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Medico-Legal
Janet has been working independently as a Speech and Language Therapist since 1997 and over those 10 years has undertaken approximately 180 assessments and reports and has attended in excess of 60 SENDIST hearings as an Expert Witness.
In 2007 Janet and Chris saw a total of 87 clients. At any one time Janet and Chris see a maximum of 24 clients for regular weekly therapy at the clinic or in schools and Colleges within approximately a 50 mile radius of Ely. Janet O'Keefe undertook 23 new assessments and reports specifically for SEN statementing and SENDIST, 10 review re-assessments and reports for SENDIST and 2 adult medico-legal assessments and reports for High Court Cases. (A total of 35 assessments and reports over the year). Janet and Chris attended 7 annual review meetings for regular therapy clients. Janet was involved in 10 conferences with barristers. Janet attended 12 SENDIST hearings and gave evidence in the High Court once.
Ben Haslam Case
Janet assessed Ben and wrote the report for the parents SENDIST last year.
I am thrilled to see on this news item that Ben has made such great progress at The Shires School but am horrified that Bedfordshire appealed the SENDIST decision in order to make Ben leave the school where he is happy and his needs are being met to go to a local special school and live in a children's home!! John Friel, barrister for the family agrees that this is morally and politically wrong and is a decision based purely on finances and not the needs of the child. It denies parental choice and is imposing LAC status on a child who is loved and well cared for by his parents.
See Sarah Spiller's report for Channel 4 new, 14th July 2008
Watch the BBC Look East report featuring Melinda Nettleton, Solicitor
SEND Report Writing Guidlines
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Final SENDIST Practice Directions
PRACTICE DIRECTION
HEALTH EDUCATION AND SOCIAL CARE CHAMBER
SPECIAL EDUCATIONAL NEEDS OR DISABILITY DISCRIMINATION IN SCHOOLS CASES
1. This Practice Direction applies to a “special educational needs case” or “disability discrimination in schools case,” as defined in Rule 1 of the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008.
DEFINITIONS
2. In this Practice Direction:-
a. “Child” means the person in respect of whom a parent makes an application to the Tribunal;
b. “Child’s statement” means the statement of special educational needs relating to the child made under section 324 of the Education Act 1996;
c. “Final hearing” means a hearing held to dispose of proceedings;
d. “LEA” means the local education authority which made the decision in relation to which the application is made;
e. “Parent” has the meaning given in section 576 of the Education Act 1996 (and includes a parent who has made or may make an application to the Tribunal under the Education Act 1996 or the Disability Discrimination Act 1995);
f. “The 2008 Rules” means the First-tier Tribunal (Health, Education and Social Care Chamber) Rules 2008.
INFORMATION OR DOCUMENTS REQUIRED IN THE APPLICATION NOTICE
3. Rule 20(2) of the 2008 Rules states that the application notice must be signed and must include—
a. the name and address of the applicant;
b. the name and address of the applicant’s representative (if any);
c. an address where documents for the applicant may be sent or delivered;
d. the name and address of any respondent
e. details of the decision or act, or failure to decide or act, to which the proceedings relate;
f. the result the applicant is seeking;
g. the grounds on which the applicant intends to rely; and
h. any further information or documents required by an applicable practice direction.
