Shadow Counsel General and North Wales MS Mark Isherwood has again raised concerns that vulnerable children and their families in Wales are being let down because neither the Special Educational Needs Tribunal for Wales, nor it successor body, has any enforcement powers.
Mr Isherwood first highlighted the issue with the Counsel General in 2021, and in yesterday’s meeting of the Welsh Parliament, responding to the Statement by the Counsel General and Minister for the Constitution: Tribunal Reform and Wales’s Evolving Justice Landscape, Mr Isherwood, stressed that it continues to be a problem and asked how he intends to address it.
Speaking in the Chamber, he said:
“I previously raised concerns with you that vulnerable children and their families in Wales are being let down because neither the Special Educational Needs Tribunal for Wales, nor it successor body, has any enforcement powers and cannot take further enforcement action when the relevant public bodies fail to carry out their orders.
“Quoting in September 2021 from the President of the Welsh Tribunals' Annual Report then, I stated that the report refers to the Special Educational Needs Tribunal for Wales, SENTW, referring to ‘the clear need to ensure that the education of vulnerable children is not compromised’ and ‘to the transition from SENTW to the Education Tribunal’.
“In your reply, you stated: “I think the issues around the tribunals, the organisation of the tribunals, and the decisions of the tribunals are going to be a matter for what I think will be a Tribunals Bill, where all these issues are going to have to be looked at”.
“How, therefore, do you propose to address this now, where this remains a recurrent theme in my casework, the Tribunal has confirmed that the new legislation does not change how compliance with Tribunal Orders are dealt with, although the orders are legally binding, the Tribunal still has no enforcement powers, and although a Judicial Review could be brought against the Local Authority in the High Court, this is clearly beyond the means of the vast majority of affected families?”
Mr Isherwood also questioned the Counsel General over how the new tribunal system proposed for Wales will operate.
He said:
“The concept of Separation of Powers between the legislature, i.e. Senedd; Executive, i.e. Welsh Government; and the Judiciary has long applied in and across the UK, to prevent the concentration of power by providing checks and balances. How, therefore, will the proposal in the White Paper – “A new Tribunal System for Wales” for the creation of a new structurally independent arms-length body to administer the First-tier Tribunal for Wales and the Appeal Tribunal for Wales, operate in this specific context?
“The concept of separation of powers between legislature—i.e. Senedd—executive—i.e. Welsh Government—and judiciary has long applied in and across the UK to prevent the concentration of power by providing checks and balances. How therefore will the proposal in the White Paper 'A New Tribunal System for Wales' for the creation of a new structurally independent arm's-length body to administer the first-tier tribunal for Wales and the appeals tribunal for Wales operate in this specific context?”
He added:
“Your White Paper also proposes: the creation of a First-tier Tribunal for Wales with a chamber structure; the creation of an Appeal Tribunal for Wales; To what extent will this replicate the structure introduced by the UK Tribunals, Courts and Enforcement Act 2007, in which Tribunals are split broadly into the First-tier Tribunal to hear cases at first instance, and an Upper Tribunal to hear appeals from the First-tier Tribunal, with both the First-tier Tribunal and the Upper Tribunal split into a number of specialist chambers?
“Under the UK Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal there is the possibility of appeal to the Court of Appeal and from there to the Supreme Court. Will this safeguard also apply to the new tribunals system you propose for Wales? You propose what you describe as simplified and coherent approaches to the appointment of tribunal members and complaints across the new tribunal system. How will these ensure on merit, rigor and independence from the Executive and Legislature?”