Consultation Paper No 1
EDUCATION (ADDITIONAL SUPPORT FOR LEARNING) (SCOTLAND) ACT 2009 (the 2009 Act)
The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Amendment Rules 2009
CONSULTATION PAPER NO 1.
The Education (Additional Support for Learning) (Scotland) Act 2004 (the 2004 Act) introduced a new system for identifying and addressing the additional support needs of children and young persons who face a barrier to learning. References to young persons are to those aged 16 or 17 who are still receiving school education.
The 2004 Act made provision for the establishment of the independent Additional Support Needs Tribunals for Scotland (the Tribunal). The Tribunal hears and decides appeals made by parents against the decisions by or failures of education authorities in relation to a co-ordinated support plan.
For the purposes of the 2004 Act a child or young person will require a co-ordinated support plan for the provision of additional support if-
- an education authority is responsible for the school education of the child or young person;
- the child or young person has additional support needs arising from one or more complex factors or multiple factors;
- those needs are likely to continue for more than a year;
- those needs require significant additional support to be provided by the education authority in the exercise of any of their other functions as well as in the exercise of their functions relating to education or by one or more appropriate agencies (within the meaning of section 23(2)) as well as by the education authority itself.
Reference to the Tribunal may also be made regarding the refusal of placing requests in certain circumstances.
In determining all its decisions and directions, the Tribunal must take account of the code of practice published by the Scottish Ministers. The 2004 Act also provides for the Tribunal to be governed by rules of procedure and regulations separate from the code of practice.
2. LEGISLATIVE FRAMEWORK
The 2004 Act
Section 17(1) of the 2004 Act provides that the Tribunal is to be constituted to exercise the functions conferred on a Tribunal by virtue of the 2004 Act.
Subsection (2) provides that there is to be an officer known as the President of the Tribunal appointed by the Scottish Ministers. The President's functions are conferred on him by virtue of the 2004 Act. Schedule 1 makes further provision as to the constitution and procedures of the Tribunal including the appointment and functions of the President and administrative and other matters in connection with the Tribunal and the President.
A young person (where they have capacity) or the parent of a child or a young person (who does not have capacity), may refer to the Tribunal certain decisions, failures or information in relation to a co-ordinated support plan relating to any child or young person for whose school education an education authority is responsible. Section 18 of the 2004 Act specifies the types of referral which may be made and by whom. Section 20 of the 2004 Act confers on the Scottish Ministers a power to extend the categories of decision, failure or information which can be referred.
An appeal on a point of law to the Court of Session lies against the decision of the Tribunal (section 21 of the 2004 Act). The Court of Session may allow the appeal and remit the case back to the Tribunal or to a differently constituted Tribunal for reconsideration at the same time issuing directions as it considers appropriate. The education authority and the person who made the referral under section 18 of the 2004 Act have the right to appeal.
Section 18 of the 2004 Act prescribes the references that may be made to the Tribunal. If an education authority are responsible for providing school education for the child or young person, then the parent of the child or young person (if the young person lacks capacity to do this), or the young person themselves, may make a reference to the Tribunal.
Subsection (3) lists the matters that can be referred to the Tribunal. These are -
- decision of an education authority on whether or not a co-ordinated support plan is required or continues to be required,
- failure by an education authority to prepare a co-ordinated support plan in the required time,
- decisions of the education authority about information contained in a co-ordinated support plan relating to:
- the reasons for the individual's need for additional support,
- the planned outcomes to be achieved,
- the additional support required to achieve the planned outcomes,
- who will provide the additional support,
- failure by an education authority to carry out or to complete a review of the plan by the required time,
- decision of an education authority to refuse to carry out an early review of the plan,
- decision by an education authority to refuse a placing request to a specified school, in particular circumstances.
Where information in the co-ordinated support plan is referred to a Tribunal, there cannot be a further reference on the same information until an updated plan is issued following its next review. The information being referred does not need to have been changed from the previous version of the plan so long as the plan has been reviewed.
References relating to refusal of a placing request can be made to a Tribunal if, at the time the request was refused, a co-ordinated support plan has been prepared for the child or young person concerned, or a plan is about to be prepared or if a reference has been made to the Tribunal over the decision that a plan is not required. Referrals on refusal of placing requests can only be made once in each 12 months unless the plan has been reviewed in that period, or a Tribunal has ordered a plan to be amended or prepared.
