Preparing and attending a SENDIST Tribunal

8th November 2022

– This paper is in two parts.

  • Preparing for SEND – which looks at the likely issues between lodging the appeal and getting to the Tribunal
  • Attending the Tribunal – which looks at what you can expect to happen from Final Evidence to preparing for the hearing, during the hearing and after.

These are general guides and do not constitute formal legal advice and should be adapted to the specific issues in your case.

All of us at Education Advocacy recognise how difficult this process can be for an unrepresented parent.

There are many groups on Facebook where individual parents celebrate their success. We join with them in that success. But there are other parents who are not successful – normally because they don’t have the evidence that supports their case, or they don’t have the necessary skills to hack their way through the system.

So, if you have been successful be humble in your undoubted success so other parents do not feel that they have failed again.

All parents need to remember you are doing this on top of your day job and the spare time job of running a household and managing a family and a child with SEN, the school/LA/social care team all of whom need you immediately.

If it all gets too much, then ring us and we will take over the case and support you, hopefully, to get the right result for your child.

Register for a FREE 30 Minute, No obligation consultation

Preparing for SEN (Special Educational Needs) Tribunal

This article outlines the typical issues that may occur during case preparation for a SENDIST hearing.

The second article – Attending the Tribunal takes you through the rest of the process.

Starting Point

You have worked your way through the SEN process to a point whereby you have a right of appeal letter from the Local Authority (LA) and have launched an appeal to the Tribunal by filling in the SEND 35A for a Refusal to Assess or SEND 35 Tribunal appeal form for a BFI /Cease to Maintain and sent any accompanying evidence to the Tribunal. For the purposes of this article, we have assumed that you are using the SEND 35 form.

The Tribunal have registered the appeal by giving it an appeal number and have provided a set of dates for the appeal timelines. The last date is the one that strikes terror – the day of the hearing!

Registration

After you have submitted the SEND 35 the Tribunal will take up to 20 days to register an appeal. Following the receipt of the registration documentation enter the action dates into your diary and then count back 14 and 7 days and put in a 14/ 7-day marker in the diary so that the action date does not take you by surprise.

At the 7 days point ring the LA officer and say “Oh, I see we have to do “x” by “y” date. Are you going to be able to do that and is there anything that I can do to assist?”

This does four things

  1. It shows that you are in control of the process 
  2. It reduces the opportunity for “confusion”.
  3. Underlines that you are taking notes and holding the LA accountable for their action points. 
  4. Makes clear that you are not going to be messed about.

Experts

You will need to objectively look at your evidence and decide whether the evidence supplied by the LA gives a true reflection of your child’s needs.

The Childrens and Family Act 2014 (CFA) and the SEN Code of Practice (CoP) require LAs to produce EHCPs that lists in full all of a child’s SEN and identifies provision that is specific detailed and quantified.

By specific we mean:
Jonny will receive 25 hrs pw of 1:1 support from a TA who has received 2 days of training in xxx and xxx. Any new starter working with Jonny will receive the same training.”

If it does not, then you will need to consider instructing your own experts.

Independent Experts

If you are trying to get independent experts to assess your child or the placements, then you need to ensure that these are booked in and confirmed as soon as possible. Send a copy of the file to the expert so they have all the necessary information. Confirm the dates when they will assess. Make sure that the experts/ schools have an up-to-date copy of the files including your evidence as and when it becomes available. Confirm in writing when the hearing is and that you will expect them to attend unless you say otherwise. Get them to confirm that.

Here is a detailed article on instructing experts.

NHS (National Health Service) Experts

If you are using NHS experts to substantiate your position and they have not provided a report, or you consider the report is not of the required standard you can use the “Request for Changes” (RFC) option within the Tribunal procedures to ask for further advice and specification from the NHS via a Tribunal Order.

You should draft your request using the Tribunal form and send it to the named Tribunal officer from the authority asking for their comment. If they have not responded within five days, then send the request email and the RFC to the Tribunal.

Tribunal Deadlines

Tribunal deadlines exist to ensure that both sides adhere to a set of processes which will allow the Tribunal to bring the case to a hearing in a timely and efficient fashion. If you cannot meet a deadline for a particular reason, then you should flag it up to the LA and the Tribunal as soon as possible.

It is not generally helpful to try and play games with either the authority or the Tribunal. The Tribunal is very used to people trying to play games with its processes and it does not do you any favours. It certainly doesn’t create the right atmosphere when you appear before the Tribunal.

Tribunal Forms

The Tribunal will require you to complete and return the SEND 45 Case Review Form. This form updates the Tribunal as to the current issues that the Tribunal will be expected to give judgement on and as such it aids all parties in focusing on what the key issues are.

