Firstly, running a special educational needs appeal without assistance from someone with expertise in the law involved can’t be recommended. It’s a complex, technical area and if you don’t know the law, you are putting yourself at a disadvantage.
The Tribunal dealing with appeals about special educational needs is at least partially inquisitorial. Inquisitorial is in this context contrasted with “adversarial” and refers to the way in which the Tribunal panel hearing the case will approach it. It is usual for English Courts to operate a purely adversarial approach, where the Judge says very little and relies on the parties knowing the law and putting their cases forward in full. An inquisitorial approach is one where the Judge or panel are much more interventionist – they inquire into the parties’ cases and ask questions. Having drawn that distinction, it is worth pointing out that as there are increasing numbers of Litigants in Person in the Court system and very considerable demands on Court time there are times when cases in the Courts are being managed in a style closer to inquisitorial than the very traditional purely adversarial one.
Judges sitting in special educational needs cases are trained to do so. Specialist members (still sometimes called “wing members” as they sit either side of the Judge when there’s a three person panel) are also trained. You should therefore be in a position where your Judge knows the law well. But Judges, like the rest of us, are not infallable, they don’t know everything and sometimes get things wrong. [This the very reason for the existence of courts of appeal – to put right cases that have gone wrong].
The level of skill and knowledge of those presenting cases for Local Authorities is hugely variable; sometimes Local Authorities will instruct barristers with specialist knowledge and skill in this area, some Local Authorities will use external solicitors, some have in house solicitors. If you have a specialist, qualified lawyer acting for the LA, they can be expected to behave in accordance with their professional obligations, but they are there to put forward their client’s case.
If you’re in this position and you don’t have your own representation, you are at a disadvantage, however much your Judge does to ensure the hearing is procedurally fair, it’s like you’re starting a football match, against a Premiership team, when you’ve never played football before.
Sometimes non specialist lawyers are asked to advise both families and Local Authorities on special educational needs cases. The procedural rules for Tribunal cases will be reasonably familiar to lawyers practising in other Tribunals and in general civil litigation (as they broadly follow (but not entirely) the Civil Procedure Rules, which are used in litigation in the Courts (rather than Tribunals). The substantive law has to be sought out – both in legislation and case law. Non specialists lawyers can make things take longer because they don’t know what they’re doing so fail to concede things they ought to concede. Those who attend hearings are likely to be reasonably experienced in presenting cases in other Courts/Tribunals, where the expected style of presentation is quite different to that in SEN Tribunals.
Sometimes LAs have cases presented by experienced Case Officers; those who’ve been around for some time nearly always become competent at doing so and you will be at a disadvantage against one of these people if you don’t have representation. Unfortunately, one of the consequences of the public spending cuts over recent years has been experienced case officers leaving LAs.
Sometimes things can be very difficult in another way; the LA has the case presented by someone without the training or knowledge to do so or who is terribly overworked and not effectively supported. In these cases, things very often take longer because of the LA’s representative’s inexperience or lack of knowledge.
So, in general terms, representing yourself in an SEN case cannot be recommended.
If you want representation your options include:
1. Solicitors with a specialisation in this area
2. Barristers able to take Direct Access Work who are specialists in this area.
3. Cilex trained lawyers who are specialist in this area
4. Charities like SOS!SEN and Ipsea who are experienced in this area
5. Other independent consultants, with a variety of levels of training and expertise.
Bear in mind that the advantage of using specialist lawyers is that there are requirements for practising lawyers to have professional indemnity insurance and there are regulatory bodies, so if things go wrong, there is a forum for complaints. [I know I have said this in other places on the website, but it bears repeating because the penalties for holding yourself out as practising as a lawyer when you are not one are significant. KJM Legal is not yet a body recognised by the SRA as a Solicitors’ practice. I will be seeking such authorisation once I have moved house, but don’t have it at the moment]