Clause 19 - Procedure

Part of Special Educational Needs and Disability Bill [Lords] – in a Public Bill Committee at 11:45 am on 3rd April 2001.

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Photo of Tim Boswell Tim Boswell Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Education and Employment) 11:45 am, 3rd April 2001

I always think that a Division in Committee is rather like a good brisk run. It turns everything up a little, but we do not have to continue at the same sprinting pace all the time. Clause 19 is long, complex and mainly procedural, and I reassure hon. Members that I do not want to generate heat or to divide the Committee. However, I want the Minister to respond to some points.

The co-hearing of claims under the special educational needs provisions and the disability discrimination provisions was touched on in another place and in the explanatory notes. There should be a single forum wherever possible, if only to spare individual families from hassle, distress, difficulty and even expense. That is a good and sensible aspiration. On occasion, a family may have good reason to think that two matters are discrete, even if others—an LEA, for example—think that they are the same. In other cases, the tribunal may feel that the issues are separate, although closely related.

I should be grateful for the Minister's guidance on whether separate hearings would be possible, with the same base data. How would that work, and would it satisfactorily cover the field? My day-to-day preference would be one hearing for all concerned, where a determination could be reached on both matters at once. However, it is possible that that would not be appropriate in certain circumstances.

My other points touch on my tribunal experience of some years ago. There is provision for hearings to be conducted in the absence of any member other than the chairman. That seems sensible in cases of indisposition, in which it would be a pity to have to wait for the person concerned to be available again. I was once empanelled on a tribunal in an incredibly unusual case, which had gone, in a manner of speaking, to the full arms race. Leading counsel had been briefed, at great expense. I shall mention, to cheer the Minister up, that the counsel concerned was an extremely distinguished planning silk, who is a leading light of the Society of Labour Lawyers and head of an Oxford college. The Minister may be able to guess who it was.

We listened with amazement to counsel's eloquence for several days, but I was then appointed as a special adviser at the Ministry of Agriculture, Fisheries and Food and immediately disqualified myself from the tribunal. That is about the next worst thing to a judge dying, and the huge expense of the proceedings raised concern. By way of a solution, the parties agreed that I could continue to sit for what was, at that stage, effectively a formal procedure.

Bearing in mind that members of the tribunal, as distinct from the chairman, have experience in special educational needs and disability issues, it may sometimes be sensible for them to carry out an investigation when the chairman is not available. I appreciate that the chairman's presence may be necessary when it comes to judgment. However, I remember a case in which two members with farming experience were sent to study how some agricultural procedure was conducted, or a drainage problem—I cannot remember exactly what. The chairman said, ``You know about those things. Give us a report, I will consider it and it can be included in the judgment.'' I do not think that that is inherently unreasonable, and it would be useful to make provision for it.

Proposed new section 28J(2)(m) provides for

``taxing or otherwise settling costs or expenses''.

The Minister has helpfully explained that the arrangements are supposed not to encourage litigiousness and that they should not, wherever possible, involve the use of lawyers to break the informality of the tribunal. There is a danger that some families may be denied justice if they fear that, in accordance with the British legal principle that costs follow the event, they might suddenly receive a bill for local authority costs in relation to a discrimination case, as opposed to a special educational needs case.

I recall from my tribunal work that, although we were empowered to make an order for costs, and were tempted once or twice to do so, that could be done only when someone had brought a frivolous, vexatious or otherwise inappropriate case. It had to be very extreme for us to proceed in that way. However, people who feel strongly about the way in which their child is taught or provided for should not be deterred from attending a tribunal because the full weight of the law and costs might fall on them if they were unsuccessful. That would add insult to injury.

Proposed new section 28J(5) deals with allowances. It has always been a cause of modest rancour with me that the tribunal on which I served did not pay its members a fee, although it paid expenses. I think that the usual practice that has developed, for example in employment tribunals, is to pay a reasonable rate for the day. If the Minister wants to find good people for the tribunal, she should expect that to be necessary. My recollection is that the special educational needs tribunal operates in that way. However, it might be helpful if the Minister could say something about that when she rises to respond to my points.