What witnesses need to do in special educational needs appeals and disability discrimination claims hearings. Includes rules for summonsed and expert witnesses.
Includes information from the withdrawn SEND9, SEND10 and SEND16 guides.
Your role as a witness
As a witness at a Special Educational Needs and Disability (SEND) Tribunal, you should:
- give full, frank and honest evidence
- be fair, impartial and independent, even if you’re employed or paid by one of the sides (‘parties’)
Witnesses to the SEND tribunal can claim for:
- travel expenses
- a fixed amount for loss of earnings
Fill in Form SEND16A: Expenses claim form - witnesses. Send your tickets and receipts with your claim form.
You must send your claim to the tribunal within 30 days of the hearing. The address to send it to is on the form.
You can claim for:
- standard-class rail fares
- bus or tram fares
- mileage (currently paid at 23.8p a mile) if you travel by car
If you’ve lost your tickets or receipts you’ll also need to fill in Form SEND17.
The tribunal only pays taxi fares in exceptional circumstances. Call the tribunal on 01325 289 350 before the hearing to find out if it will pay for this.
Loss of earnings
Witnesses can claim:
- £32.47 in total for up to 4 hours away from work
- £64.95 in total for over 4 hours away from work
The tribunal may check any claims for loss of earnings with your employer.
If you get a witness summons
Either side can ask the SEND Tribunal to require a witness to attend the hearing. This is known as a ‘summons’.
You can get a witness summons if all the following are true:
- one side in the case thinks your participation is essential for a proper hearing
- you’ve said you cannot attend, or the party wants to guarantee that you attend
- the tribunal agrees with the party’s request to summons you
If you get a witness summons and do not attend the hearing, you can be fined up to £1,000.
If you do not think you need to come to the hearing (for example because you’ve already given a written statement), write to the tribunal explaining why.
A tribunal judge will consult the party who asked for the summons and then decide whether to cancel the summons.
If you get a summons fewer than 5 working days before the hearing, the tribunal cannot make you attend.
Who can be an expert witness
To be an expert witness, you must have specialist knowledge about the case.
You will need to show that you:
- know about the tribunal’s process and your role in it
- know about the SEND code of practice
- understand the issues in the case
- follow all relevant professional codes of conduct and best practice
- have up-to-date knowledge in your particular area of expertise
You do not have to be medically or scientifically qualified.
Being asked to be an expert witness
You will usually get a letter (for example from a legal representative) asking you be an expert witness. The letter should:
- explain why the party is seeking your expert opinion, and the wider context of the case (including any ethnic, cultural, religious or linguistic issues)
- define the specific questions you’re required to answer – these should be clear, focused and direct questions within your area of expertise
- list any documentation provided
- identify the relevant professional and non-professional people involved with the appeal or claim
- identify any other expert instructed
- tell you of your right to talk to other professionals, provided you make an accurate record of the discussion
Expert witnesses: gathering and presenting evidence
As an expert witness, you’ll be expected to:
- gather information
- make conclusions based on the information you gather
- present your evidence to the tribunal
The tribunal will expect you to:
- use ethical, sound, evidence-based standards and principles
- give clear and unambiguous instructions
- use precise, factual and objective information you can verify
- identify clearly what is and is not within your own knowledge
- accurately identify the needs that are in the child’s interests – not influenced by a party’s wishes, time constraints or lack of resources
- consider any previous or planned assessment relevant to your area of knowledge and practice to prevent the possibility of invalidating test scores
- give advice that is justifiable and supported by evidence, and is based on the child’s needs
- consider any facts that may affect the advice you give
- be specific about any recommendations about provision, unless there are clearly stated reasons for not doing so
- identify any hypotheses (as opposed to facts or opinions)
You should avoid expressing opinions on matters beyond your expertise.
Expert witnesses: sharing evidence
- share information and evidence with the tribunal as soon as it’s available
- identify any need for further expert evidence as quickly as possible
If you don’t do something the tribunal asks you to do, the tribunal could dismiss (‘strike out’) the case, or give less importance to the evidence you provide.
Expert witnesses: writing reports
If you submit a report as evidence to the tribunal, your report should:
- meet the standards of your professional code of conduct
- include your qualifications and experience
- say why you’ve written it
- explain any written or oral instructions you’ve received from the tribunal
- explain all the facts supplied that are relevant to the conclusions and opinions expressed
- give details of any documents, literature or other research material you’ve used
- describe your process of assessment and differential diagnosis – you should highlight any factual assumptions, deductions from those assumptions, and any unusual, contradictory or inconsistent features of the case
- say if and when you consulted other experts, what information you shared and how this informed your views
- include all relevant information, whether this supports one party’s case or not (this includes confidence in quoted test scores)
- identify, narrow and agree any issues where possible
- make it clear if there’s not enough information to reach a conclusion on a particular issue or point
- identify any relevant facts that do not need an expert explanation to understand or interpret
- identify any relevant facts that do need an expert explanation to understand or interpret (for example properly conducted examinations or appropriate tests)
- explain relevant technical subjects, or the meaning and application of technical terms
- say whether your opinion is provisional or qualified, and if so why
- identify what further information you need to give an opinion without qualification
- summarise your opinions, giving sound reasons
- explain any delay between your assessment and finalising the report
- give a clear summary of your recommendations
- be clearly dated and signed by you
Your report should also contain the following statements:
I understand that my overriding duty is to assist the tribunal in matters within my expertise, and that this duty overrides any obligation to those instructing me or their clients. I confirm I have complied with that duty and will continue to do so.
I confirm that I have made clear which facts and matters referred to in this report are within my own knowledge and which are not. Those that are within my own knowledge I confirm to be true. The opinions I have expressed represent my true and complete opinions on the matters to which they refer.
Find out more about the SEND Tribunal
More about the First-tier Tribunal (Special Educational Needs and Disability).