4. In a special educational needs case the application notice must also include:-
a. the name and date of birth of the child;
b. if possible, the names and addresses of all persons or bodies who have or share parental responsibility for the child or have care of the child;
c. the name of the LEA, the date upon which the applicant was notified of the decision in relation to which the application is made, a copy of any written record of any decision under challenge, and any statement of reasons for that decision that the applicant has or can reasonably obtain;
d. a list of documents included in or provided with the application notice;
e. if the applicant seeks an order that a child’s statement shall be amended, details as to which part or parts of the statement the application relates as well as details of the changes sought; and
f. if the applicant seeks an order that a different school from that already named in the child’s statement be named in it either; the name and address of that preferred school, or a sufficient description of the type and nature of the school which the applicant considers would constitute an appropriate placement for the child; and if available, in the case of an independent or non-maintained school, written confirmation that there is a place available for the child (provision of place) and, if the school is an independent school and not registered to take a pupil with the special educational needs of the child, confirmation from the Secretary of State that he consents to the child attending that school (enabling consent);
g. where the application is made under section 326 of or paragraphs 8 or 11 of Schedule 27 to the Education Act 1996, a copy of the child’s statement together with all appendices and supporting documentation provided by the LEA to the parent, if available; and
h. where the notice of application states the name of a preferred school, written confirmation that the applicant has informed the school that they proposed to request that it be named in the child’s statement in proceedings before the Tribunal.
5. In a disability discrimination case the application notice must also include:-
a. the name and date of birth of the child;
b. the names and addresses of all persons or bodies who have or share parental responsibility for the child or have care of the child;
c. where it is alleged that a school has discriminated against a child, the name and address of the school;
d. where it is alleged that a local authority has discriminated against a child or where the school named is maintained by a local authority, the name of the local authority;
e. a description of the child’s disability, including evidence of a medical or other professional diagnosis, if available;
f. details of the alleged discrimination, including the date or dates on which it is alleged to have taken place; and
g. if there is a statement of special educational needs in relation to the child, a copy of that statement and appendices, if available.
6. In accordance with Rule 7(2) of the 2008 Rules, if a party has failed to comply with the requirements of the 2008 Rules, or this Practice Direction, the Tribunal may waive the requirement, or require the applicant to remedy any failure to provide information or documents before the application notice is admitted, or take such other action as the Tribunal considers just.
7. Under Rule 8(2) of the 2008 Rules the Tribunal must strike out proceedings if the Tribunal does not have jurisdiction in relation to the proceedings. In such circumstances, the respondent will not be sent a copy of the application notice unless that particular LEA has requested that they be sent such application notices.
INFORMATION OR DOCUMENTS REQUIRED IN THE RESPONSE
8. Rule 21(2) states the response must include:-
a. the name and address of the respondent;
b. the name and address of the respondent’s representative (if any);
c. an address where documents for the respondent may be sent or delivered;
d. whether the respondent opposes the applicant’s case and, if so, any grounds for such opposition which are not contained in another document provided with the response;
e. in a special educational needs case, the views of the child concerning the issues raised by the proceedings, or the reasons why the respondent has not ascertained those views; and
f. any further information or documents required by an applicable practice direction or direction.
9. In a special educational needs case the response must also include:-
a. where the application relates to the contents of the child’s statement and the LEA states it does not resist the application or that it withdraws its opposition to the application, a final amended statement incorporating the amendments (if any) to the child’s statement which it agrees to make;
b. a copy of the child’s statement, appendices and supporting documents where these were not submitted by the applicant with the notice of application;
c. any supplemental evidence and professional reports currently available to the LEA and upon which it intends to rely, and
d. detailed grounds setting out what parts of the application are admitted, detailed grounds setting out what parts of the application are resisted, and details of any legal points that will be relied on at a final hearing.
10. In a disability discrimination in schools case the response must also include:-
a. detailed grounds setting out what parts of the application are admitted, detailed grounds setting out what parts of the application are resisted, and details of any legal points that will be relied on at a final hearing.
11. In accordance with Rule 7(2) of the 2008 Rules, if a party has failed to comply with the requirements of the 2008 Rules, or this Practice Direction, the Tribunal may waive the requirement or require the respondent to remedy any failure to provide information or documents before the response is admitted, or take such other action as the Tribunal considers just.
