Shadow Minister for Social Justice and Shadow Counsel General, Mark Isherwood MS, has 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.
Questioning the Counsel General and Minister for the Constitution in Welsh Parliament yesterday, Mr Isherwood said because of this the Special Educational Needs Tribunal for Wales and it successor body cannot take further enforcement action when the relevant public bodies fail to carry out their orders.
He said whilst a Judicial Review could be brought against the Local Authority, the majority of families do not have the means to pursue this.
Speaking in the Chamber, he said:
“The latest Special Educational Needs Tribunal for Wales's Annual Report shows that of the 149 applications not still pending at the time of publication, only 21 were dismissed, suggesting that the SEN system's operation was broken. Concluding my response to you in yesterday's debate on the President of the Welsh Tribunals' Annual Report, 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 this context, it is of extreme concern to the families I've represented that neither SENTW, nor it successor body, can take any further enforcement action when the relevant public bodies fail to carry out their orders.
“This has been a recurrent theme in my casework past and present. 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. However, as with any public administration, a Judicial Review could be brought against the Local Authority in the High Court, which is clearly beyond the means of the vast majority of affected families. What action, if any, do you therefore propose to address this?”
The Counsel General replied:
“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, because what we are doing is actually creating a new, structured part of the Welsh judicial system, which will incorporate the tribunals and we'll have to look at not only the operation of the tribunals themselves, their independence, but also the way in which the decisions that they carry out are actually either enforceable or operable.”