By Emma Swann, partner and education law specialist at Forbes Solicitors
Special Educational Needs and Disabilities (SEND) Tribunals are a hot topic for schools and local authorities, with rules being enforced for presenting evidence at hearings. Emma Swann, a partner specialising in education law at Forbes Solicitors, provides a run-down of what schools need to know to avoid potential penalties.
Spotlight on SEND support
There’s a lot of interest and anticipation surrounding the provision of SEND education. Government is due to publish a whitepaper in the Autumn, outlining SEND reforms and there are calls for this to include the abolishment of SEND Tribunals.
Reports suggest there was a 55% rise in SEND Tribunal appeals during 2023-2024 (SENDIST 2024 statistics), while The Law Society Gazette reports 96% of such cases are lost by local authorities. It’s estimated this is costing tens and hundreds of millions of pounds – funds which could be redirected to delivering SEND support – and that interventions are required to address an unsustainable issue.
We’ll have to wait for publication of the government’s whitepaper to see if SEND Tribunals are abolished, but this seems unlikely. During the summer, The Department for Education (DfE) indicated that forthcoming reforms do not include any such plans. Where we do have more certainty, and a point that schools should take heed of, is guidance for improving the presentation of evidence at SEND Tribunal hearings.
Focus on evidence bundles
A new Practice Direction (No. 1 of 2025) has been issued by the Courts and Tribunals Judiciary for evidence bundles at SEND Tribunal hearings. This was reportedly introduced because of an increase in irrelevant information being submitted. Judge Meleri Tudur referenced that page limits have existed for a number of years, which determine the total number of pages that can be put forward. These limits will now be enforceable, and non-compliance could see schools face penalties.
What are evidence bundles?
An evidence bundle is a collation of documents which comprise the written evidence to be considered by the SEND Tribunal. Bundles are prepared by a school and / or local authority (with support from their legal team) and must be submitted by the relevant deadlines in each case. Any information that is not included in the bundle, and which does not meet deadlines, will not be considered by the Tribunal.
A best-practice bundle should clearly and easily allow the Tribunal and all associated parties to navigate through the history of the claim. This may include documents relating to the position and claims of the relevant parties involved, Tribunal orders, any requests made by the different parties and attendance forms. Bundles should be separated into clearly defined and labelled sections, with an index hyperlinking to each relevant document.
It’s also generally considered good practice for evidence bundles to be succinct. Page limits should not be viewed as targets or a benchmark. The new Practice Direction has been introduced to encourage greater consideration about what information is included, to make bundles more effective and user-friendly for all parties.
What do schools need to know about the Practice Direction?
Tribunal Practice Directions are typically issued to provide formal instruction and guidance. In this instance, this refers to detailed rules about how schools present evidence to a SEND Tribunal.
The rules stipulate that the core part of an evidence bundle must not exceed 100 pages, while supplementary evidence must be limited to 200 pages. It’s reported that bundles have contained blank forms or pages and duplicates of the same documents. The Practice Direction has been issued to remind schools that this isn’t allowed.
Bundles must, where possible, enable ‘optical character recognition’, which makes pictures word-searchable. There are also specific rules for fonts, the format of a bundle and orientation – evidence must be arranged, so that documents can be viewed without having to be rotated. There are requirements to organise bundles in a chronological order, and schools must ensure an accurate, hyperlinked index reflects this and supports straightforward, easy navigation of the information.
As well as reiterating what should be included in an evidence bundle, the Practice Direction also outlines what should not be included. For example, any correspondence and email threads between associated parties are prohibited, unless this information is relevant to an Education Health and Care Plan (EHCP). Any professional reports and school reports more than three years old and draft versions of an EHCPs must also be omitted from evidence bundles.
What are the penalties for non-compliant evidence bundles?
The Practice Direction references that non-compliant bundles may be rejected by a Tribunal, unless there is an accompanying note explaining why non-compliance is necessary. Non-compliance may also cause a Tribunal to vacate a hearing date at short notice, strike out the case in its entirety or prevent a party from participating further. In certain limited circumstances, a costs order may also be made against a party presenting an evidence bundle that does not meet SEND Tribunal rules.
Any failure to meet Tribunal deadlines to produce the evidence bundle could mean that a school or local authority is automatically barred from further participation in the proceedings and may lead to the school or local authority’s response to the appeal being
struck out. The Tribunal may choose to reinstate the proceedings, but this would be at the discretion of a Judge.
The issuing of the Practice Direction implies that the Courts and Tribunals Judiciary service will place SEND Tribunal evidence packages under greater scrutiny. Schools are best placed allowing plenty of time to compile evidence bundles, using Tribunal rules as a check list for preparing evidence and working with specialist advisors to ensure information presented at hearings is robust, relevant and compliant.
For further information about preparing for SEND Tribunals, contact Emma Swann at Forbes Solicitors.
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