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How To Win ASEN Appeal (transcript)THE HEARING
Overview Hello, my name is Douglas Silas, and I am a solicitor who specialises in representing parents of children and young people with special educational needs, or SEN for short. This is the second part of my video about ‘How To Win A SEN Tribunal Appeal!’ and you may have already seen Part 1 about ‘Making An Appeal’, where I have told you about the various steps that you need to take if you have to bring an appeal to the Special Educational Needs and Disability Tribunal, to ensure that any appeal that you bring is as strong as it can be, so that you then have the best chance of succeeding with it. In this second part, I will now tell you about the various steps that you need to consider or take at any hearing before the Special Educational Needs and Disability Tribunal, to also ensure that any appeal you bring is as strong as it can be, so that you then have the best chance of succeeding with it. Preparing for the hearing of your SEN Tribunal appeal. Introduction It is an old adage that “people do not plan to fail, they fail to plan!” and a similar idea applies here for ensuring you prepare properly for a Tribunal appeal hearing, as you always need to plan properly if you want to win in the end. The Bundle As mentioned previously, when registering your appeal, the Tribunal will set out a timetable of dates, which will include the date by which the LA must produce a bundle for the hearing. The reason for this deadline ahead of the hearing is to give you, the LA, everyone’s witnesses and, of course, the Tribunal panel hearing your case, enough time to properly read and consider it. In previous years, this used to be set for just a few weeks before the hearing, but recently, with timetables stretching to over a year, this can sometimes be over 6 months in advance of the hearing, often necessitating a supplementary bundle. However, if appeals are expedited and hearings are listed earlier because they are about phase transfers or where children or young people are out of school, the date for bundles to be produced are still sometimes just a few weeks before the hearing. Bundles I see usually amount to between 200 to 500 pages or so. There is written guidance from the Tribunal about how bundles are produced and there are different page number limits for different types of appeals, which both parties need to be aware of and which you should also bear in mind when submitting documentation, to ensure that you keep within current or future limits. Reading a bundle properly always takes much longer than you may think to go through. Reading a bundle properly means that you should highlight, tab and make notes on it (either in hard copy or an electronic version). It actually takes me a whole day or more to prepare for a hearing and, remember I have done hundreds of appeal hearings You also need to find the time and somewhere quiet to read and prepare, where and when you will not be distracted. For example, if both parents are involved in an appeal about their child, then I would encourage one parent to do it first by themselves, whilst the other takes responsibility for looking after their child or children, and then vice-versa. I also would encourage you to do it in the morning or first part of your day, when you are fresh after a good night’s sleep, as you will be more likely able to think and come up with good arguments, than when you are more tired towards the end of your day. There is also nothing worse sometimes than starting a job, but then finding you have run out of time for it and still need to complete it at another time, where you may have to rethink about things. Witnesses You and the LA will have already listed your witnesses on your ‘Case Review Form’ and confirmed that they have written a report or document in the appeal. In terms of numbers of witnesses, you are normally allowed three, although you can apply for a fourth, in exceptional circumstances. You must therefore carefully consider the professional disciplines of the witnesses who you want to call as a witness, who will orally present the strongest case for the Tribunal of what provision a child or young person requires. This is extremely important to consider as, even if a witness has prepared an assessment report, they may not be a strong witness for you and can sometimes even undermine their own report at the hearing when questioned orally. Often, the most obvious witness to call when discussing a child’s or young person’s SEN is an Educational Psychologist (or EP), who has recently assessed the child or young person. But a child or young person may also have communication issues that need to be discussed by a Speech and Language Therapist (SaLT), or motor skill difficulties and/or sensory issues that need to be explored by an Occupational Therapist (OT). There may even be a need for a Physiotherapist (or PT) to give oral evidence. However. Oral evidence is also sometimes given by medical practitioners, such as clinical psychologists, paediatricians, psychiatrists or other doctors. It may also be important to have someone from the child’s or young person’s proposed or current educational setting attend as a witness, especially in an appeal involving Section I. Lastly (for this section), it is essential that you ensure each witness has a copy of the Hearing Bundle (or supplementary bundle), with all of the documents before the Tribunal; but you also need to ensure that they have copies of any ‘Late Evidence’ and the most up-to-date version of any ‘Working Document’. Expert evidence I want to look specifically for a moment at expert evidence itself. One (or more) of the most important documents in an appeal are the reports