Section 19 of the 2004 Act specifies the powers that a Tribunal has in relation to references. The Tribunal may either confirm the authority's decision that a co-ordinated support plan is needed, or not needed, or overturn the decision and direct the authority to take specific action within a specified time. This also applies where the education authority have decided not to comply with a request to review a co-ordinated support plan earlier than the required 12 month period.
Where a reference relates to the education authority's failure to prepare a plan or their failure to conduct or complete a review of the plan within the time required, then the Tribunal can require the authority to rectify this. Where a reference relates to information in a plan, the Tribunal may confirm the information or direct the education authority to amend the information.
Where a reference relates to an education authority's refusal of a placing request, as described in section 18, then the Tribunal must consider the statutory grounds of refusal and the appropriateness of the refusal for the individual child or young person. The statutory grounds of refusal are listed in schedule 2. The Tribunal may confirm the decision to refuse the placing request, or they may direct the education authority to amend the co-ordinated support plan and place the child in the school specified in the placing request.
In considering a reference relating to obtaining a co-ordinated support plan, if the Tribunal confirms the education authority's decision that the child or young person does not require a plan, then the Tribunal may refer any related appeal on a refused placing request to the education authority's appeal committee (set up under section 28D of the 1980 Act). If the Tribunal does this, then the education authority's appeal committee will consider the appeal on the refused placing request and either confirm or overturn the education authority's decision, as they will do for all other appeals on refused placing requests not connected with a co-ordinated support plan.
In determining all its decisions and directions, Tribunals must take account of the code of practice published by the Scottish Ministers (under section 27). The code of practice provides guidance to education authorities and others about how they should exercise their functions under this Act.
The 2009 Act
The 2009 Act makes the following adjustments to the 2004 Act in relation to Tribunals:
- provides that following the refusal of an out of area placing request in respect of a child or young person who has a co-ordinated support plan, is being considered for a co-ordinated support plan, or in respect of whom the education authority have decided does not require a co-ordinated support plan and that decision has been referred to the Tribunal, a parent or young person is able to appeal the decision to refuse the request to the Tribunal. Where the placing request is to a special school the decision to refuse the request will be referable to the Tribunal whether or not a co-ordinated support plan is involved.
- enables the decision of an education authority refusing a placing request in respect of a place in a Scottish special school to be referred to the Tribunal and also allows the decision of an education authority refusing a placing request in respect of a place in a school in England, Wales and Northern Ireland which is a school making provision mainly or wholly for children or young people with additional support needs to be referred to the Tribunal.
- provides that when hearing a placing request appeal in respect of a place in a special school, the Tribunal has the power to confirm the decision of the authority or overturn the decision of the authority and specify when the placing request should commence and make any amendments to a co-ordinated support plan.
- extends the power of the Tribunal, when considering a placing request appeal, to enable it to specify a time scale for placing the child in the school specified in the placing request.
- ensures that any reference transferred back to the sheriff from the Tribunal will be treated as if it were an appeal made directly to the sheriff in the first instance.
- permits the Tribunal to consider any placing request appeal, where a co-ordinated support plan has been prepared or is being considered, at any time before final determination by an education appeal committee ( EAC) or sheriff.
- requires the Scottish Ministers to secure the provision of an advocacy service to be available on request and free of charge to support parents and young people in Tribunal proceedings.
- extends the types of references that may be made to the Tribunal to include failure by the education authority to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan which is necessary for the child or young person to achieve their educational objectives.
- extends the power of the Tribunal to enable it to require the education authority to take action to rectify a failure by the authority to provide, or make arrangements for the provision of, the additional support contained in a co-ordinated support plan which is necessary for the child or young person to achieve their educational objectives. It also enables the Tribunal to specify a timescale within which such action must be taken.
- extends the circumstances in which the decision of an education authority to refuse a placing request can be referred to a Tribunal, to include those decisions where an education authority has issued its proposal to establish whether a co-ordinated support plan is required.
- extends the circumstances in which parents and young persons can make references to the Tribunal consequent on certain procedural failures of the education authority.