  • What is the current WD (Working Document) version
  • The Headline issues – what issues do you want to have the Tribunal decide on?
  • The Educational Placement – where do you want the child to go – does the school agree? Do you have an offer of place?
  • Do you think the appeal is ready for hearing
  • Do you need a new timetable
  • Who your representative is – if you have one and will you have a supporter with you?
  • Who are your witnesses
  • Any special requirements? Are you disabled – do you need car parking if available? Do you need signers or interpreters?
  • What sort of hearing do you want
  • a paper hearing – where the Tribunal decide the appeal based on the bundle – i.e., no one is present to give evidence
  • an in-person hearing – an oral hearing (which might be in person or via video)

What the Tribunal is trying to do is to know where you are in the process and whether the appeal is ready for hearing. If not, what needs to happen to make it ready for hearing.

Given the pressure on the Tribunal and users, this is common courtesy to all users to keep everyone up to date and vacate a hearing date early if it if clear the evidence is not going to be available for the hearing.

Video/digital evidence

Video evidence may well be helpful for showing a picture of the child at home or school. It should be quite tightly edited to identify the issues that need to be bought out.

Parents, entirely understandably, want to show the love of their life in the best possible light. Unfortunately, the Tribunal is looking at what the child cannot do rather than what they can do and to that effect we need to see the difficulty they are having in dealing with day-to-day issues. Try and aim for not more than 10 minutes in total.

2-hour videos with accompanying specially composed songs and poetry are not what is needed. We have had it!

Telephone Case Management Hearing (TCMH)

A TCMH is a formal meeting whereby a Judge reviews the case, either as result of a request from either the LA or you or the Tribunal has decided of its own volition that a formal review is necessary. The online meeting is commissioned from an Order issued by the Tribunal.
The hearing is conducted via a telephone conference call and the Tribunal will provide you with the dial in details.

The calls are listed for not more than 45 minutes

We will normally do a short submission to the Tribunal outlining our position now so that the Judge is clear what we want from the hearing. This should not be a repeat of previous submissions. It should not be a “War and Peace” document.

Following the hearing the Judge will issue an Order which may direct individuals to do certain things by set times. The Order will be legally binding on the parties.

You should not assume that the Judge doing the TCMH will be the same Judge running your hearing.

Final evidence

As part of your Tribunal management plan, you should ensure that all of the expert reports you may have commissioned have been reviewed and issued as final before the Final Evidence date. Re-confirm with the expert that they are expected to attend the hearing. Tell them in writing if you are going to release them.

You must send the Tribunal and the LA all your evidence by the final evidence deadline at the latest. PDF is best. Hard copy if necessary. If you are sending it by hard copy either take the documentation to the LA and get someone to sign for it or send it via recorded delivery with a signature – to prove that it got to the LA (stops arguments later!)

There is a standard Case Direction, (CD), which is part of the Appeal registration documentation which requires evidence to be submitted as it is obtained (CD para 2). If you know that you will be awaiting a report after the final evidence deadline, then you need to tell the Tribunal and the other side and explain why the report will be late. So long as everybody knows why a report will be late and they understand the reasons, it is normally accepted. No one likes surprises!

There is no need to send copies of clinic notification correspondence. Everything in your bundle should clearly point towards the issues that you want to raise as clearly as possible. Obscure email chains from three years ago probably not help your case. We are always bemused why the annual review information appears to be missing from correspondence chains. Similarly, exclusion information may well form a very helpful part of your evidence.

Submissions – A submission is your explanation of what has taken place in the case linked to your evidence. It is a summary document. The Tribunal will have read the documents and you don’t need to repeat verbatim extracts. It may be helpful depending on the nature of the case to explain what the new evidence has bought to your case. It is not a rewrite of your previous submissions/correspondence.

It does not need a rehash of case law which you can be confident the Tribunal will know.

Responding to LA Caselaw submissions. – some LAs respond to a parental appeal by submitting lengthy template case law extracts. Some may suggest that these extracts are designed to install fear into the hearts of the parents and get them to withdraw the appeal due to the overwhelming caselaw! In fact, the case law is overwhelmingly in favour of parents. In any case the Judge is there to deal with case law, and you can be clear that they will do so.

Send your final evidence to the Tribunal and the local authority quoting the appeal number and the name of the child. Do not send it with passwords or via a secure server as the Tribunal will not accept it.

Evidence bundles

The local authority will compile the Tribunal bundle and serve an electronic copy on you. CD para 4 require the LA to supply a copy of the bundle in paper form if the parents want it. Ask in good time.

Ensure that you check the bundle to ensure that all your evidence, on a page-by-page basis, is there and that it is readable. Some authorities consistently add parental evidence to the bundle, which was perfectly clear and readable when it was sent to them but has somehow electronically dematerialised into unreadable mush by the time it ends up in the bundle.

If the Tribunal cannot read the evidence, then there is no evidence!