of professional independent experts. Yet experts are not only professionals from particular disciplines, but may also be other people, professional or otherwise, who work with or know a child or young person. For example, as a parent, you are also an ‘expert’ on your own child’s needs and a young person may also have strong views of their own. It is also essential that the provision contained in an EHCP is specific and quantified. Therefore, if your appeal is challenging provision or placement in an EHCP, the experts you instruct should be informed of the need to make their recommendations as specific and quantifiable as possible. If not, the Tribunal may be less likely to implement their suggestions, putting your appeal at a disadvantage. In being specific, phrases such as ‘regular’, ‘as appropriate’ and ‘as deemed necessary’ should be avoided, and specificity should be held to high importance. Caselaw has stated that the real question is whether the EHCP is so specific and clear, so as to leave no room for doubt as to what has been decided and what is needed in the individual case. Therefore, provision outlined should also be quantified; for example, clearly stating the number of hours of support or therapy required to meet the child or young person’s needs. Next, I will tell you about the hearing itself. I am now going to talk to you about the hearing of your SEN Tribunal appeal itself. I am afraid though that this section is very long, as I have a lot to tell you! This next part is talking about oral hearings in person, but similar principles apply to video hearings, which I will talk about later, as I want to give you a lot of detailed and specific advice. Introduction Hopefully, you have now managed to do all the things that have been discussed in the previous parts of this video and, at long last, the day of the SEN Tribunal appeal hearing arrives. Before the hearing Approximately a few weeks before the hearing, the Tribunal issues parties with a letter called a “Notice of Hearing”, confirming the venue and the time the hearing will start. This notice will also confirm the witnesses and representatives from both parties. If the witnesses on the Case Review Form have been left incomplete, the Tribunal will ask for these to be confirmed as soon as possible, or the witnesses may not be able to attend. Hearings will normally start at 10 am or 2.00 pm, (the latter is only for half-day hearings, which is where the appeal is only against a refusal to make an EHC Plan, or the issues in dispute are very narrow [say, if the appeal is only against Sections B and F]). An oral SEN Tribunal hearing is usually split into two or four sessions of about 1 ½ hours each. Appeals against decisions of refusals to assess are now heard normally only ‘on the papers’ (i.e. without an oral hearing, which this video is really talking about). I would encourage you to meet with your witnesses and/or representative at least an hour before the hearing is due to start. When you arrive, you will be greeted by a Tribunal clerk to your appeal, who will ensure that you are aware of the Tribunal process and what will happen at the hearing and will take from you copies of any ‘Late Evidence’ and ‘Working Document’ that you have brought to use. The hearing When the hearing is due to start, you will be led into the hearing room where there will be a table with the Tribunal panel on the other side made up of either two or three people who are going to hear your appeal. The person in the middle, the Tribunal Judge, is a lawyer and the other one or two 'wing members' will have knowledge and experience of SEN (or health or social care issues for National Trial appeals), although you will not be told exactly what they do. After any preliminary issues, such as checking everyone has the right bundles and documents, whether any ‘Late Evidence’ should be allowed and the use of any ‘Working Document’ etc., the hearing will start with the taking of evidence from you and everyone’s witnesses. It is hard to describe what your hearing is going to be like, simply because each hearing is different. Each Tribunal panel always approaches each case individually and different Tribunal panels often have different views and procedures for different cases. This lack of advance warning can be quite frightening for parents but, provided that you have prepared your appeal properly, you should have identified many of the same issues as the Tribunal panel and be able to then address them appropriately, referencing it to the documentation in the bundle where relevant, which everyone should all have copies of and should have read beforehand. The SEN Tribunal appeal hearing, although a formal setting, is meant to be conducted as informally as possible and is aimed at being as “parent-friendly”. There will be an opportunity for everyone to speak or answer questions and for you to question the LA's witnesses. They will also have the chance to do the same to you and your witnesses. Closing Submissions At the end of hearing, there will be an opportunity for the LA, first, to give a closing submission and then for you to do the same. You should ensure that you address the panel on the evidence and legal arguments that support your case. At the very end, the Tribunal will tell you that they will now deliberate and consider their decision, but they will not give you a decision on the day of the hearing itself. The aim is to get written decisions out in 10 to 15 days from the hearing. After the hearing After considering all of the evidence, both written and oral, the Tribunal panel makes their decision in writing, which should be issued within about 10-15 working days from the Hearing Date (i.e. two to three weeks). Unfortunately, it has been known to