- extends the jurisdiction of the Tribunal to allow it to consider references in relation to an authority's failure to comply with its duties in terms of post-school transitions.
- enables the Scottish Ministers to make rules to allow a convener sitting alone to consider certain references and to allow the Tribunal to review its decisions in certain specified circumstances.
- provides that following a decision of a Tribunal that requires an education authority to do anything, the President of the Tribunal will have the power to require the authority to provide him or her with information about the authority's implementation of the Tribunal decision.
- provides the President of the Tribunal with the power to refer the matter to Scottish Ministers where he or she is satisfied that the authority is not complying with the Tribunal decision.
3. PROPOSED CHANGES TO THE LEGISLATION
i. APPEALING AN OUT OF AREA PLACING REQUEST TO THE TRIBUNAL
The 2009 Act
The 2009 Act enables all parents of children with additional support needs and young people with additional support needs (including those with a co-ordinated support plan) to submit a placing request directly to an authority outwith the authority in which they live. The 2009 Act also provides that where an out of area placing request is refused by an authority in respect of a child or young person with a co-ordinated support plan, the parents or young person will have the ability to refer the decision to refuse the request to the Tribunal.
It will be necessary to amend the definition of "authority" in the Tribunal Rules to accommodate references to the Tribunal in respect of out of area placing requests, where the authority making the decision is not the authority responsible for the child's education. Further amendments will be required to enable the home authority to appear or be represented at a hearing involving an out of area placing request where they have information about the child which would assist the Tribunal in reaching its decision. In such cases, the home authority will not be 'party' to the dispute.
If there are 2 disputes before the Tribunal, one involving an out of area placing request and the other a co-ordinated support plan issue, these disputes can be conjoined under rule 20.
Q1. In light of the provisions contained in the 2009 Act which enable parents and young people to submit out of area placing requests, do you agree that the definition of "authority" in the Tribunal Rules should be amended to include, in respect of out of area placing request disputes, an authority that is not responsible for the education of the child or young person?
Q2. If you do not agree with Q1, please state your reasons why.
Q3. In cases where there are 2 disputes before the Tribunal, one involving an out of area placing request and the other a co-ordinated support plan issue, are you content that these disputes are able to be conjoined under rule 20. if appropriate?
Q4. If you disagree with Q3, please state your reasons why.
ii. ENABLE THE TRIBUNAL TO REVIEW, VARY OR REVOKE ITS DECISIONS
The 2004 Act
The 2004 Act does not currently allow for the Tribunal to review its decisions. Therefore, the only way in which a decision can be legally challenged is by a referral to the Court of Session on a point of law with attendant costs.
The 2009 Act
The 2009 Act extends the jurisdiction of the Tribunal to enable it to review, vary or revoke any of its decisions, orders or awards in certain circumstances.
The Tribunal Rules will specify the exact circumstances under which the Tribunal can review, vary or revoke any of its decisions, orders or awards.
The Scottish Committee - Administrative Justice & Tribunals Council Guide to Drafting Tribunal Rules prescribes that the Tribunal may review and set aside or vary the relevant decision if the Tribunal is satisfied that:
1. its decision was wrong because of an error on the part of the Tribunal or its staff: or
2. a party, who was entitled to be heard at a hearing but failed to be present or represented, had a good reason for failing to be present or represented; or
3. new evidence, to which the decision relates, has become available since the conclusion of the proceedings and its existence could not reasonably have been known or foreseen before then; or
4. otherwise the interests of justice require.
Q5. Do you agree that the Tribunal should be able to review its decisions in all of the 4 instances listed above?
Q6. If you do not agree with Q5, in which of the 4 instances do you think it would be inappropriate for the Tribunal to review its decisions? Please state your reasons.
Q7. Are there other instances in which you think the Tribunal should be given the power to review its decisions? Please state the instance and your reasons for this.
iii. ENABLE THE CONVENER OF A TRIBUNAL TO SIT ALONE TO DISPOSE OF A REFERENCE
Section 18(3)(c) of the 2004 Act provides for the Tribunal to consider a procedural timescale failure of the education authority to prepare a co-ordinated support plan by the time required in the Co-ordinated Support Plan Regulations.
Experience to date shows that references made under section 18(3)(c) are often unopposed and the facts are seldom disputed. The procedure for considering such references is disproportionately complex.
