By Hayley Mason, Senior Solicitor at SEN Legal
On Thursday 2nd April 2020 I attended a remote SEN User Group meeting with the Tribunal, the earlier date of 18th March 2020 having been adjourned amid the Coronavirus outbreak. Far from the devastation of Coronavirus however, the update from the SEND Tribunal was overly positive.
The Tribunal led the meeting with their observation that the SEND Tribunal was one of (if not the) quickest Tribunal to adapt their service in light of the outbreak, with all Oral Hearings being changed to remote hearings (video or telephone) from Monday 23rd March 2020. The Tribunal restated that Hearings already scheduled were therefore continuing and that they intend to keep running in this way for as long as possible (breathe a sigh of relief all of the parents who instantly thought their Hearings would be cancelled in light of this outbreak).
The feedback following the remote Hearings so far was that they had been an overall positive experience for all involved. Commentary included Counsel’s considerations that video hearings could in fact be a ‘new norm’ for the SEND Tribunal as it would cut down on travelling time and thus costs for parents and local authorities alike. I also informed the Tribunal that as I understood it, parents found accessing the Hearings from the comfort of their own surroundings much more comfortable than scary Court buildings (while selected buildings are intended to be parent-friendly we knew from experience they were often not so). I also commented that the difficulty we had experienced prior to the Coronavirus outbreak wherefore Hearings were being vacated because a suitable Court building could not be found, or a panel established would be removed. So, could this be a sign of things to come?
The Tribunal were pleasantly surprised with this feedback and I have as a result, offered to collate a document to send to the Tribunal with any feedback on the remote hearings thus far. So, if you have experienced a remote hearing and have any comments from your own experience (good or bad) that you wish me to include and this includes Counsel, witnesses and parents, please send those across to me by 5pm on Thursday 9th April 2020.
One of the key ‘take home’s’ from the Tribunal meeting was that since 23rd March when the Tribunal switched to remote Hearings, the Tribunal have not vacated any hearings. This is a very key point because all of those involved in the Tribunal system before the coronavirus outbreak will be all too familiar with the crisis point, we were reaching. It was becoming the ‘norm’ where 80% of cases were being vacated at first hearing often due to lack of judicial availability, and many cases were being vacated 2, 3 even 4 times causing significant distress to families. We were at a crisis point that all working in the SEN field, wondered if we would ever come out of. If we can take one positive from the difficult conditions, we are all in now, it is that the remote hearings do appear to have resolved (or at least alleviated) this availability crisis. Better still, the new remote hearings in fact offer something we haven’t had before and that is excess capacity.
The reason we are seeing excess capacity for Hearings in the SEND Tribunal is broadly two-fold. Firstly, many judges and panel roles who normally sit on other Tribunals or in other roles, because the SEN Tribunal is one of the only Tribunals still running at full capacity, a lot of Judges and Panel members time has been freed up because they are not currently sitting in other Courts or Tribunals that may be closed. Secondly, what the Tribunal are seeing (and certainly similar to the feedback I have received) is that we are finding that remote Hearings are often allowing Tribunal Hearings to be conducted quicker as both parties are focusing much more on the issues at hand. The common issues which delay or ‘drag out’ oral hearings on the day, such as late evidence, are not playing out in remote hearings.
The benefit of this excess capacity is that if you are a parent or a Representative working in the SEN field and you have previously had your hearing vacated due to a lack of judicial availability, you can now write to the Tribunal to ask for an earlier hearing date if you are ready to proceed. If you feel that you do fit into this category wherefore all of the evidence of both parties has been served and you are ready to proceed to Hearing, what you can do is contact the other party (so parents would need to contact the LA and the LA would need to contact parents/their representatives) and select a few mutually agreeable dates between you that yourselves and all of your witnesses could do and then propose these earlier dates to the Tribunal by email.
The Tribunal were also clear that they would sit over the Easter Holidays and dependent on the developing situation in the UK, it is possible that they may also sit in August. Generally, the Tribunal do not sit in holidays due to lack of available judges and witnesses, but while the population remain in lock-down, obviously witnesses are available to participate remotely and thus Hearings can continue to be heard.
What may also be music to your ears is that the Tribunal do recognise that at the moment people are making the best of what they have, in the home environment and this does therefore mean that occasionally there are disruptions/childcare issues etc and the Tribunal do accept those interruptions in light of the current circumstances. This is refreshing for parents who had expressed concerns about holding a Hearing with their children also being present. The Tribunal also commented that video hearings had served as a helpful way for to gain child’s views if they are able to, although sometimes the child just wanted to do a dance for them which was fine also.
It is worth noting if you are struggling to get witnesses to participate in a remote hearing, that witnesses can still be summoned to attend, but the Tribunal would need to know that they have refused attendance and why their attendance is necessary.
What about the administrative side?
One thing to point out in relation to the administrative office of the SEND Tribunal based in Darlington, is that they do currently have a lot of members of their team self-isolating and they are currently unable to work remotely - so their capacity to deal with the number of matters that they usually do are somewhat reduced. Appeals are still being registered, but the message from the Tribunal was that unless your hearing is in the next couple of days, please refrain from using the reduced capacity of the telephone line and instead send any general enquiries to SENDIST Queries at send@Justice.gov.uk and they will respond to you between the hours of 7.00am -5.30pm.