In the event of any unclear or missing pages go back to the LA and tell them that you require the bundle to be reissued with your missing evidence or unclear evidence added to it. It is the LAs (Local Authority) responsibility to deal with this not yours. Send the correspondence by email so there is a record.

Make sure the bundle is numbered as it is that page numbering that the Tribunal will refer to on the day of the hearing. If you do have to ask for an amended bundle, make sure that it is clear that it is an amended bundle so that on the day of the hearing everyone is working from the same papers.

If the LA refuse to reissue the bundle send a clean copy of the evidence to the Tribunal asking that it be incorporated in the hearing bundle together with the email correspondence from the LA explaining why they have refused to correct the bundle.

Late Evidence Bundle

It may be that if there has been a lot of evidence submitted after the final evidence bundle, one hopes by consent and not by the authority dumping on you and the Tribunal a mass of information which you had not previously had sight of or vice versa.  It would make sense and is entirely appropriate for the parties to agree a late evidence bundle which enables the Tribunal to have an up-to-date information package. That bundle page numbering should follow consecutively on from the last page number in the final evidence bundle.

The more time that is spent on the day of the hearing arguing about bundles is less time spent on the case.

Working Documents

The objective of the working document (WD) is to identify and then reduce the number of outstanding issues between the parties such that the Tribunal can focus on a narrow range of points leading ultimately to a clear and speedy decision.

It is not possible to give fixed rules in that a working document is a summary of the child’s special educational needs and the provision which is necessary to meet those needs which is specific detailed and quantified.

Many local authorities insisting giving template responses which highlight universal provision. What is needed within the EHCP (Education, Health & Care Plan) is provision which “is additional to or different from” the normal.

One would hope that all children access “Quality First Teaching”, it does not need to be stated.
Your independent expert should be prepared to comment on those areas of the working document within their area of expertise and explain why their wording should be preferred over the local authority wording.

There are broadly two ways of dealing with the wording. You can either add or delete words or phrases, or strikethrough the local authority wording en-masse and submit your expert’s wording.

Even your own experts may be a little flowery with their language and so work with them to cut that down to the essential elements. You will receive the grateful thanks of a hard-pressed Tribunal.

You will no doubt be told that your expert reports will be annexed to the EHCP and therefore the detail will be seen within that report. That is of course true but assumes that a TA (Teaching Assistant) or class teacher will read that report, particularly at secondary level. The reality is it is unlikely that individual class teachers at secondary level will do so because they have 200 – 300 SEN children in the school to teach as well as yours. The school will say “well if not if it’s not in the EHCP and we don’t have to do it.”

Make sure that each version of the working document is numbered 1 to 20 together with a date and who it is from and has page numbers. That way it is easier to make sure that you are all on the same version when you get to the Tribunal.

Make sure that the final version that is sent to the Tribunal immediately before the hearing is the right version because the first thing that the Tribunal ask is which version the working document are they being asked to work from. Make sure you and the authority have agreed which is the latest version.

Be very careful to ensure that the authority does not slip in version 27(a) without you realising that version has mysteriously lost a number of your objections.

Final final final evidence

Speak with the local authority Tribunal officer the day before the Tribunal – not the case handler and ensure that they are not going to miraculously serve some “on the day evidence” on you and the Tribunal. There are some firms of solicitors that work for local authorities who are notorious for this.

If there is evidence, then agree it first.

Now all you need to do is to turn up to the Tribunal!

Now, let us go onto part 2 – Attending the Tribunal.

You may think that some of the points made within this document are simplistic and/or far-fetched. We have encountered them all at some time or another.

You have navigated the Tribunal process and managed any issues raised by the local authority. You have an accurate and complete bundle. You have a dated working document with page numbers, which has correctly identified the issues in dispute which you are happy with, and the Tribunal has a copy.

You are ready to hit the Tribunal and dazzle!

Tribunal myths

Attending a Tribunal is not anything like an episode of Cavanagh QC/Silk or the Good Wife.

SENDIST is an expert inquisitorial Tribunal. That means that it is the role of the Tribunal to investigate the evidence and, through their review of the written evidence and questioning, identify the issues and the remedies to those issues. The Working Document is a key part of that process.

Tribunal panels form for a particular hearing from a pool of members and a separate pool of Judges.

The Tribunal will be led by a legally qualified Judge and one or two “lay members”. The lay members are individuals with significant expertise of special educational needs, social care or health. Depending on the case that is being heard the mix of members may be different.

Depending on the experience of the Judge and members and the type of case a Tribunal panel may consist of one or two lay members.

The lay members are the experts in the education process and normally lead questioning on any educational health or social care issues. The Judge provides the direction and writes the decision which issued approx. 10 days after the hearing, not on the day, and is responsible for ensuring that the legal processes are followed.

Some Judges/members have been working for the Tribunal for some 20+ years and have huge experience.