As part of the consultation on the 2009 Act, consultees were asked for their thoughts on whether a new Tribunal document based process should be introduced to expedite such references and 84% of the consultees who responded agreed that this was a good idea.
Rule 26 of The Additional Support Needs Tribunals for Scotland (Practice and Procedure) Rules 2006 states that a Tribunal may, in certain circumstances, decide a reference without a hearing. Those circumstances are:
1. where no response is submitted to the Secretary within the time appointed by rule 10 or any extension of time allowed under rule 19;
2. where the authority states in writing that they do not resist the reference;
3. where the authority withdraws their opposition to the reference; or
4. where both parties in writing to dispense with a hearing.
The 2009 Act
The 2009 Act enables the Scottish Minister's to make rules regarding the ability of a convener sitting alone to consider those references in which an education authority has failed to comply with statutory time limits.
The Tribunal rules will be amended to introduce a documents only based process to expedite those references in which the authority have established that the child or young person requires a co-ordinated support plan, but they have failed to prepare a plan by the time required by regulations.
Due to the fact that there has already been consultation on this proposal, no further consultation is required on the change.
Provision will be required to enable referrals of this nature to be considered by a convener sitting alone.
It is proposed that the expedited case statement period for such cases should be 15 days. It is also proposed that parties will be able to apply to the convener for an extension if they are finding it difficult to meet the 15 day case statement period (see paragraph iv below).
As a result of the above, it will not be appropriate for the Tribunal to consolidate a reference made under section 18(3)(c) with any other type of reference ( e.g. the refusal of a placing request) where the former is being considered under the expedited process. Therefore, an amendment will be required to rule 20 to specify that where the reference relates to such a timescale failure, the reference shall not be consolidated with any other type of reference.
It is also proposed to amend rule 26 to enable a convener alone (as opposed to the Tribunal) to consider those references for which the circumstances detailed in paragraph 2 apply.
Q8. Are you content for a convener alone to consider those referrals which involve the breach of a statutory timescale as laid down in Regulation?
Q9. If you are not content with Q8, please provide your reasons.
Q10. Do you think that 15 days is reasonable for the expedited case statement period?
Q11. If you answered 'no' to question Q10, what duration of case statement do you consider appropriate? Please state your reasons.
Q12. Do you agree that references involving a timescale failure should not be consolidated with references of a different nature?
Q13. If you do not agree with Q12, please state your reasons.
Q14. Do you agree that rule 26 should be amended to enable a convener alone (as opposed to the Tribunal) to consider references in which the circumstances detailed in below apply?
- Where no response is submitted to the secretary within the time appointed by rule 10 or any extension of time allowed under rule 19;
- Where the authority states in writing that they do not resist the reference
- Where the authority withdraws their opposition to the reference; or
- Where both parties agree in writing to dispense with a hearing
Q15. If you do not agree with Q14, please state your reasons.
iv. ENABLE THE CONVENER TO SHORTEN A CASE STATEMENT PERIOD ON THE APPLICATION OF EITHER PARTY OR AT THE CONVENER'S DISCRETION
Rule 8(6) allows the case statement period to be extended or shortened when the case relates to a placing request refusal. This is anomalous and presents a difficulty if there are two references for the same child and the provision is applied because the hearings cannot be consolidated.
There are many circumstances in which it would be in the best interests of the child to extend or shorten the case statement period. It would be more flexible and equitable if it was open to parties to apply to the convener, or for the convener to have the discretion to amend the length of the case statement period without application being made (subject to parties' views being taken into account), regardless of whether a placing request was involved. This has particular merit where a parent is unrepresented as it empowers the convener to manage the case to safeguard the parent's interest.
It is proposed to amend rule 8(6) to allow an application to be made to the convener, or for the convener acting on his or her own initiative, to alter the case statement and to require the convener to seek written representation from any other party or parties before making a decision.
Q16. Should a convener have the ability to extend or shorten the case statement period regardless of whether a placing request is involved?
