Could remote hearings be the new normal at the SEND Tribunal?

SEND legal practitioners attend a periodic Tribunal User Group session - no surprises for guessing the latest was a remote session because of the #CoronavirusLockdown

Tribunal hearings are also now being held remotely, as I explained in my Coronavirus and SEN Law series here. The latest update on how these are going is very positive!

The Tribunal observed that the SEND Tribunal was one of (if not the) quickest Tribunal to adapt their service in light of the outbreak. All oral hearings were changed to remote hearings (video or telephone) from Monday 23rd March. 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. This should bring a sigh of relief to all parents who at first thought their hearings would be cancelled indefinitely. 

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A positive experience: your feedback needed

Initial feedback is that the remote hearings held so far have overall been a positive experience for all involved. Commentary included counsel’s considerations that video hearings could in fact be a ‘new norm’ for the SEND Tribunal. It would cut down on travelling time and costs for parents and local authorities alike. I also told 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 buildings selected for proceedings are intended to be parent-friendly, we know from experience they were often not so. I also commented that the difficulty we had experienced prior to the coronavirus outbreak with hearings being vacated because a lack of a suitable venue, or a panel established, would be removed. So, could this be a sign of things to come?

The Tribunal was pleasantly surprised by this feedback. As a result, I've 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. 

Hayley Mason
Hayley Mason

More remote hearings taking place

One of the key take-homes from the Tribunal meeting was that since the Tribunal switched to remote proceedings, it has 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. Many cases were being vacated two, three or even four times, causing significant distress to families.

The crisis was at a point where all working in the SEN field wondered if it could ever be resolved. If we can take one positive from the difficult conditions we are all in now, it is that remote hearings do appear to have solved, or at least alleviated, this availability crisis. Better still, the new remote hearings are offering something we haven’t had before: excess capacity

The reason we are seeing excess capacity is broadly two-fold. Firstly, many judges and panel roles usually also sit on other Tribunals or other roles, but these are not currently running. So their time has been freed up to dedicate to the SEN Tribunal, as one of the only Tribunals still running at full capacity.

Secondly, is the speed of the hearings themselves. What the Tribunal is seeing, and I have also had similar feedback, is that remote hearings mean 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.

How to take advantage of this additional capacity

If you are a SEND parent or representative whose previous hearing was 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 fit into this category, where all of the evidence of both parties has been served and you are ready to proceed to a hearing, you can contact the other party to try to move things along. For example, parents would need to contact the LA and the LA would need to contact parents/their representatives, and select a few mutually agreeable dates that you and all of your witnesses could do. You then propose these earlier dates to the Tribunal via email.

The Tribunal was also clear that it would sit over the Easter holidays. Depending on the developing situation in the UK, it is possible that they may also sit in August. Generally, the Tribunal does not sit during school holidays, due to lack of available judges and witnesses. However, while the population remains in lockdown, witnesses are more available to participate remotely and so hearings can continue to take place.  

The Tribunal also recognises and accepts that, at the moment, people are making the best of what they have in the home environment, which includes occasional disruptions/childcare issues and so on. 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 to gain a child’s views if they are able to, although sometimes the child just wanted to do a dance for them, which was also fine! 

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. 

Administrative issues

One thing to point out in relation to the Darlington-based administrative office of the SEND Tribunal, is that they currently have a lot of staff self-isolating and they are unable to work remotely. This means their capacity to deal with the number of matters that they usually do is 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 avoid telephoning them is possible and instead send any general enquiries to SENDIST Queries at send@Justice.gov.uk and they will respond to you between 7.00am-5.30pm. 

There is a delay at present in getting decisions out and also in chasing for attendance forms, due to reduced admin capacity. 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 previously stated while it would be registering phase-transfer appeals on the usual 12-14 week timetable, it was likely all other appeals would be registered on an extended 20-week timetable. However, due to their increase in capacity it has not yet been necessary to use the extended timetable. Therefore, while they are prioritising cases daily, at present all appeals are still being registered on a 12-14 week timetable which is hugely encouraging.

Download the guidance for video hearings here, and watch the video at the end of this article.

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 so far where the hearing has arrived and there has been no school proposed by the parents. 

In these circumstances the Tribunal has two options:

  1. The Tribunal is able to name a ‘type of school’ and some parents have requested that they do this
  2. Because of the uncertainty that can come with option one, 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 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 has 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 about the accuracy of remote testing. 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. Understandably, when weighing up the evidence, a face-to-face, in-school assessment may hold greater weight in comparison with an assessment conducted once, remotely at home. 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 five 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 important 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. 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 

  1. have to have provided a report in the Tribunal paperwork; OR
  2. provided a signed and dated witness statement, or they will not be permitted to be in attendance. 

This is to prevent something the Tribunal has seen an increase of, which is witnesses being called to a hearing, who have never seen the child in question. 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.

One useful thing I would like to stress 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 this expertise and this time to check your connections and make sure everything is working, so that your hearing can proceed on time.

"Reasonable Endeavours" are NOT in force

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 LAs 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) maybe remote hearings will become 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. 

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