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• 14 Feb 2022

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  Complex

  No. “A specialist tribunal, such as the SENDIST, can use its expertise in deciding issues [including rejecting expert evidence], but if it rejects expert evidence before it, it should state so specifically. …… where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it.”: L v Waltham Forest [2003] EWHC 2907#14.

  However, the FTT can use its expertise in deciding between competing expert views and, for example, in ordering a level of provision in between that contended for by competing experts: Wiltshire CC v TM and SENDIST [2005] EWHC 2521 (Admin) #27; T & A v London Borough of Wandsworth [2005] EWHC 1869 #16-23; D v SENDIST [2005] EWHC 2722 #13.

  How the FTT may use its expertise, and whether it is required to put their thinking to the parties, is fact dependent. 

  In BB v LB Barnet [2019] UKUT 285 #18, it was not unlawful for the FTT to disagree with the parental OT evidence where the LA had not put in any OT evidence without canvassing this with the parties: “The tribunal is entitled to proceed on the basis that the submissions and evidence are complete at the end of the hearing and that further reference back to the parties is not necessary unless something new arises that has not been fairly covered. The tribunal is entitled to expect the representatives to anticipate the likely range of options that the tribunal will consider and present their case accordingly”. The UT further noted in this context the duty of the parties to assist the Tribunal: "the parties should have provided evidence, if they wished to do so, and assisted the tribunal by inviting the members to put their ideas to the parties and the witnesses. They should not sit back and then criticise the tribunal for not doing what they could have prevented. I am not saying that this absolved the tribunal from its duty of fairness, only that the parties were required to assist the panel.”

  See further (1) BK (2) AK v. Hackney LBC [2020] UKUT 329 (AAC) #60-61 where the UT held that it was not unfair for the FTT to make decisions about the disadvantages of attendance at the parent’s preferred school (which the LA had accepted as suitable) without putting the same to parents’ witnesses or their representative at the hearing: “The issue is the fairness of the proceedings, not the particular context or the way in which fairness was said to be compromised. Fairness depends on the context. If there is an entirely new issue which no one contemplated during the hearing, fairness will require the FTT to put it to the parties. By contrast, in other cases where the FTT’s thinking has been effectively, albeit not perhaps directly, addressed putting any new idea to the parties for comment and perhaps more evidence would prolong the proceedings. In the latter event the FTT is entitled to proceed on the basis that the submissions and evidence are complete at the end of the hearing. Further reference back to the parties is not necessary unless something new arises which has not been fairly covered. The FTT is entitled to expect the representatives to anticipate the likely range of options that it will consider and present their case accordingly…The issue of the suitability of The [parent’s choice of school] had been accepted by the local authority, but that did not preclude the FTT from using its own expertise in deciding about the balance of advantages and disadvantages of the respective placements in relation to the section 9 exercise, which was clearly an issue which was going to have to be decided and should therefore have been anticipated…”

  In NE and DE v Southampton CC (SEN) [2019] UKUT 388 (AAC) #13, the FTT had acted unlawfully when considering progress in the context of suitability of a placement when it relied on a review which whilst in the bundle but was never cited by the Tribunal or the LA: “In all the circumstances it seems that the proceedings were fundamentally unfair because a central evidential plank on which the FTT based its decision was not one which either of the parties or the FTT had ever raised as having any importance to the issues the FTT had to decide…This is not diluted in my judgment by the fact that the March 2018 additional annual review was in the bundle and ‘viewed by’ two of the witnesses. The issues before the FTT were framed by the parties’ submissions and the evidence they called in support of them, as supplemented by probing and questions from the tribunal. It is uncontested before me that at no stage was a case advanced prior to the tribunal’s decision that founded the answer to current progress significantly or at all on the March 2018 additional review. To then find as the FTT did was unfair to the parents and amounted to a material error of law on the part of the FTT in coming to its decision.”

  More: Does the FTT just decide who is correct?

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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