Trials and tribulations: the educational psychologist and the SEND tribunal

by Julia Howe

blur close up focus gavelWithin the culture of local authority educational psychology services, SEND tribunals loom large as encounters that most EPs would wish to avoid. This is despite the fact that the chances of attending a tribunal are fairly rare. In 17 years as a local authority EP I have attended 2 tribunals, prepared reports for a handful more and supervised a small number of colleagues who have been asked to write a report for a tribunal. It is perhaps unsurprising then that little has been written about the experiences of EPs attending tribunals. It was therefore with great interest that I read a recent paper published in Educational Psychology in Practice, written by one of our year 1 trainees, Mary-Lynn Yates, with her then colleague, Halit Hulusi.

The 1981 Education Act established the right for young people and parents/carers to appeal local authority decisions made during the statutory assessment of a young person’s specials educational needs. For example, a decision may be made not to assess, issue or maintain an Educational and Health Care Plan. When a resolution cannot be found an independent Special Educational Needs and Disability Tribunal may be convened. These tribunals are one of the most stressful aspects of the special educational needs system for all of the participants involved. They come at a point when other attempts to resolve differences and disputes have failed, and when emotions are often running high.

Yates and Hulusi (2018) suggest that much of the stress for EPs is caused by the adversarial nature of the tribunal system. EPs are trained to work as problem solvers, helping to find a consensus when people are in conflict. So the “win” or “lose” language of the tribunal is very much at odds with how EPs see their role and is unlike their everyday work. As one participant in the research comments: “…that is just not a comfortable position to be in at all and, as I say, I don’t think that it’s helpful for the child really.”

Another difficulty that is raised in the research, concerns who the EP is acting for in the tribunal. The EP is asked to appear as an expert witness to prove impartial and independent advice. My experience is that this is how the tribunal makes use of EP advice. In both of the tribunals that I have attended my reports were used to support the parents’ case, even though my reports had been commissioned by the local authority. This is may not be obvious to parents, as the EP report is usually commissioned by officers within the local authority and in the tribunal the EP is seated on the local authority “side” of the room.

Yates and Hulusi (2018) argue that EPs may be better positioned as mediators within the tribunal system. I agree that this may be a more comfortable position with our skills and that it is a better fit with other parts of our role. However, I’m not sure how this can be achieved within a system where mediation often fails (or fails to take place). Once this happens an EP will be in the position of providing advice for local authority and this EP will be seated on their “side ” of the room. For parents, anyone involved in mediation needs to be demonstrably neutral. My feeling is that in the current tribunal processes this role cannot be taken on by EPs who may also be called as expert witnesses. I am interested in what other EPs think…

Julia Howe is a tutor on the educational psychology trianing course at the University of Birmingham

Mary-Lynn Yates is currently a Year 1 educational psychologist in trianing at the University of Birmingham

Dr Halit Hulusi is Principal Educational Psychologist at Solihull MBC.

A copy of the paper by Yates and Hulusi can be found at:    https://www.tandfonline.com/doi/abs/10.1080/02667363.2018.1459497?tab=permissions&scroll=top#.WzDwHOHNvPI.link

Guidance for expert witnesses at SEND tribunals can be found here: https://www.gov.uk/guidance/send-tribunal-if-youre-asked-to-be-a-witness

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