Most if not all members will have worked for a local authority/CCG at some stage in their careers. That does not mean that they are bound by their experience, and they do not bring any prejudice to the Tribunal.

We will not know who is on the panel until the day of the hearing.

Do not be surprised if most of the questioning is directed towards the authority. That means that the Tribunal is satisfied and understands your case and is in fact testing the authority’s position.

Mindset

The Tribunal will understand that you are apprehensive/scared/tongue-tied/incoherent with fear.

The Tribunal deliberately set out to run the Tribunal as informally as possible. Most Judges would say they seek to conduct the hearing as a formal highly structured business meeting under the Judge’s management.

It is not considered to be a helpful to pick a fight with a Judge or a witness / representative unless it is to correct a matter of fact. Even then tread carefully and respectfully.

The Tribunal is not interested, as it does not have the powers, to investigate; comment on and assign blame on historic matters within the case. Don’t go there, save to address a point which is in contention, you are wasting time.

Parents frequently have an encyclopaedic knowledge of the case and can quote who did what and where they sat in long distant meetings but that may not be relevant to what is needed before the Tribunal.

The Tribunal is interested on what the position is now between the parties, what is agreed, what is not agreed, with reasons and pointers to the evidence in the bundle. They will use the Working Document, evidence and questioning to assist them in this. Make sure the WD before the Tribunal is accurate.

You may be confident that the Tribunal will have read the bundle. Normally the Tribunal will have read the bundle once, made notes and then gone back and clarified their thoughts in relation to the points they may wish to raise during the hearing. The panel normally meets between 9-10am on the day of the hearing to identify the points they consider to be pertinent and will raise during the hearing.

So, on average the Tribunal as a body will have read the evidence 4 to 6 times refined that bundle to the key issues and be ready to hit the ground running at the start of the Tribunal.

Hearing preparation

Review the bundle and check again that all your evidence is in the bundle. This should NOT include evidence from either party submitted after the deadline, unless an Order from SENDIST has been issued explicitly allowing this. This should be in a separate bundle identified as late evidence.

The print should be clear and readable and that the bundle is paginated (numbered). Some bundles will include documents that have been in previous bundles and therefore there might be a confusing set of bundle numbers. Make sure you know where the local authority has put the numbers in this bundle.

If the bundle is missing anything, then it is the responsibility of the LA to sort it out. Make sure you have told them and have an email chain for that.

If you have late evidence to submit, make sure that the LA have a copy of it and a ‘Request for Change’ form served on Tribunal. You can explain why it was late and that it has been served on the Tribunal and that they have it on the day. DO NOT ASSUME THAT THEY WILL HAVE IT.

You may need to send a copy to the Judge at the video hearing room or if an in person hearing you will ned to take with you 5 copies of the evidence to give to the Judge. Ask how the Judge wants to proceed with that evidence.

The next bit is a bit tricky depending on how your mind works.

Paper bundles

You are entitled to a paper copy of the bundle if you wish – see standard Case Directions (CD).  It is the responsibility of the LA to provide you with that bundle in good time.  The registration letter with the CD will tell you when you get the bundle.  Make sure you tell the LA that you want a paper copy in writing.  Email the LA/ shout if you do not receive one and tell the Tribunal.

If you have a photographic memory working with a bundle is child’s play.

If you are a mere mortal, you will need to work out some way of identifying the key issues on the working document that you will need to identify and take the Tribunal to within the bundle.  

This is important as you will be stressed, and apprehensive on the day.  If you have control of the bundle by knowing what is in there and how to get to it, you won’t feel the need to memorise it which will lead to less stress for you.

There is no right or wrong way of setting up a bundle, only an effective way that works for you. If you are doing this for the first time, then this how we do it. 

You might be happy to use the bundle index as your starting point to find a page.  If you do, then detach/ print this so you can have it in front of you.

Alternatively, you might want to use different coloured post-it notes as the page marker.

Make sure you can read the post-it note.  Trying to read your writing which has converted to Egyptian hieroglyphs is not helpful when you are under pressure.

We would suggest that you use coloured post it notes at the top of the bundle for the various types of professional reports e.g., EP reports would be in red, speech and language reports in blue, OT reports in green and medical reports in yellow.  Then down the side of the bundle we would tab pages which had relevance to the correspondence within the bundle.  The appeal rights letter, the EHCP, any correspondence from the authority.

This meant that we did not need to try and memorise the bundle.  The tabs did the work for us.

If there are any key elements that we wanted to draw attention to during the hearing, we would highlight those sections and make a notation at the side.

Key points are noted on a separate sheet including any questions you want to put to the LA/ School/ LA experts.

Great news you’ve now tamed the bundle!

Electronic bundle

The local authority should have sent you the electronic bundle about 10 days before the final hearing. If you have not received it at that time ring up the authority and robustly and repeatedly complain until you get it. Notify the Tribunal that there is a delay.

