no reason. No-one [at the LA] gave the impression of giving two hoots. We were seen as ‘difficult parents’ [...] In the end, my husband had had enough and he just phoned up the LA’s solicitor and said, “You are not seriously going to appeal on this” and the next day, she rang back and said, ‘We concede’.”(Parent P8)

This preparation stage before the hearing was also discussed in the LA focus groups and by parent support representatives. In six of the LA focus groups, LA SEND staff spoke about the importance of the LA’s approach to relationships with parents and

young people during this time. In these groups, there was an emphasis on

“maintaining communication”, a “non-adversarial” approach and of being “reasonable to families”, as illustrated by the following quotations:

“What we always do is we maintain the communication routes throughout the management of the appeal so that parents don’t feel that they can’t change their views along the way. We don’t want to have unnecessary confrontation.” (Focus group 12)

65 _{The view that such local policies were in place was mentioned frequently. We report it here but} acknowledge that the LAs concerned may have contested the accuracy of this perception.

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“It’s about doing the right thing as well. I won’t defend an appeal if I think it’s got more than a 50/60% chance of success. A lot of local authorities don’t do that. […] It’s about being reasonable to families, knowing the stress they’re under.” […] In this local authority, we don’t have the viewpoint where we’re against families in appeals. My viewpoint is, if we get to appeal, we’ve lost anyway because our system has failed on getting there, which I know is not that popular a view with some local authority reps.” (Focus group 10)

“We have to work with parents for a very long time. It’s not an ‘us and them’ situation. The relationship will be for several years (most of us in the team have been here for 20-30 years). We do our job as best we can, knowing the

relationship will last after the appeal is over.” (Focus group 1)

“My approach is anti-adversarial. […] We do not involve legal services. The SEND team do all the work. […] EP and education training is around a

consultative model and talking things through. […] We talk to everyone involved and seek a resolution before [the hearing].” (Focus group 5)

Parent support representatives, especially those working in only one LA, had varying perspective on LA approaches to the pre-hearing date stage of an appeal. For example, one gave due credit to his LA for “adhering to the deadlines” and apologising if there was any delay. “They do follow the rules” (PSR 10). Parent support representative 14, working in another LA, had a different perspective, explaining that the LA had lost

experienced staff and that, “new staff have been trained in LA procedure and policy, not in the law. The LA make it up as they go along.”

Support during the process of preparing the case

Regardless of whether or not they had engaged legal support, twenty of the parents used parent support organisations (see Appendix 10) to help them through the appeal process, including attending mediation and/or the appeal hearing. Parent support representative 1 summarised her role in this regard as follows:

“I prepare appeals and explain the process of putting cases together. It’s taking parents through it step by step. It’s quite a scary process for a parent. Because we’ve been through appeals, we can reassure them that it’s not scary at all. Appeals can be favourable and supportive from what I have seen. All the form filling, the witnesses, each process can be explained.” (PS1)

In our sample of 55 parents with experience of appeal to the First-tier Tribunal SEND legal support was drawn on when they felt unable or unwilling to deal with the

paperwork and administration themselves. In our sample, those parents and young people who were eligible for Legal Aid valued that help in preparing their case, including the opportunity to obtain additional assessment reports if needed.

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Professional reports (LA, NHS and privately commissioned)

A Tribunal panel representative stated that the Tribunal intended to issue guidance to professionals on the evidence they submit to the Tribunal. It would be based around 10 questions. “If LAs are smart, they will use that for EHC reports too.” (TR3) Such a move was welcomed by one LA representative who argued that this would be helpful and would remove the issue of the Tribunal panel trying to compare a 50-60 page

independent report with a 2-page LA report. Some LA representatives said they did not value privately commissioned reports by non-LA or NHS professionals in appeal cases. However, others recognised that local/national shortages of NHS therapists

(occupational therapists, physiotherapists, speech and language therapists) as well as LA educational psychologists meant that sometimes private therapists/psychologists were turned to for assessment reports.

Tribunal administration and telephone case management

The Tribunal administration was well-regarded. One parent’s views are used to express this:

“The procedures are very efficient. HMCTS [Her Majesty’s Court and Tribunal Service] respond very quickly. They deal with things by e-mail. Case review and case management processes are very clear and both sides abide by them,” (Parent 84)

Telephone case management was also viewed as helpful: “To have a specialist, qualified judge directing the management of the appeal, that’s been helpful.” (Focus group 8)

From experiences reported in three focus groups and by one parent support

representative of a national organisation, we heard that the welcomed reductions in the timescales for appeal hearings66 _{had put the administrative system “under pressure”,} which had led to reported delays in responses to requests for changes and in requests for telephone case management.

5.3.2.2 Views and experiences of the panel hearing