There is understandably a delay at present in getting Decisions out and also in chasing for Attendance Forms due to reduced capacity but the Tribunal is doing what it can to get Decisions out within the prescribed 14 days wherever possible and ask for patience at this time.
The Tribunal also stated that while they had previously issued guidance stating that they would be registering phase-transfer appeals on the usual 12-14 week timetable but that it was likely all other Appeals would be registered on an extended 20 week timetable, due to their increase in capacity it has not yet been necessary to use the extended timetable. Thus, while they are prioritising cases daily, at present all Appeals are still being registered on a 12-14 week timetable which is hugely encouraging.
So what issues are the Tribunal currently seeing in Hearings?
Understandably, due to the situation with schools being closed and therefore not able to respond to consultation requests or carry out necessary assessments, there have been some Hearings that have proceeded thus far where the Hearing has arrived and there has been no school proposed by the parents.
In these circumstances the Tribunal has two options;
The Tribunal is able to name a ‘type of school’ and some parents have requested that they do this; or due to the uncertainty that can come with that option an alternative option is;
The Tribunal can ‘stay’ the proceedings.
It should be borne in mind that if you are requesting the Tribunal ‘stay’ your Appeal, in line with the current government guidance, these cases will be stayed for 12 weeks (as it is currently unlikely that schools will open again before September). This is something that parents will have to weigh up if they currently do not have a school offer of place going into a Hearing as to what will be best to ask for, for your child in the circumstances.
How are witnesses affected?
One of the biggest questions coming in from all of the experts I work with, is how are assessments going to work going forward and will the Tribunal will consider remote assessments?
Encouragingly the Tribunal again had an open mind in relation to this new way of assessments. Ultimately the Tribunal’s view is that it will be down to that professional as to whether they can satisfy themselves as to the accuracy of remote testing and I know this is something that many experts are investigating. The Tribunal did state that it would continue to take each piece of evidence on its own merit but understandably when weighing up the evidence if faced with a face to face, in school assessment, in comparison to an assessment conducted once, remotely at home, the face to face assessment may hold greater weight - but this will need to be determined in each individual case.
Are we seeing any changes?
Another issue raised in relation to the issue of remote hearings is that of late evidence. Understandably late evidence (and by late evidence I mean the now familiar scenario of parties asking for evidence to be admitted on the day of the Hearing) is not possible with remote Hearings. The Tribunal will be clamping down on late evidence and all evidence to be heard in an Appeal must be received by the Tribunal 5 working days (one week) in advance of a Hearing. If parties are aware that some parts of their evidence may not be available by the further information date, it is therefore particularly pertinent that parties ensure that they can get it to the Tribunal one week in advance or miss it being heard/admitted.
Local Authorities are still to prepare paper bundles as per the Case Directions but if individual Authorities expect they will have difficulty doing so, they are encouraged to contact the Tribunal and set out those difficulties at the earliest opportunity.
Lastly another measure the Tribunal is bringing in (that is most definitely welcomed on my part and I am sure many other parental advisors) is that any witness attending a Hearing in the SEND Tribunal will either a) have to have provided a Report in the Tribunal paperwork; or b) provided a signed and dated witness statement, or they will not be permitted to be in attendance. This is to prevent (what the Tribunal has seen an increase of) which is witnesses being called to a Hearing, who have never seen the child in question and what they are going to say is not known until they are on the stand - which poses a substantial disadvantage to the other party and their ability to properly prepare their case. This is something I have certainly seen for several years whereby witnesses are called to give evidence and take up valuable time when they have nothing of use to add to the proceedings. This is a move by the Tribunal, that I most certainly welcome.
For all parents attending the Tribunal via video hearing the Tribunal have produced some helpful guidance about accessing video hearing, (click here to read the written document or watch the short video below). One thing I would like to stress because I think it is useful for Counsel, Witnesses and Parties is that technical support is available for parties and witnesses from 9.30-9.45am for hearings commencing at 10am and 1:30-1:45pm for hearings commencing at 2pm, so please do use these expertise and this time to check your connections and make sure everything is working, so that your hearing can proceed on time.
I would also like to remind all reading this blog that at present in the SEN world – nothing has changed. The ‘reasonable endeavours’ wording is not yet in force and will not be so until the Secretary of State issues a Notice doing so. This was confirmed by the Tribunal. This has not yet happened, and all Local Authorities therefore currently remain under an absolute duty to provide the support in a child’s EHC Plan and to comply with relevant timescales.
Who knows, when the Coronavirus passes (and eventually it will pass) – remote hearings may be in fact the new ‘norm’ for the SEN Tribunal?
If doing so eases parents’ anxiety of the more ‘formal’ proceedings in large unsuitable courtrooms, saves costs of Representatives and witnesses (no travel costs, overnight stays etc) and reduces the duration of Hearings, in turn allowing more Appeals to be heard - then certainly it is my view that should be encouraged. Only time will tell.
Until that time, stay safe, stay well and we will get through this.