Depending on your PDF reader will depend on whether you can have bookmarks or make notes on the document.

If you cannot make notes, then consider using a trial version of a full PDF package. Make sure the trial period covers the hearing date plus and that you store a copy of the bundle on your pc.

Make sure that as soon as you start putting notes into a file you save it under a new name.

One of the attractions of an electronic bundle is that you should be able to have a search function so if you’re looking for a particular word or phrasing you can search for it within the bundle and get some brownie points from the Judge when you miraculously find the point that they have been looking for. Make sure that you make the bundle searchable. This is normally a separate function in the PDF software.

Applying the Working Document to the bundle

Go through the latest working document and identify from the bundle the page numbers on which the disputed wording occurs. Use highlighting to identify the exact wording in the bundle.

It may be that some of the proposed wording is a mixture between an annual review recommendation, your professional report and an LA report. You should identify which parts come from where and note it in the WD.

Be careful if you have carefully prepared your annotated working document and suddenly get an amended WD through from the authority. We have had a number of occasions when sections of print have disappeared or have changed.

We will always run a comparison between the two versions using the “Compare” function in word.

If you do get a late version do not assume that your annotated points will be the same and sometimes the authority move sections around well. It’s almost as if they were trying to confuse you!

Types of hearing

There are three types of hearings:

Paper hearings

This is where you submit bundle to the Tribunal and waive the right to give an oral argument or have your witnesses examined on the day. The Tribunal has used paper hearings for Refusal to Assess hearings for many years and for that process it has been found to work very well. The Tribunal distribute the bundle to the listed panel and the hearing is held remotely normally within a two-week window and the decision issued. Since there are no witnesses, they are generally easier to list, and they can be slotted into a vacant judicial timetable quite easily. You may wish to consider applying for a paper hearing if the case is particularly time sensitive which should mean that it will be moved up the hearing timetable.

Things to consider for a paper hearing

Your case will stand and fall on the quality of the evidence you have given within the bundle and the clarity with which you have outlined the issues in the case. You therefore have to be clear that you have, so far as you can, dealt with all of the issues in the bundle.

Video hearings

Prior to COVID using video technology to conduct hearings within HMCTS was viewed with deep suspicion. At the start of COVID the Tribunal moved all hearings online and there was little disruption to the number of hearings. SENDIST was viewed as one of the leaders in the video application of hearings. Although video hearings are still being officially trialled it is considered highly unlikely that the Tribunal would move back to a position whereby all hearings are held in person. For the user video hearing works well if you have a solid internet connection and a couple of devices, one to read the PDF file on and one to run the court video platform on. Your witnesses will still be examined effectively, and you will be using a working document. To all intents and purposes, it is the same as an oral hearing save that there can sometimes be some IT issues which depending on whether or not it is your fault can be amusing or frustrating!

Things to consider for a video hearing

The hearing will generally be heard over the court video platform. This is not cutting-edge software. It can on occasions be a bit clunky. Make sure that you have a good Internet connection ideally going directly into your router. If you are using Wi-Fi, make sure that you are the only user on the network. Minecraft will have to wait for another day!

When you get the letter from the Tribunal giving the case hearing video room details go on to the link before the hearing and get to the setup screen and you can run a test on the video quality/ sound/ microphone just to make sure that everything is working properly. This will save you logging in on the day of the hearing and finding that all of your settings are wrong. Which will add to your stress at a time when you should be zen-like.

If you have had an adjourned hearing where a video hearing letter has been sent to you for the 1st hearing check with the Tribunal that they are not going to issue a different hearing venue for the 2nd hearing. It saves embarrassment at 10:10 when you’re the only person still in the hearing.

Make a note of the telephone number provided on the hearing notification letter. If your internet fails, you need this number and the password to gain access to the hearing as a fallback position. Sometimes when you initially log on to test your equipment, they change the emergency telephone number. Make sure you have the correct one before the hearing starts.

Make sure you are in a quiet room at home with a jug of water in front of you any medication that you may take and have comfortable chair to sit in. You will be sat in it all day and even the best upholstered kitchen chair can become a little uncomfortable.

If there are 2 of you then make sure that you are both within the field of view of the camera. Make sure the camera is not looking directly up your nostrils!

You will probably need two devices, one to have the electronic bundle on and a 2nd for the conduct of the video call. Depending on how you think, you may be happy with the PDF bundle, or you may need the printed copy from the LA.

If it is a BFI appeal the hearing will start at 10am and may well go on to 5 o’clock or shortly after, despite the Judges best efforts. Make sure that the Tribunal does not enjoy the benefit of your children bursting in on you complaining about what the teacher did to them that day in school. If it is a BF hearing or Refusal to Issue, it will likely run from 10AM until 1pm or an afternoon session starting at 2pm but may run later.