NOTIFICATION OF THE RIGHT OF APPEAL IN SPECIAL EDUCATIONAL NEEDS CASES
12. Under Regulation 12(2)(b), (4)(b), 17(1)(b), (2)(b), (2)(c), (9) of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (“the 2001 Regulations”), the LEA must notify the child’s parent of;
a. the parent’s right of appeal to the Tribunal;
b. the time limit within which the appeal must be made;
c. the availability of dispute resolution arrangements;
d. the fact that use of such arrangements does not prejudice the right to appeal.
13. The Tribunal will have regard to any failure on the part of the LEA to comply with the requirements of the 2001 Regulations when considering whether to extend time where the application notice is not provided within the time limit set out in the Schedule to the 2008 Rules.
INFORMATION REQUIRED FROM PARTIES IN PREPARATION FOR A FINAL HEARING
14. Each party shall provide, on a form provided by the Tribunal Secretariat and within the time stipulated, the following information in preparation for the final hearing:-
a. details of what the party believes to be the issues in the proceedings;
b. details of what evidence, in addition to that filed with the notice of application or response, the party intends to rely on at the final hearing;
c. if they were not available by the time of sending the response to the Tribunal, the views of the child concerning the issues raised by the proceedings;
d. the field in which a party wishes to rely on expert evidence; and where practicable the expert in that field on whose evidence the party wishes to rely; and whether the party wishes the evidence to be provided in the form of an expert report only or whether the party also wishes the expert to attend the hearing as a witness;
e. the name, address and occupation (or other description that shows their relevance to the proceedings) of any other witnesses the party wishes to attend the final hearing and the name, address and occupation (or other description that shows their relevance to proceedings) of any other person the party wishes to attend the final hearing (but not give evidence) whether or not it is to be held in private;
f. confirmation of whether any proposed hearing date is convenient to the party and, if not, details of their availability;
g. confirmation of whether the party wishes to attend and/or be represented at the final hearing;
h. whether the party or any witness will require the assistance of an interpreter or signer at the final hearing and, if so, details of the language, dialect or type of signing skill required; and
i. whether the party has any disabilities that may require adjustments to be made.
15. Unless there is a good reason for not doing so, a party must make an application for a witness summons at least 14 days before the final hearing.
16. If a party requests that the Tribunal admits evidence which has been recorded, whether by audio or visual means, the party must send 5 copies to the Tribunal in advance of the final hearing and within such time as the Tribunal may have directed.
ATTENDANCE AT PRIVATE HEARINGS
17. Under Rule 26(4) of the 2008 Rules where a hearing, or part of it, is to be held in private the Tribunal may determine who is permitted to attend the hearing or part of it. The following persons (in addition to a party and the child) will normally be entitled to attend the final hearing, or part of it, unless the Tribunal determines otherwise or they are excluded under Rule 26(5) or (6);
a. The party’s representative and witnesses;
b. Any other person the party wishes to attend the hearing unless the Tribunal determines that any such person should not attend the hearing and has notified that party accordingly;
c. A parent of the child who is not a party to the application;
d. The Chamber President and any judge or other member of the First-tier Tribunal (when not sitting as a member of the Tribunal);
e. A person undergoing training as a judge or other member of the First-tier Tribunal or as a member of staff;
f. A person acting under the supervision of the Chamber President in the training or supervision of a member of staff;
g. An interpreter.
USE OF EXPERT EVIDENCE
18. An “expert” means an expert who has been appointed to prepare or give evidence in a case. It does not include an employee of the LEA or a school.
Tribunal’s power to restrict expert evidence
19. A party must make an application to the Tribunal for a direction permitting the use of an expert report or for an expert to give witness evidence in a case.
20. The application must identify:
a. The field in which the party wishes to rely on expert evidence; and
b. Where practicable the expert in that field on whose evidence he wishes to rely.
21. Where a party has identified the matters at paragraph 20(a) and (b) to the Tribunal on the form provided by the Tribunal Secretariat referred to at paragraph 14 this will be treated as an application for permission.