be longer sometimes and a lot of chasing sometimes has to be done. The Tribunal will also inform you, when sending you their decision, that if you consider that the decision is wrong in law, or that there is another reason why the Tribunal should look again at its decision, you can ask for a review (because there has been a change in relevant circumstances since the decision was made), or appeal (if you think that the Tribunal’s decision was wrong in law) to the Upper Tribunal; but you must first apply to the First-tier Tribunal for ‘permission to appeal’ before you can do this. Regardless of whether the decision is in your favour or not, there are certain timescales involved to carry out the decision depending on the type of case and the outcome. Please note that there are also many other things you may need to know about when bringing an appeal, from things like instructing experts and obtaining strong reports (not as easy as it sounds), Telephone Case Management Hearings (TCMHs) or postponements/adjournments, to things like tactical or strategic considerations about timings, witnesses, documentation etc. How Best To Handle Video Hearings Since the first Covid-19 ‘lockdown’, most appeal hearings have been held as a video hearing (sometimes called a ‘remote hearing’ or ‘online hearing’). I therefore want to spend time here also talking specifically and in detail about the best way to handle video hearings, as they are now slightly different to ‘in-person’ hearings. Overview of Video Hearings The first thing is to realise that, overall, the reaction to video hearings in SEN Tribunal appeals has been quite positive. For example, parents seem to like them (even though they are sometimes worried about technical issues and not having their physical ‘day in court’) and both parties seem to like them, as they are easier to get to and from and attend from the comfort of your own work or home environment). SEN Tribunal panel members also seem to like them (as they seem to help avoid unnecessary postponements or adjournments, are cheaper and quicker to list, and seem to allow everyone to focus more on the issues (e.g. they allow for fewer interruptions!) Personally, I am a great supporter of video hearings as, being a physically disabled person myself who uses a wheelchair and who also has a visual impairment, these types of hearings have significantly increased my access. However, with video hearings, you now do not just have to be a good advocate or witness for your case, you also need to be ‘IT-’ or ‘tech-savvy’, in order to minimise the impact of the move to video hearings. You also need to remember that the video format does not always work well for everyone, such as deaf or hearing-impaired people, people who require an interpreter, or other vulnerable individuals. Preparation Firstly, I am going to stress the importance of good preparation from the outset. Good preparation is always key to any successful task and should always be your guiding principle in SEN Tribunal Appeal cases. These cases are still always decided on evidence but, in fact, in video hearings, there is now increased significance of this, as Tribunal panels are more reliant on written material in front of them. Good preparation also strengthens a case and promotes earlier settlement and engagement, as it helps identify issues quicker. It is always going to be important to try to identify or pre-empt issues, and investing in additional time or resources early on is always worth it in the long run. You always need to try to narrow the issues in dispute and focus on the issues that matter and, as in an ‘in-person’ hearing, but now, more significantly, a Tribunal panel will not look favourably on a party who wastes their limited time (i.e. on points which should not be pressed or which should be capable of agreement). Good preparation can also therefore show the Tribunal sometimes that you are actively trying to settle issues in the case, or the case itself. Evidence It is also now very important to check the (mostly electronic) bundle when you first get it, as your chances to fix ‘gaps’ during a hearing now, like you might be able to do in an ‘in-person’ hearing, are more limited. In fact, electronic bundles can often be more helpful because you can convert the bundle to easily be text-searchable, or index it for quick and easy navigation (so you should not even need a paper bundle now). That being said, whilst you have always been required to have evidence to cover all the ‘gaps’ as I have said and, whilst you can still submit ‘Late Evidence’, do not leave it until the last minute to do this and always try to send it to the Tribunal/LA at least 5 working days before the hearing if you can. But do not overwhelm the Tribunal with documents like this, because you have to always remember that Tribunals (even in video hearings) have demanding caseloads and you need to try to be selective and as precise as possible. Before the hearing Just as in ‘in-person’ hearings. a few weeks before the hearing, the Tribunal issues parties with a letter called a “Notice of Hearing”, confirming the time the hearing will start. This notice will also confirm the witnesses and representatives from both parties. But now the Notice of Hearing will have on it an internet link and telephone details for the hearing, so it is very important to send this to everyone before the hearing. I know that the Tribunal always tells you not to try a hearing link until just before the hearing, but I have found that you can still try it to make sure it is correct without joining, to make sure the link works a day or two beforehand. Again, if witnesses have not been listed on the ‘Case Review Form’ or they have been left as ‘TBC’, the Tribunal will ask for these