Oral-in-person hearings

this is way that the Tribunal has always conducted its work. The old and the bold will say that there are certain advantages to an in-person hearing but for parents, particularly in the south-east having to go into the Royal Courts of Justice for a hearing in a rather tired room, in a concrete box, being blasted by continual building noise or tropical temperatures, where you were on the eighth floor and the nearest toilets were on the ground floor travelling by a rather rickety and unconvincing lift may not be something which is much missed. However, depending on your particular circumstances you can still ask, and will always be able to ask, for an oral hearing before the panel. The decision will be down to the Tribunal so you should consider the grounds on which you are making the request.

Things to consider for an in-person/oral hearing

Make sure you know exactly where the hearing venue is.

How to get there at that time of day, where to park your car or the nearest public transport links, have the money to pay for the parking.

If you or your child (if attending) are physically disabled ring the nominated court beforehand and ask for a car parking space and make sure it noted on the specific space for this on the attendees/case review form. If there is such facility available within the court, court staff will normally bend over backwards to help you.

If you require special toileting facilities, then again tell the court staff beforehand. The contact details will be on the notice sent to you by the Tribunal. The majority of court buildings in the country are not wheelchair friendly and some require considerable ingenuity and determination to get around in a wheelchair. If possible, take your crutches with you.

The Tribunal is acutely aware of the issues of attending a Tribunal if disabled and will normally go the extra mile to support you. Tell Darlington if you need special dispensation on the day by the Tribunal. Tell the local court if you need parking etc.

If you require an interpreter or a signing interpreter, tell the Tribunal well beforehand so that they can make the necessary arrangements.

Make sure you have checked all of the documentation that you are going to take with you into your bag the night before. Double check it and then put it to one side. If it is not in the bundle, then there is little point in taking anything more with you.

If you are submitting late evidence, you will require to take with you 5 copies – 3 for the Tribunal one for the local authority and one for yourself. Photocopying facilities at courts are very limited and you should not rely on those copies being made available on the day.

Check on the hearing notice what time the court opens and make sure you are there in good time to allow you to get through security and make your way to the court.

Depending on the venue it may be appropriate to take lunch and a drink in with you. A Tribunal will normally have water available on the table. However, the plastic cups are extremely thin and generally very easy to break or knock over.

Court security may want to examine your bags etc and invite you to take a sip from any drink.

If you are using a laptop, make sure it is fully charged and bring an extension lead and charging pack with you just in case. You can guarantee that on the day of the hearing the laptop battery will go flat/combust. Have a Plan B, (iPad – borrow one from the kids!) loaded with the bundle fully charged.

The Court will require you to take all your equipment with you at breaks when you leave the hearing room. Do not overload yourself with things that you will not use to start with.

Some courts will have a café attached to them-which means you don’t have to go back out to an external café and then come back in through security again saving you time.

Many of these court café’s will allow you to buy your lunch 1st thing in the morning and they will hold it there for you until lunch. The attraction being that you have your lunch available to eat rather than having to choose from what’s left over – normally not much.

Take with you an A4 photograph of your child looking suitably angelic. If possible, also include a copy in the Tribunal bundle. Do not bring the photo in a glass frame as it may well be confiscated by security as being a risk to court staff.

In the hearing

This applies to both video hearing and an in-person hearing.

Dress – The Tribunal is a court of law, and you should dress accordingly. For men this would normally mean a suit with a tie, depending on the weather it may be possible to remove the jacket. For ladies wear something which is comfortable and smart. Do not try and cram into your Sunday best which may be a little tight as sitting in tight clothing in a hot room is not going to necessarily be very comfortable. Turning up in jeans and a T-shirt or pyjamas (from a LA officer) on a video call whilst not materially affecting your case does not set the right tone.

Toilet breaks – The Tribunal will try and break after 1½ hours or so for a mid-morning break, taking lunch around 1 o’clock normally for about three quarters of an hour to an hour depending on how the morning has gone. There would normally be a 2nd break in the afternoon with the expectation that the Tribunal would be finished before between 4 and 5 o’clock.
You will be nervous and apprehensive and may well be sipping drinks throughout the day. Our very strong advice is to make sure that you avail yourself of the toilet at every break so that you are comfortable for the next session. If you need a comfort break you should ask for one and the Tribunal will take the next available pause to allow the break to take place.

Water – Have a water carafe or similar to hand. Make sure that the glasses are away from the laptop!

Medication – if you are on medication make sure you have that available. If at an oral hearing, make sure that it is in a prescription bottle with your name on. Some court security teams take exception to having tablets in non-prescription bottles.

At the start of the hearing

The Judge will introduce himself and the panel members, confirm that no one is recording the hearing and explain the legal framework within which the Tribunal works.

