By Samantha Hale, Solicitor at HCB @hale_samantha
The number of EHCP related appeals registered in the First-tier Tribunal (Special Educational Needs and Disability) (the ‘Tribunal’) are on the rise, as is the number of appeals that need to be determined by the Tribunal at a Hearing. The thought of having to attend a Tribunal Hearing can be quite daunting, so to help you prepare, I have set out some advice what to expect.
If your appeal is against a refusal to assess your Hearing will take place on the papers. Therefore the advice in this article is not applicable to you unless you have requested an attended Hearing and the Tribunal has agreed to this.
Prior to the Hearing date
You will be notified of the Hearing date in the Case Management Directions that you receive when your appeal is registered.
- A couple of weeks prior to the Hearing date you will receive a Notice of Hearing this will confirm the names of any representatives and witnesses attending the Hearing. You will need to check that these details are correct.
- The Notice of Hearing will also confirm the location for the Hearing. However, what is most likely is it will include the details to access the Hearing virtually as most Hearings now are conducted in that way.
30 minutes prior to the hearing start time
If you have been asked to attend a specific location for the Hearing you should arrive that 30 minutes before the start time. For virtual Hearings you will be asked to connect to the Virtual Hearing at this time you test your ability access the Hearing in that way.
You should be aware everyone who is due to attend the Hearing will also be doing this test at the same time. Therefore you may be kept on hold whilst the Tribunal Clerk speaks to other people to check their connection is okay. Keep holding on and they will get to you.
Who will be at the Hearing?
- Present at the Hearing should be all the people included in yours and the Local Authority’s Attendance Forms.
- Also present will be a Tribunal Judge and either one or two Specialist Panel Members who will determine your case with the Tribunal Judge.
Occasionally, there may be an observer at the Hearing that they are only allowed to attend if everyone there consents. Observers are not allowed to participate in the Hearing in any way. This means they will not help make the decision and they will also not give evidence.
What happens at the Hearing?
When the Hearing starts the Judge and the Panel Member(s) will introduce themselves and they will also check who else is present.
In virtual Hearings they will keep an eye on who is present throughout so that if anybody loses their connection they will pause the Hearing until a person is able to reconnect.
If there are any applications for evidence to be submitted late or for the Hearing to be postponed they are normally considered first by the Judge and Panel Members.
What happens next can vary between Hearings and Judges. However, the Judge will explain how they want to go through the issues in dispute.
- They also tend to ask the parent(s) to say a little something about their child and will ask to see a photo of them.
If you are appealing against the contents of the EHCP or refusal to amend, then the Judge is likely to start by going through Sections B and F of the Working Document.
Sometimes they will do this by looking at each amendment in turn asking each party for their evidence as to why amendments should be made or opposed. Alternatively they will sometimes group amendments together into ‘issues’ to be dealt with more generally. They will also hearing evidence from any experts as they go through this.
In cases where placement is in dispute they will move onto Section I, once discussions about Sections B and F have concluded. They will then hear evidence from the schools in question.
In appeals where health and/or social care is included they will then go through the amendments in the Working Document related to these sections and hear evidence from any experts present on them.
- In appeals against a refusal to issue an EHCP, the Judge is likely to go straight into hearing evidence from the witnesses as to why an EHCP is or is not needed.
How is witness evidence given?
- When the Judge is ready to hear evidence from a particular witness they will sometimes ask the person who has called them as a witness to ask the witness questions.
- The other party will then be given an opportunity to also ask the witness questions and the Judge and Panel Members will also asked witnesses questions.
What happens after the witness evidence has been heard?
Once the Judge has gone through the issues in dispute, they will ask each party to make a closing statement.
The Local Authority will be asked to give their closing statement first.
Then the parent will be asked to give their closing statement.
In cases where the parent has a representative at the Hearing, the representative would normally do this.
- The closing statements should not be too lengthy and should summarise your case and reference supporting evidence from the bundle/ oral witness evidence.
No new evidence should be introduced at this stage.
Once the closing statements have been given the Judge will check with you that you are happy that you had chance to say everything you wanted to. Although this is not an opportunity to repeat detailed arguments about the appeal. The Judge will then make a few procedural comments and then close the Hearing.
You will not be told the decision on the day of the Hearing.
The decision will be communicated to you and the Local Authority at the same time in writing after the Hearing date and could take up to 2 to 3 weeks.
The decision will explain the reasoning for the decision(s) made. It will include a document confirming what action the Local Authority needs to take and by when, depending on the decision.
- It will also include information on requesting a review or an appeal of the decision.
Other relevant information
Make sure you have a copy of the Tribunal Bundle to hand. You will need this to follow what is being said and to refer to, as the Judge will normally ask parties to refer to evidence in the Bundle.
I'm quite often asked what someone should wear to a Hearing. It does not need to be a suit. Just I something that is smart and you feel comfortable in. To help keep you comfortable I recommend making sure you have water to hand throughout the Hearing.
The Judge will ensure that everyone has comfort breaks and lunch break (full day Hearings only) during the course of the Hearing. You can also request additional comfort breaks.
With virtual Hearings the Judge and Panel Members are aware that people will be accessing them from their workplace/ home. They are therefore understanding of background noise when it cannot be avoided. However, if possible you should ensure that you connect to the Hearing in a quiet place.
Sometimes the start time for a Hearing will be delayed, if you and the Local Authority or having meaningful discussions leading to some or all aspects of the appeal being resolved. However they will be mindful of ensuring they have enough time to hear the appeal if it isn't all resolved, and therefore will only give a short delay to the start time.
If you need adjustments made to access the Hearing you should request this in advance in the Attendance Form.
This could include for example the Tribunal providing an interpreter, or those who rely on lip reading, for Hearing to take place in person instead of virtually.