names to be confirmed. If this is not complied with, witnesses may not be allowed to attend. Hearings will again normally start at 10 am or 2.00 pm, (the latter is only for half-day hearings) and the hearing is again usually split into two or four sessions of about 1 ½ hours each. I would once more encourage you to meet with your witnesses and/or representative at least an hour before the hearing is due to start. Discussions There are also now reduced chances for discussions in video hearings, so you should usually also have a meeting with your witnesses well before the hearing (a few weeks beforehand if possible) and you need to make sure that everyone in your party has each other’s contact details, so that they can speak with each other directly, if they need to. Remember, there is also no chance to pass a sticky note in a video hearing or to kick somebody under the table, so you will need to have an alternative form of communication during a hearing for private chats between you and your witnesses (like note-passing in an in-person hearing). Personally, I use WhatsApp during hearings, as you can have different groups for different people/mixes of people. You can also use WhatsApp on your computer but be careful if doing this, because it risks filling up your computer screen. You do not always need to use WhatsApp, but you still need to find an alternative method of communication (and please ensure that no-one else can hear you!). You should also try to create an opportunity for you to speak or meet with the LA’s representative if you can. Presentation Like preparation, good presentation is also the key to success in a case and this should also be your guiding principle too. It is always better to appear by video at a hearing if you can, rather than by phone (it appears more personal), but you should always use your phone as a back-up (I would advise you to always put the number in your phone beforehand just in case, so if things do go wrong, you will have no wasted time at the hearing looking for it). Even though it is a video hearing and you may be tempted to dress down, you should always dress appropriately or professionally and show respect to the Tribunal. You should try to use an upper body shot, not just your face, and also use a professional/plain backdrop (i.e. nothing distracting) and ensure that sufficient lighting is on you - so avoid having a window in the background, where you are then sitting in shadow. I have noticed that Tribunal panels seem to think that everybody needs less of a break during video hearings. So, it is very important to always inform the Tribunal if you have any caring responsibilities, or other difficulties that need to be accommodated. If you do have specific needs, you are best to bring these to the Tribunal’s attention at the start of the hearing. You also need to be realistic about timings and logistics, as things sometimes take longer in a virtual setting. Technicals (for you) Technically speaking, you should ensure your web browser is up to date and works with the Tribunal’s own system (known as Kinly CVP [Cloud Video Platform]) and you should try to use Google Chrome as your web browser and try to avoid using browsers like Internet Explorer, Microsoft Edge, Mozilla Firefox, or Apple Safari if you can, as these do not always work. Remember also, larger computer screens are always easier to see than screens on tablets or phones which are smaller, and you should try to use a computer if you can, although I know that this is not always possible. Try to also have a second screen or device available if you can, to display your electronic bundle. This can also act as a ‘back up’ device, just in case of accidents. Though it sounds simple, if you are using a laptop computer or a mobile phone which is not being charged, then try to make sure that they are fully charged before you start and that there is a charging device or point nearby. If you are using a mobile phone or tablet always try to use Wi-Fi, as otherwise it can be very expensive! You also need to limit the tabs/windows open on the screen to just what you need, so as not to be a distraction. I know it again sounds simple, but if you are going to be attending a video hearing, then you should ensure that you are in a bright, private space where you are unlikely to be interrupted and everyone in your home or work environment knows that you are in a video hearing. You should also ensure that no one in your house is streaming when you are using the internet and that you have a good internet connection and bandwidth. Finally (for this section), you should always trial or test everything prior to the hearing, because there is only limited technical support available for users at video hearings. You should also have a ‘Plan B’ in place in case things do go wrong and, again, although it sounds obvious, make sure you use the right joining details for the right hearing! Technicals (for others) But it is not just you to think about technically … Always try to give as much information as possible to other people on your party beforehand about what you expect them to do and if there are problems, especially if they are giving evidence (again, see below). You need to realise that witnesses may also not have done a video hearing before, so they may also feel a bit overwhelmed. Your witnesses may also not have adequate computer, tablet, or phone connections, so you always need to check this with them beforehand. If it is easier, then you can refer them to this video! Practicalities Please note that it is a contempt of court to make any recording of the hearing, so you will need to make good notes, especially so you can refer to things later when you have a chance to speak (as I said before, there is less