The Judge will then go on to identify the issues the Tribunal have found that will need to be addressed through the working document process and ask for agreement that that is correct.

They will normally confirm which version the working document they are working to and how many pages there are in the bundle. Bundle size can vairy!

If there is late evidence i.e., evidence which has been submitted after the final evidence date, that will need to be identified and accepted as evidence together with an explanation as to why it was late and whether it was available before the final evidence date and why it was not submitted in time. We cannot guarantee that it will be accepted.

This is not the time to try and dump on the Tribunal 300 pages of additional evidence which may be helpful. It will severely displease the Judge and brings into doubt how you have prepared the case.

It is probably not helpful to turn up at the Tribunal with books of the child’s work et cetera as the Tribunal will not look at them.

All that you need before the Tribunal is the bundle, any late last-minute evidence and something to make notes on and the latest annotated WD.

If it is not in the bundle already then have a picture of the child available to show to the Tribunal so that they can see what he looks like.

The Hearing

The Judge is responsible for the conduct and management of the hearing, and you will have to be very much led by how that particular Judge wants to run the appeal. As has been said above, Judges try very hard to ensure that the parents in particular feel comfortable and included as a full participant before a Tribunal particularly when there are various professionals there who claim greater knowledge of the child than you.

Most Judges will want to hear from you the parents at the start of the hearing on your views on how the child is doing now. A typical question put to you by the Judge at this stage may be:

We have all of this information in the bundle, but what we’d like you to do is to tell us what Harry is like at home now. For example, what is he like getting up in the morning; do you have to keep repeating yourself; does he enjoy school; what does he say is good about school; what has he says bad; what’s he like at home; is there any difference between term time on holidays or at weekends.

This questioning does 2 things:

  1. it gets you comfortable with speaking before the Tribunal and will hopefully put you at ease talking about the subject that you know best.
  2. it presents a full picture of the child in a home setting which should mesh with what the professional experts are saying.

If you want to prepare some notes on this to refresh your memory, then that may be helpful but do not write a 200-page sermon which you want to read out. It is unlikely the Tribunal will let you have that amount of time.

The panel’s demeanour

Panels are normally non-demonstrative in their approach during the day so do not be surprised if they may seem slightly cold, they will however try very hard to get the best evidence from the parents as to what are s their views.
So, if a panel member does not crease up with laughter during one of your best jokes don’t take it personally.

Evidence

There are two forms of evidence before the Tribunal, written evidence – reports and documentary papers in the bundle and verbal evidence given by parents and experts but not LA representatives or parental representatives/ solicitors or barristers the make submissions.

Do not be surprised if the LA seeks to question your/experts views very vigorously. They will be trying to knock out your evidence.

We seek to be fair and courteous with the LA but firm.

Many parents take a view that they want to be “fair” to the LA. We suggest that being “fair” includes the LA obeying the law. You are having to take them to a Tribunal because in your view they have not kept to the law. Keep any desire to be fair in check.

If you have a chain of evidence that supports a particular view then, unless there is very good reason, stick with it. Once you start moving yourself from an established position you may be compromising your case.

If you are negotiating around the WD, then make sure you get the wording fully agreed rather than accepting “something we can agree later”.

Do not be surprised if the LA submit little paper evidence but turn up on the day with a witness that you were not expecting and had not been notified seeking to knock out your evidence. This might be a Headteacher or LA expert. If you did not know about this individual, then tell the Judge and object to the individual’s presence. The LA is trying to ambush you and your witnesses.

Always ask the individual who is giving evidence how long they have worked with the child for and when. It goes to establish creditability.

Hearing Flow

Case law requires that the Tribunal identify all the child special educational needs (section B), then identify all the provision necessary to meet those needs which should be specific detailed and quantified (section F) which will inform the decision then about placement (section I).

Normally the Tribunal will refer to page numbers within the bundle and then paragraph numbers within the reports. That keeps everybody focused on the key issues and underlines why your WD needs to have these points annotated.

Each case is different but normally the Tribunal will try and do sections B and F in the morning, with a little overrun into the afternoon. The Tribunal would then look at any cost implications of your appeal and that can result in some lively exchanges around fees. Make sure that the fees that you are quoting are accurate and that you know exactly what they are for.

Transport costs normally sit within fees and can be subject to considerable argument. Depending on the facts of your case it may be that you would want to check beforehand the quoted transport costs by getting your own comparator quotes with an escort or without depending on the case from a local taxi company.

You should also check travel times to see whether your child would be placed in an individual taxi or whether he would be part of a taxi run and what the runtime is from his pickup to getting to the school in the morning and separately in the afternoon.

Once you have got the costs clarified you are on the home straight and the Tribunal will aim to finish between 4 and 5 o’clock.

Outcomes – section E, are not appealable to the Tribunal although the Tribunal may amend them on their own recognizance.