Q17. If your answer to Q16 is no, please state your reasons.
v. CHANGE TO THE APPELLANT'S CASE STATEMENT PERIOD
Rule 8(2) sets the case statement period at 30 working days. Both rules 8(3) and 10(1) state that the parent or young person (the appellant) and the authority (the respondent) must submit all written evidence to Tribunal by the end of the 30 day case statement period (unless an extension has been granted under rule 19). Rule 9(1)(iii) requires the Secretary to distribute copies of the papers submitted by each party at the end of the case statement period. The Secretariat cannot edit the bundle of papers to be issued.
Due to the fact that parties lodge their evidence at the same time, substantial duplication of papers becomes inevitable.
It is not in the best interests of the child or young person to extend the overall duration of the process. Therefore, it is proposed that the case statement period for the parent or young person be shortened to 20 days. The authority will then have the remaining 10 days within which to draft their response to the documents submitted by the parent or young person. This keeps the framework to the original total of 30 days.
It is important to note that if the proposal at paragraph iv. above is supported, the convener will have the power to extend the case statement period if the parent or young person is experiencing difficulty in preparing the statement within the 20 day period.
It is also recognised that where the reference concerns a placing request refusal, the parent or young person may not know the grounds of refusal on which the authority will rely. In order to address this, on receipt of such a reference, the convener will direct the authority (under rule 15) to provide the necessary information to enable the parent or young person to complete the case statement.
Other options considered
Officials did consider asking the authority to submit all their papers first as they have greater resources. However, this could prove challenging in cases where the authority are not clear on the extent of the dispute and it could result in unnecessary papers being produced.
Q18. Do you agree that the case statement period for either the appellant or respondent should be shortened in order to reduce the duplication of papers?
Q19. If you do not agree with Q18, please state your reasons why.
Q20. Are you content for the case statement period of the appellant (parent or young person) to be shortened?
Q21. If you are not content with Q20, please tell us why.
Q22. Do you think that the case statement period of the respondent (the authority) should be shortened instead?
Q23. If you answered 'yes' to Q22, please state your reasons.
vi. AMENDING A REFERENCE
Rule 8(4) allows a reference to be amended "in exceptional circumstances". To date there have been several references on the grounds of failure to meet timescales which have been followed by a decision to refuse to prepare a co-ordinated support plan before the original reference has settled e.g. an authority fails to prepare a co-ordinated support plan within the 16 week statutory timescale and the parent lodges a reference with the Tribunal. However, towards the end of the case statement period, the authority withdraws their opposition (allowing the reference to be disposed of without an oral hearing) and immediately issues the co-ordinated support plan, calling it the final version. The parent then wishes to dispute the contents of the co-ordinated support plan, and in order to do this they must submit a new reference to the Tribunal. This is not in keeping with the overriding objective and does not represent appropriate economy in terms of expense or time.
Removing the qualifying "In exceptional circumstances" from rule 8(4) enables the Tribunal to adopt a more enabling approach and delivers a more responsive remedy for appellants. In the example given above, if the convener or Tribunal gave permission at a hearing, the appellant would be able to change the terms of the reference and the original case statement period and hearing date would stand.
Q24.Are you content for 'In exceptional circumstances' to be removed from rule 8(4), thus enabling the appellant to amend the reference at any time, if permission is given by a convener or a Tribunal?
Q25.If you are not content with Q24, please state your reasons.
vii. DISTRIBUTION OF DOCUMENTS BY THE SECRETARY
Typically, there is about 3 weeks between the end of the case statement period and the hearing. This period is necessary to allow compilation and distribution of bundles of documents and a period for parties and the Tribunal to consider the contents of the bundle. Rule 9(2) provides that the Secretary can only circulate copies of any documents received after the end of the case statement period if the case statement period has been extended under rule 19.
It was originally envisaged that by the end of the case statement period, all documentary evidence would be submitted by both sides and no further evidence would be received in all but the most exceptional circumstances. However, in practice, in the intervening period further submissions are often submitted. Where there is sufficient time, the Secretary must forward late evidence to the convener who will consider whether to extend the case statement period under rule 19 and admit the evidence. If the convener decides to extend the case statement period (and in doing so admit the evidence), the Secretary has to inform the other party that the case statement period has been extended and copy the evidence admitted. The Secretary cannot copy the evidence to the other party unless the case statement period has been formally extended.
