Q:

12.13 Does the ETW just decide between competing positions and competing evidence?

Nodi No-nonsense Guide Wales

Nodi No-nonsense Guide Wales
Authors: Civitas Law education team
01 Nov 2024

A: SenseCheck

  • 0 Yes
  • 1 No
  • 0 Other

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  • 01 Nov 2024
  • No

    Complex

    No. In LB Bromley v SENT [1999] ELR 260 the Court of Appeal considered that the creation of a specialist tribunal, made up of a legal chair and lay members empowered the tribunal to “take a closer look and the content of the [SSEN] … for many purposes [the tribunal] stands in the [LA's] shoes, re-evaluating the available information in order if necessary to recast the [SSEN].” 

    Although ALNET introduces significant changes to the framework for ALN in Wales, the constitution of the ETW (with a specialist panel) remains the same. For this reason, Nodi considers it likely the ETW will adopt the same inquisitorial approach to making a decision under this new framework as it did under the old system and in the FTT in England.

    The ETW’s task on appeal is to ‘stand in the LA’s shoes’ exercising its inquisitorial jurisdiction as appropriate to ensure it has the necessary information before it to fairly determine the appeal: LBI v A Parent [2024] UKUT 252.

    The inquisitorial approach may require the tribunal panel “making sure they have the necessary information on which to decide the issues before them, rather than rely entirely on the evidence adduced by the parties.The FTT will usually have much greater expertise than the parents who appear before them”: W v Gloucestershire CC [2001] EWHC Admin 481 para 15. 

    When deciding whether an adjournment is required the overriding objective needs to be applied. Applying the overriding objective will involve balancing the competing needs of adopting an inquisitorial approach and the cost and delay (in particular to the CYP having a decision made) of an adjournment. This would include whether further evidence is needed for the parties to participate fully, whether the tribunal’s special expertise would assist, and whether the parties have provided all the evidence available to them: DH & GH v Staffordshire CC [2018] UKUT 49 (AAC) para 22-25.DH & GH v Staffordshire CC [2018] UKUT 49 (AAC) para 22-25.

    The tribunal panel may, if it is satisfied it is fair and just to do so, permit the appellant, LA, maintained school or FEI to rely on grounds or evidence not in the case statements: r. 42 (4) EdTW Regs 2021.

    More: >12.19 Does the ETW just have to decide which expert is right? >12.18 Do the LA and CYP/parents have to ‘play fair’? 

    Nodi glossary:  Education Tribunal Wales

    Nodi No-nonsense Guide Wales

    Nodi No-nonsense Guide Wales
    Authors: Civitas Law education team