Tribunal’s exercising extended powers (looking at health or social care) tend to be looked at in the afternoon. You should remember that the Tribunal can only currently make “recommendations” in relation to social care and health as they affect education, and not legally binding orders.

Summing up

The Judge may invite you to make any comments at the end of the hearing. This should not be a rehash of the previous 6 hours of hearing but addressing the key points and anything which remains in contention. They shouldn’t be lengthy.

Don’t quote realms of case law. It is an expert Tribunal with a legally qualified Judge.
When all the outstanding points have been addressed the Judge will bring the Tribunal to a close by thanking everyone for their assistance during the Tribunal and that whatever the outcome the Tribunal would wish the child well. They will then say that they would expect have a decision within 10 to 15 days and close the hearing.

Written submissions

It may be that if the Tribunal has run out of time on the day the Tribunal may ask for written submissions. Again, what you want is a series of almost bullet points saying why your views should be preferred over the authorities in respect of the themes from part B or F.

e.g., SALT – the NHS SALT report, which had no formalised assessment, recommended limited therapy. The report by Mrs X, independent therapist, after a five-hour assessment using X standardised assessments provided a comprehensive report which identified in detail Harry’s needs and the provision to meet each one of those needs. The provision was specific detailed and quantified and we suggest should be relied on by the Tribunal.”

The aftermath

At that point you emerge from the hearing, you may be in a state of shock that it is all over.

Many parents spend the evening after the nearing replaying the hearing and thinking that if only they had said “x” then that would have made a substantial difference. The likelihood is that it would not make any difference. If you have the evidence to support your view, then the LA are going to have to work hard to overcome it.

After the hearing most parents exhibit some form of depression. You had this process in the back in mind for many months it’s built up and built up over time you now have had the hearing and this all-compelling journey is now at an end, and you simply have to wait for the decision. The decision will come out from the Tribunal in about 10 days’ time, and it is at that point you either shout with joy or take consolation in the bottle.

We have done many, many hearings over the years and have been against KCs, barristers, solicitors, local authority officers. None of them would turn around and confidently say what the Tribunal is going to say. We have been in Tribunals where we have felt that we have gone 7 rounds with Mohammed Ali and had convinced ourselves that we had lost humiliatingly, only to find that we had won.

Similarly, we have been in Tribunal’s whereby we were on a roll all day and had convinced ourselves that the parents should go out and order the uniform for the school only to find we had comprehensively lost.

The decision

If you have a decision which has gone against you then we would strongly advise getting a specialist solicitor or barrister to review the document. It is possible to appeal the decision to the Tribunal and the Upper Tribunal on the point of law or perversity or if the facts change. But time is of the essence, and you do need to get a move on – act today!

Assuming that you have won the appeal, the local authority has 5 weeks to issue the amended EHCP and during that period they should be getting the speech and language, occupational therapy, social care, transport, informing the school what has been agreed and what they are going to provide and setting up the contracts with the school if appropriate. This means at the end of that 5 weeks you should have a package of support as identified within the EHCP which is ready to engage directly with your child.

If you have not got the final post hearing EHCP after 5 week’s it is time to pick up the phone and start pressing the authority to produce the EHCP. There is no reason for delay. If you do not get the plan on time, then the remedy is to use Judicial Review to cause the authority to act.

Having won the appeal what do you then need to do?

You may well need to contact the school and tell them your child is coming to them. One would hope that the local authority had told them but that is not always the case, sometimes local authorities can be a little tardy sending through the appendices and the Tribunal issued EHCP.

You may well need to contract the transport department to get transport to and from school in a timely fashion and clearly the sooner that happens the better.

The new school

It is particularly important that the transition to the new school is carefully planned and executed to ensure that the child is as comfortable as possible going there. Videos of the school, photographs of staff and visits all help to create a picture for the child so that they can become confident that they can successfully engage in the new school.

This is particularly important prior to the summer holidays so the child does not spend the summer holidays wondering about what can happen in the new school in September. For many of our children that will make the summer holidays a living hell.

You need to be an informed partner of the next stage of the child’s education and that is sometimes a very difficult balancing act to do.

The problem for many parents it is that having got to this stage, but they have been conditioned by the system to become a “warrior/tiger parent”.

You know you are one of those parents when you turn up to a meeting with a full set of notes as to what hasn’t happened from last meeting and are perfectly prepared to dissect everything that has gone on at school since last meeting.

These parents have been conditioned by the system to fight so hard for their child that they almost need to be subject to an emotional reset.

One would hope that the new school is able to meet the needs of the child from the start. At the same time, they need to demonstrate to you that they have fully understood the issues and are able to make progress. For many parents having been a warrior parent it is difficult to become a “civilian” once again.
You must give the school a chance to learn about your child. Accept that it may not be a smooth path, but it should be better than your previous experience.

Above all try and become a parent again.

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