In the majority of references, evidence is submitted after the case statement end date. Where the evidence is very late there is no choice but for the Tribunal to consider them as a preliminary matter at the beginning of a hearing. This can lead to a break in the proceedings or even an adjournment to consider the late productions. If the productions are lodged very close to the hearing date, there is no way round this.
To enable the Secretary, where time allows, to circulate all late submissions in advance of the hearing allowing parties to consider and at least prepare their representations without the need for a break in proceedings and without the need for a formal order from the convener extending the case statement period.
This could be achieved by amending rule 9(2) to read as follows:
"If a reference, a statement of case, amendment, supplementary statement, response, written representation, written evidence or any other document or applicationis delivered to the Secretary at any time, the Secretary shall send a copy of it to the other party to enable representations to be made within such time limits as may be prescribed by a convener or by a Tribunal at a hearing."
Q26. Do you agree that rule 9(2) should be amended to enable the Secretary to circulate all late submissions in advance of the hearing?
Q27. If you do not agree with Q26, please state your reasons.
viii. REMOVE THE ABILITY OF THE SECRETARY TO AMEND THE DATE OR TIME OF A HEARING
Under rule 25(c) the Secretary can change the date, time or location of the hearing provided parties are given 5 working days notice. However, under rule 30 a convener may, on his or her own initiative, or on application by either party, postpone any hearing without notice. These rules are at odds with one and other.
In practice it would be inconceivable for the Secretary to alter the date of the hearing without the agreement of the convener. It is feasible that the Secretary could have grounds for altering the venue but the date and time are ultimately a matter for the convener.
Amend rule 25(3) to remove ' date, time or' (which appears twice).
Q28. Should the ability of the Secretary to alter the date and time of a hearing be removed?
Q29. If you disagree with Q28, please state your reasons.
ix. CLARIFY THE ROLE OF THE SUPPORTER DURING THE HEARING
Rule 27(7)(c) enables parties to bring a supporter to the hearing, although the limitations of that role are not specified.
Early Tribunals have found that parties used the scope afforded to bring someone to act as a witness or additional representative.
Amend rule 27(7)(c) to clarify that a supporter cannot act in the capacity of a witness or additional representative(where there is already a representative).
Q30. Do you agree that rule 27(7)(c) should be amended to clarify that a 'supporter' cannot be called as a witness or as an additional representative where the party is already represented?
Q31. If you do not agree with Q30, please state your reasons.
x. ENABLE ALL PRE-HEARING DIRECTIONS AND DECISIONS TO BE THOSE OF THE CONVENER
Rule 21 on recovery of documents makes this a decision of the Tribunal, whereas rule 22(2) on calling witnesses or adding additional witnesses not listed makes this a decision for the convener. Rule 22(3) makes it a decision of the Tribunal to cite witnesses. Rule 24 only permits a Tribunal to direct a report of an expert whereas in practical terms this requires to be done before the hearing and should be reserved to the convener also, even where there is likely to be consultation with members.
Any rule that relates to preliminary issues should be amended to also provide the convener with the ability to carry out the function/process. It will be at the discretion of the convener whether or not it is appropriate to consult with members. The practical benefit of this is that some decisions require to be made before the composition of the Tribunal is known and they may be exercised by any convener if there is to be a delay in seeking the convener identified for the hearing.
Amend rules 21, 22 and 24 so that these decisions can also be taken by the convener .
Q32. Are you content for the convener to be given the power to carry out preliminary functions/processes?
Q33. If you are not content with Q32, please provide your reasons.
xi. ABILITY OF THE TRIBUNAL TO CONVENE OTHER WITNESSES
While rule 24 enables the Tribunal to appoint an expert where the Tribunal is of the view that such assistance is necessary, in reviewing papers submitted by parties, there have been a number of occasions where the Tribunal would have liked to have heard evidence from a particular person (not an expert) whom neither party has called as a witnesses.
Amend the Tribunal rules to enable the Tribunal, on the application of a party or on its own initiative, to require any person to attend a hearing when that person has information which could assist the Tribunal in reaching its decision, or that person has an interest in the proceedings before the Tribunal ( e.g. a provider of additional support as detailed in a co-ordinated support plan).
Q34. Are you content for the Tribunal to have the ability to call a witness if that witness can assist the Tribunal in reaching its decision, or that person has an interest in the proceedings before the Tribunal?
