Expert evidence about SEN

August 19th, 2015 by Rachel Kamm

The Upper Tribunal has considered how the First-tier Tribunal should approach expert evidence about special educational needs and provision: The Royal Borough of Kensington and Chelsea v CD [2015] UKUT 0396 (AAC).

In this case, the parents had appealed to the First-tier Tribunal (HESC) about the local authority’s SEN statement for B, who was almost 13 and profoundly deaf. There was a dispute about her special educational needs in relation to class size (Part 3 of the SEN statement) and also which school she should attend (Part 4).

The parents and the local authority each instructed an acoustic engineer to undertake an assessment of the acoustic characteristics of the two schools that were under consideration and each acoustic engineer produced a report. The expert instructed by the local authority concluded that both schools had acoustical strengths and weaknesses, but that relatively straightforward steps could be taken to resolve any issues. The expert instructed by the parents concluded that the noise levels at the local authority’s preferred school were low for a mainstream state school, but significantly higher than the noise levels expected in much smaller classes. His view was that it was very difficult to see how B would not be significantly disadvantaged by having even part of her learning in classes of 20 or more children and therefore the local authority’s preferred school was not suitable.  Neither expert attended the hearing.

The First-tier Tribunal found that it was not appropriate for it to make findings of facts based on the expert reports, commenting that “The contents of the reports had not been agreed and the subject matter of the reports was highly technical. Given the importance of the evidence, if the subject matter and conclusions of the authors was disputed (and the parties indicated at the outset of the hearing that there was no dispute) then the authors of the reports should have been available to give evidence“. The Tribunal found that there should be a maximum class size of 20 (based on the evidence of the Educational Psychologist, SENCO and B’s mother).

The local authority appealed to the Upper Tribunal, which set aside the decision and remitted the appeal for a fresh hearing by a differently constituted First-tier Tribunal.  The First-tier Tribunal had erred in law in how it approached the expert evidence.

The first problem was that the First-tier Tribunal had created a difficult situation for itself by not discussing the expert reports at the start of the hearing. The Upper Tribunal found that it would have been preferable if the First-tier Tribunal had established at the outset of the hearing precisely which parts of the reports were agreed, which parts were not agreed, and, if there were areas of dispute, how the parties were inviting the First-tier Tribunal to resolve the disputed matters (whether by calling the experts to give oral evidence or doing the best it could on the written evidence).

The failure to have this kind of discussion had led to  the First-tier Tribunal discovering that there was an issue in relation to the expert evidence when it read the parties’ written closing submissions after the hearing was adjourned at the end of the oral evidence.  The Upper Tribunal found that, contrary to the suggestion in the First-tier Tribunal’s judgment, the local authority in fact had raised an issue in relation to the expert evidence in its written closing submissions, inviting the First-tier Tribunal to prefer the expert that they had appointed on the question of class size. The Upper Tribunal commented that even at that stage, the First-tier Tribunal still had options which could have resolved the problem: it “may have called for further written submissions on how to resolve the issues between the experts. It may have decided to hold a further hearing so that the experts could have been called to give evidence. Or it may have considered that any further submissions or evidence would have been entirely disproportionate, and made findings on the basis of the written reports. Instead, the tribunal simply decided that it was not appropriate to make findings on the basis of the experts’ reports “as the contents of the reports had not been agreed and the subject matter of the reports was highly technical.” That was not an adequate reason for refusing to consider and make findings on the expert evidence and, in [the Upper Tribunal’s] judgment, it constituted an abdication of responsibility on the part of the tribunal“. This was the reason why the decision was set aside.

The Upper Tribunal went on to give the following guidance:

“32. On the basis of what has happened in this case, it may be helpful if I make some observations on how what may be described as “non-standard” expert evidence may be dealt with. It is crucial that I emphasise that I am not, here, considering the “standard” type of evidence of educational psychology, speech and language therapy and occupational therapy.

33. As in all cases, the parties and tribunal must bear in mind the provisions of the overriding objective of rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the First-tier Tribunal Rules”) – that dealing with a case fairly and justly includes dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.

34. Further, whilst I am, of course, mindful of the fact that the Civil Procedure Rules 1998 do not apply to First-tier Special Educational Needs and Disability Tribunals, and that un-necessary formality in those tribunal proceedings must be avoided, nevertheless, in my judgment Part 35 of the Civil Procedure Rules provides a useful backdrop in relation to case management decisions concerning expert evidence in such tribunals, and I draw upon it.

35. With that introduction, the starting point must be that expert evidence should be restricted to that which is reasonably required to resolve the appeal. If a party intends to seek to rely upon expert evidence, then pursuant to the duty under rule 2(4) of the First-tier Tribunal Rules, this should be communicated to the other party as soon as possible. If (as is likely in most cases) the issue falls within a substantially established area of knowledge, where it is not necessary for the tribunal to sample a range of opinion, it may well be that the evidence should be provided by a written report of a single expert jointly instructed by the parties. 

36. Any issues regarding expert evidence should, of course, be apparent from the parties’ respective Attendance Forms. Upon perusal of those Attendance Forms a tribunal judge may wish to decide whether and, if so, how to exercise his or her discretion to give directions as to expert evidence. In doing so, he or she will be mindful of: (i) rule 15(1)(c) of the First-tier Tribunal Rules, which provides that, without restriction on its general case management powers, “the tribunal may give directions as to … whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence,” and (ii) the observations which I have made at paragraphs 33 – 35 above. It may well be that the parties would have to make out a strong case either for relying on expert evidence from an expert who had not been jointly instructed, or for requiring oral evidence of an expert at the hearing of the appeal.

37. Further, in giving any case management directions relating to expert evidence it would be helpful to all involved if the tribunal judge were to identify precisely the issues which the experts are to address.

Rachel Kamm, 11KBW, @Kamm11KBW

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