Guidance in relation to what is expected of expert witnesses can be found on the Gov.Uk website. This page includes information from the withdrawn SEND9, SEND10 and SEND16 guides.
In relation to evidence given by expert witnesses the previous guidance (SEND10) stated that:
- Opinion evidence will be accorded little weight unless provided by a witness who has expertise in the relevant area.
- Experts are witnesses with particular qualifications, knowledge and/or skills, which enable them to give an opinion within their area of expertise. They do not need to be medically or scientifically qualified but must have specialist knowledge acquired by education or experience. They should avoid expressing opinions on matters beyond their expertise.
- All witnesses should assist the tribunal in accordance with the overriding objective of enabling the tribunal to deal with appeals justly and fairly.
The updated guidance states a witness at a Special Educational Needs and Disability (SEND) Tribunal, 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’)
Who can be an expert witness?
To be an expert witness, the person must have specialist knowledge about the case.
They will need to show that they:
- 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
- do not have to be medically or scientifically qualified.
Instructions to an expert witness should:
- explain why the party is seeking their expert opinion, and the wider context of the case (including any ethnic, cultural, religious or linguistic issues)
- define the specific questions they are required to answer – these should be clear, focused and direct questions within the expert’s 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 the expert of their right to talk to other professionals, provided that the expert makes an accurate record of the discussion
An expert witness is expected to:
- gather information
- make conclusions based on the information you gather
- present your evidence to the tribunal
The tribunal will expect an expert witness to:
- use ethical, sound, evidence-based standards and principles
- give clear and unambiguous instructions
- use precise, factual and objective information that can be verified
- identify clearly what is and is not within their 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 the expert’s 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 the expert gives
- 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)
- The expert should avoid expressing opinions on matters beyond your expertise.
If an expert witness provides a written report to the Tribunal (this is not the same as an Advice provided to the Local Authority) they must:
- meet the standards of the expert’s professional code of conduct
- include the expert’s qualifications and experience
- say why the expert has written it
- explain any written or oral instructions the expert has 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 the expert has used
- describe the process of assessment and differential diagnosis – the expert should highlight any factual assumptions, deductions from those assumptions, and any unusual, contradictory or inconsistent features of the case
- say if and when the expert consulted other experts, what information the other expert has shared and how this informed the expert’s 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 the opinion is provisional or qualified, and if so why
- identify what further information is needed to give an opinion without qualification
- summarise the opinions, giving sound reasons
- explain any delay between your assessment and finalising the report
- give a clear summary of the recommendations
- be clearly dated and signed by the expert
The 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.
There are many kinds of experts, some are:
- Educational psychologist
- Speech and language therapist
- Occupational therapist
- Behavioural optometrist
In order to challenge evidence that is relied on by the Local Authority it will be necessary to instruct an independent expert with relevant expertise. Generally speaking, an expert witness will be required to attend an appeal hearing if areas of dispute remain.
A common issue that we have seen is where the Local Authority SALT (speech and language therapist) states indirect SLT (speech language therapy) is sufficient but the independent evidence is that direct SLT is required or direct unless identified staff have relevant training/experience. The SALT would need to attend the Tribunal hearing.
If you are seeking help for your child or young person and require expert evidence input please contact us for a no obligation discussion.