chance for interrupting other people). At the start, you should explain to the Tribunal if someone is not present that you expected to be there (and also, in my experience, if you see somebody in the hearing that should not be there!) Like an ‘in-person’ hearing, you also need to check at the start of the hearing that the Tribunal has the full bundle and any ‘Late Evidence’ sent and to make sure that, if it is an appeal against the contents of an EHC Plan, that everybody has the latest copy of any Working Document being used. During the hearing you additionally need to tell the Tribunal immediately if someone has dropped out because of connectivity issues, as they may not realise otherwise. You may need to keep a note of when the person dropped out if they are in your party, so the Tribunal can backtrack if necessary. It is very important to realise that there is nowhere to hide in video hearings! Everything you say or do is on display, such as your facial expressions and reactions; and remember that video is led by audio, so if you are unmuted (you should usually be muted unless you are speaking) and something loud happens where you are, then it will be your face that appears on the screen. As I say, you should always be on ‘mute’ unless you are speaking, otherwise you may hear somebody’s washing machine going! Also, there is nothing worse than a person saying something under their breath that is then heard by others. Finally (for this section) there are a number of don’ts:
Conduct Always let the Tribunal Judge lead the hearing and direct things, so it is clear who is meant to be talking. Focus on the Tribunal panel if you can, especially during the witness evidence, as you can get clues from their facial expressions and body language during this, as to how they have thought of that evidence. Remember, faces are more magnified now! Try and always maintain eye contact if you can. It is difficult to do this sometimes with computer screens often having their camera at the top of the screen (or tablets at the side in ‘landscape’ mode), so that you are not making eye contact or looking at the camera and it can then seem that you are looking down, away or are not interested. Also, try to put more focus on presentation of evidence rather than just speaking. If you are asking questions, consider them carefully before you ask them and be focused and brief if speaking, so that you get to the point quickly. You should also try to cooperate with the other party, whether it is on technical issues, or trying to compromise on something. You should always try to be as transparent as possible with the Tribunal - they will appreciate all of this. In terms of other aspects of conduct, just as in physical hearings, you are only permitted to drink water, and you must not eat during the hearing. You should also avoid inadvertent over-speaking of others and should not interrupt somebody else if they are speaking. As you should be on ‘mute’ unless you are speaking, if you do need to speak when it is not your turn, just simply raise your hand to show that you want to say something (if you are holding your hand up for a while without being seen, you can wave it gently to draw more attention to yourself!) Other things In terms of other things, you need to remember that you now have less chance for the Tribunal to interrupt a witness if they go off track, so you will need to remind your witnesses before the hearing that they should also be as focused as possible. If the hearing is about the contents of an EHC Plan and there is a ‘Working Document’ bein used. you should try to get everything discussed or agreed in advance if possible with the LA, and if there is new wording being discussed or agreed during the hearing then you can use the ‘chat’ facility to type out that new wording, or ask for it to be typed out by someone else, for everyone to see and copy, so everyone has the correct wording being discussed or used. Remember, there is no longer a chance to keep a master copy of the ‘Working Document’ after the hearing, so you will need to take a good record of any changes being agreed. You need to avoid giving new evidence during hearings (if submitting the documents as ‘Late Evidence’ during the hearing, if agreed, you should use the email address/subject header detailed on the ‘Notice of Hearing’, but you need to remember that the email may not reach the Tribunal quickly or at all. Most importantly, you always need to outwardly stay calm, so if something happens that you were not expecting, do not panic, just apologise, catch your breath and re-focus. Do not be afraid to ask for evidence to be repeated if you miss something because of technical reasons. If something does go wrong, as I say, do not panic – expect the unexpected! Conclusion To conclude, there are always teething problems with any new technology and, comparatively speaking, video hearings are still quite novel. You should treat video hearings like physical ones, but try to use video hearings to your advantage now. The main things that I want you to remember about video hearings is that you should always be patient and flexible and remember that everyone (including Tribunal panel members) are in this together and may also have IT difficulties, so make it easy for them too. On balance, as I say, experiences of video hearings so far have been broadly positive and, considering that sometimes there are difficulties listing hearings and they need to be postponed or adjourned, the interests of justice clearly beat potential technical issues. That’s it from me. I genuinely hope that it has been helpful to you. I wish you the best of luck with any appeal that you bring (or which you are involved in). |
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