22. The Tribunal will restrict expert evidence to that which is reasonably required to make a decision in the case.
23. Expert evidence will be given in a written report unless the Tribunal directs that the expert should attend a hearing.
Written questions to an expert
24. A party may put to -
a. An expert appointed by another party; or
b. A single joint expert,
written questions about their expert report and any such questions must be sent to the other parties at the same time.
25. Written questions-
a. May be put once only;
b. Must be put within 14 days of service of the expert’s report; and
c. Must be for the purpose of clarification of the report, unless in any case;
i. The Tribunal gives permission; or
ii. The other party agrees.
26. An expert’s answers to questions put in accordance with paragraph 24 must be treated as part of the expert’s report.
27. Where a party has put a written question to an expert appointed by another party and the expert does not answer the question the Tribunal may direct in relation to the party who appointed the expert that the party may not reply on the evidence of that expert.
Single joint experts
28. Where two or more parties wish to submit expert evidence on a particular issue, the Tribunal may direct that the parties jointly appoint a single expert to provide such evidence. Such parties will be known as the “instructing parties.”
29. Each instructing party may give instructions to the expert, which must, at the same time, be sent to each other instructing party.
30. The Tribunal will not give directions about the payment of the expert’s fees and expenses, which are to be agreed between the instructing parties.
31. The Tribunal may give directions about any inspection or examination which the expert wishes to carry out.
Experts – overriding duty to the Tribunal
32. It is the duty of an expert to assist the Tribunal on the matters within their expertise.
33. This duty overrides any obligation to the person who appointed them, or from whom their received instructions, or by whom they have been paid.
Content of expert’s report
34. An expert’s report must comply with the requirements set out below.
35. The expert’s report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.
36. An expert should make it clear:
a. when a question or issue falls outside his expertise; and
b. when he is not able to reach a definite opinion, for example because he has insufficient information.
37. If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the Tribunal.
38. An expert's report should be addressed to the Tribunal and not to the party or parties from whom the expert has received his instructions.
39. An expert's report must:
a. give details of the expert's qualifications;
b. give details of any literature or other material which the expert has relied on in making the report;
c. contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
d. make clear which of the facts stated in the report are within the expert's own knowledge;
e. say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;
f. Where there is a range of opinion on the matters dealt with in the report –
i. summarise the range of opinion, and
ii. give reasons for his own opinion;
g. contain a summary of the conclusions reached;
h. if the expert is not able to give his opinion without qualification, state the qualification; and
i. contain a statement that the expert understands his duty to the Tribunal, and has complied and will continue to comply with that duty.
40. An expert's report must be verified by a statement of truth. The form of the statement of truth is as follows:
“I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.”
41. Where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the hearing.
Discussions between experts
42. The Tribunal may direct a discussion between experts for the purpose of requiring the experts to:
a. Identify and discuss the expert issues in the proceedings; and
b. Where possible, reach an agreed opinion on those issues.
43. The Tribunal may specify the issues which the experts must discuss.
44. The Tribunal may direct that following a discussion between the experts they must prepare a statement for the Tribunal showing:-
a. Those issues on which they agree; and
b. Those issues on which they disagree and a summary of their reasons for disagreeing.
45. The content of the discussion between the experts shall not be referred to at the hearing unless the parties agree.
46. Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.
47. Where the Tribunal directs an act to be done by an expert, or makes a direction that otherwise affects an expert, the party instructing that expert must send the expert a copy of the written notice of the direction. Where there is a single joint expert the respondent must send the expert a copy of the written notice of the direction.
48. Under Rule 7(2) of the 2008 Rules, if a party fails to comply with a requirement in this Practice Direction the Tribunal may take such action the Tribunal considers just, which may include exercising its power under Rule 8 (striking out of a party’s case).
49. This Practice Direction is made by the Senior President of Tribunals with the agreement of the Lord Chancellor. It is made in the exercise of powers conferred by the Tribunals, Courts and Enforcement Act 2007.