Q35. If you are not content with Q34, please state your reasons why.
xii. ELECTRONIC REFERENCES
Appellants may complete an electronic reference form and email it to the Tribunal secretariat. As drafted, rule 5 requires the reference to be signed by the appellant. Therefore, on receipt of an emailed reference form, the secretariat prints off the reference and sends it back to the appellant for signature.
Amend rule 5 to provide the Secretary with the discretion to accept electronic references without a signature. A verification process could be developed by the Tribunal to provide some assurance.
Q36. Do you agree that the Secretary should have the discretion to accept electronic references without a signature?
Q37. If you do not agree with Q36, please state your reasons.
xiii. WITHDRAWING A REFERENCE
Where an appellant has a representative it is common for the Tribunal to receive verbal notification from the representative that the appellant proposes to withdraw his or her reference. Under the current rules this is not sufficient for the convener to proceed to dismiss the reference as rule 11 requires a signed notice from the appellant. This leads to an unnecessary delay in disposing of the reference.
In the interests of informality and flexibility, rule 11 should be amended to permit a representative to sign a withdrawal notice to expedite the process. It seems disproportionate not to accept the representative's status when it comes to bringing the process to an end.
Q38. Do you agree that an appellant's representative should be able to sign a withdrawal notice to expedite the process?
Q39. If you do not agree with Q38, please state your reasons why.
xiv. MOVING THE PROVISION RELATING TO THE NUMBER OF WITNESSES
The provision relating to limiting the numbers of witnesses to two presently sits in rule 28 on conduct of the hearing. However, it would be more appropriately placed in rule 22 on witnesses and citation of witnesses.
The provision for a convener to limit a party to leading evidence from two witnesses should be moved from rule 28 (2) to rule 22.
Q40. Are you content for the provision relating to the number of witnesses to be moved from rule 28 to rule 22?
Q41. If you are not content with Q40, please state your reasons why.
xv. EVIDENCE AT A HEARING
Rule 23 provides that at the start of any hearing, a convener or the Tribunal may, on the application of either party or on his, her or its own initiative, determine that a witness be allowed to give evidence by telephone, through a video link or by any other means of communication, if satisfied that this would not prejudice the achievement of the overriding objective.
Rule 29 provides that evidence at a hearing may be given in person or by written statement. It also provides that a party shall only be permitted to submit written evidence after the case statement period has expired, subject to the other party's approval and that of the convener or Tribunal.
In order to have one rule which covers all the forms of evidence that parties can bring to the Tribunal, rule 23 and rule 29 should be combined.
Q42. Do you agree that rules 23 and 29 should be combined?
Q43. If you do not agree with Q42, please state your reasons.
xvi. ORDERS OF THE COURT
Rule 38 outlines the procedures where a decision is remitted to the Tribunal from the Court of Session. There is no mechanism to notify the Tribunal directly of the outcome of any appeal where the Tribunal is not a party to the appeal. The Tribunal almost always takes action as soon as they are aware of the outcome.
The current provision allows 15 working days for a supplementary statement from parties but does not specify when those 15 working days begin. Additionally, a timescale of 15 working days is not realistic for parties to consider the terms of the Court's opinion and prepare a supplementary statement. It is not a rule that the Tribunal have applied. Their current procedure is to hold a conference call to agree the best way to proceed.
It would be more enabling to allow the convener to consider representations from parties and direct the appropriate timescales to take the remitted reference forward.
Q44. Are you content for the 15 working day timescale to be removed and to allow the convener to specify the relevant timescale?
Q45. If you are not content with Q44, please state your reasons why.
xvii. CORRECTION TO RULE 28
Rule 28(8) provides a Tribunal with the power to order all persons to withdraw from the sitting of the Tribunal with the exception the convener and members of the Tribunal and any of the persons mentioned in 27(5)(f) to (j). However, rule 27(5)(f) to (j) does not exist. This should read 27(7)(f) to (j).
Amend rule 28 to read rule 27(7)(f) to (j).
Q46. Are you content for this error to be corrected?
Q47. If you are not content with Q46, please state your reasons why.
Q48. Do you have any other comments on the changes to the Tribunal Rules?