Statement on the Special Educational Needs Tribunal for Wales

In my paving document, The Learning Country, I first expressed my intention to develop for Wales a distinct special educational needs tribunal. The Education Act 2002 amends the 1996 Act to allow for the establishment of a Special Educational Needs Tribunal for Wales/Tribiwnlys Anghenion Addysgol Arbennig Cymru.

The current tribunal, which operates on an England and Wales basis, was established in 1993 and, last year, under provisions in the Special Educational Needs and Disability Act 2002, was reconstituted to become the SEN and Disability Tribunal. Under existing arrangements, the Assembly Government makes a contribution to the programme and running costs of the England and Wales tribunal.

I am pleased today to acknowledge  the important role that the existing England and Wales tribunal has played since its inception. Parental recourse to appeal against local authority decisions about assessment, provision and delivery of education for children with SEN is an important right. Certainly, it sits easily with Assembly Government’s  policies of focusing on parental and pupil inclusion in the decision- making processes that affect pupils.

Much, though, has changed since 1993. The establishment of the National Assembly for Wales and the consequent devolution of educational matters, including, of course, special educational needs, to the Assembly Government is a prime example. It befits a modern, post-devolution Wales to have institutions that reflect the particular needs, conditions and aspirations of the country.

Since April 2002, Wales has, for the first time, had its own distinctive Special Educational Needs Code of Practice. The Code gives guidance on the assessment of, and provision for, special educational needs. LEAs and schools must have regard to the Code and, where there have been departures from it, parents may appeal to the tribunal. Before making an appeal, however, we would expect parents to have been offered an opportunity to avail themselves of the authority’s disagreement resolution service, as set out in the Code of Practice. This neutral service aims to avoid the polarisation of positions. Using it does not, of course, preclude parents from making an appeal to the tribunal. The SEN Code of Practice for Wales is distinct from the Code in England and to cater for these differences, and possible further incremental divergence in the future, it seems entirely logical  to establish a separate and distinct tribunal.

The Welsh tribunal is to be established from today, 1st April, with its administrative headquarters in Llandrindod Wells. It will consider appeals from 1 September and will hear them, in locations across Wales, within prescribed timescales – the first appeals are likely to be heard in December. Under interim arrangements, the SENDIST will continue to hear appeals received before 1 September. In the case of disability, which is not a devolved function, the Welsh tribunal will hear  such  appeals against perceived discrimination on the basis of disability “under licence”.  It will, therefore, need to do so against England and Wales criteria.

I should stress that, although its operation will be funded wholly by the Assembly, the decisions reached by the tribunal will continue to be independent of government.

The current regulations covering the operation of the tribunal took account of the future establishment of the Welsh tribunal and will, in the first instance at least, govern the appeals processes for both tribunals.

I am currently awaiting information from the Lord Chancellor’s Department about the outcomes of recent interviews to appoint a fee-paid part-time president for the tribunal. The secretariat of the tribunal will remain a civil service function and I understand that appointments  are to begin to be made shortly.

Once it is staffed, the tribunal will have an important opportunity to establish user-groups to ensure that the needs of all stakeholders, be they parents, pupils, LEAs or support groups, are taken fully into account. There is a clear opportunity to learn from and build upon the existing good practice. I am keen, too, that that tribunal should be able to function through both English and Welsh languages, from dealing with initial enquiries, to lodging appeals, to having them resolved and being informed of decisions. The current tribunal has a Welsh language scheme and appeals can be heard in either language, but the establishment of a new tribunal will allow for modifications to be made, where necessary.

The president will prepare an annual report and this will provide information about language as well as other appeal trends in different parts of the country – data that will be important, not least in determining appeal prevalence, possible areas of shortcoming and the mapping of future SEN provision.

I trust that the tribunal will continue to provide an important service and that it will offer the capacity to adapt to changes in the field of Welsh special educational needs. I would, therefore, warmly commend it to you.