Going to an SEN hearing without assistance – Part 3 – Telephone Case Management Hearings

“Case Management” refers to the things that have to happen for a case to be ready for a hearing of the issue – it concerns issues like: when should the evidence be served, when should the hearing be, when should the bundle be produced, should that school have to produce documents in the case, should a potential witness be summonsed to attend, should an expert be permitted access to a school, should an expert be permitted to assess a child?

Usually case management is dealt with in writing; with the Tribunal issuing Orders when parents or LAs ask it to, via a Request for Changes Form.

Sometimes, an issue will arise in a case where the Tribunal will decide that a Judge needs to speak to both the LA and the family in order to make decisions about what needs to happen before there can be a hearing of the substantive case. When these issues arise the Tribunal will arrange a Telephone Case Management Hearing (which you may see referred to as a TCMH, a CMH by Telephone, a CMC (from the generic civil court verion of “Case Management Conference”).

Telephone Case Management Hearings don’t happen in every case, only when there’s an issue that needs a decision to be made. Some of the issues that tend to lead to TCMHs are:

1. When a hearing is 2-4 weeks away and it looks to the Tribunal like the case isn’t ready for a hearing.

2. When a party is seeking postponement of the hearing at short notice (and the other party desperately wants the hearing to go ahead).

3. When there’s an argument about whether an expert should be allowed to see a child or go into a school to look at the provision.

4. When a case has become complicated for some reason and the Tribunal are trying to keep it on track.

[this is not an exhaustive list]

The Tribunal can arrange a TCMH because it wants to have one (and this does sometimes happen) and the parties can ask for one. It can be useful to ask for one where:

  • the stakes are high eg. the LA want the hearing to be postponed, you really want it to go ahead.
  • something is urgent or otherwise needs to be resolved quickly (eg. you know the hearing will have to be postponed for a good reason, but it’s really important to get a new date for it quickly)
  • the procedural history (of Request for Changes Forms, Orders etc) has got complicated and confusing and/or is lengthy – Judges are only human and will not thank you for having to wade through lots of paperwork, so think about encouraging them to choose to list the case for a TCMH where you will be able to talk to a Judge and explain where you are now and what you would like them to next. When this happens, sometimes a Judge will reserve the case to themselves for the purpose of case management, meaning that to avoid any other Judge having to get to grips with the ins and outs of the case, that particular Judge will deal with all of the subsequent Request for Changes Forms and any further TCMHs needed.
  • you prefer talking to writing – if you think you will be able to better express yourself verbally than in writing, it’s worth putting enough down on paper to persuade the Judge that there’s an issue that needs to be decided and then explaining you’d prefer it if the case could be listed for a TCMH.

It is the Tribunal’s decision whether to list a case for a TCMH or whether to make decisions and issue an Order on the basis of having read the papers only. There is limited judicial time, so only important issues go to TCMHs – this isn’t a reason to never ask for a TCMH, but to expect that sometimes you’ll ask for one and the Tribunal will decide it has enough information in the papers to make a decision and doesn’t need one. [This means, always include enough information with a Request for Changes Form that the Tribunal could make a decision on the basis of the papers]

The Tribunal is allowed to review its own case management decisions. It’s important to reflect before making this sort of application, because it’s often better to accept a case management decision hasn’t quite gone your way rather than put a lot of time and effort into challenging it, but it is possible to ask the Tribunal to look again at its case management decisions. It can be a useful argument to say that you had asked for a TCMH, which the Tribunal decided against in making its decision and that the issue is important enough that it should be considered afresh at a TCMH where the Judge will be able to speak to both you and the LA.

If you find yourself with a TCMH being listed because of a request from the Local Authority or of the Tribunal’s own initiative, you can consider asking the Tribunal to cancel it and decide the issue on the papers. If you’re better at writing than at talking this is worth thinking about. But equally, there’s often good reason to go with the Tribunal’s decision – you get an opportunity to talk to the Judge and expand on what you’ve written. If you’re Deaf/deaf, you might want to ask for a CMH that’s in person or possibly by video conferencing; if you’re in this position, it’s worth being clear if you actually want a face to face hearing, because face to face CMHs are rare and I’ve not yet come across one conducted by video conferencing. The Tribunal might, with the best of intentions, decide it wants to reach a decision on the papers, rather than organise a face to face hearing, thinking this is less stressful than making you travel to an attended hearing.

The risk of a TCMH is that sometimes the discussion will go in a direction you hadn’t anticipated or prepared for. It is possible to make further applications for additional directions orally, during the course of a TCMH. A typical example is an LA having had its application to assess the child declined to immediately apply for postponement of the hearing.

In terms of the practical preparation for a TCMH

1. The Judge presiding at the TCMH will probably have limited paperwork (it is highly unusual that they would have the bundle or any of the evidence served) – so if there are documents that are directly relevant to the TCMH, send them for the attention of the relevant Judge (obviously copied to the LA). If the Judge doesn’t volunteer the information, you can ask them which papers they’ve seen.

2. You may decide it’s worth putting in an additional bit of written argument to assist you in talking to the Judge (again, copied to the LA). You may decide against this – that the documents already submitted are sufficient and that you just need to make notes for your own use.

3. If you and your child’s other parent are appealing together, you can both join the TCMH. If you have a friend willing to act as a helper, there’s nothing to prevent them joining too, even if it’s to take accurate notes for you. Usually the Judge will begin the TCMH by finding out who is on the call for both the LA and the family. It is not unusual for LAs to have both the case officer and a lawyer join.

4.Sometimes one of the first questions a Judge might ask is whether you and the LA have spoken to each other. It’s worth considering trying to speak to the LA’s representative the day before or earlier during the day of the TCMH to see if you can agree anything. Sometimes, you’ll get agreement on nearly everything and you’ll be able to ask the Tribunal to cancel the TCMH and/or you’ll be able to join the TCMH, tell the Judge about the agreements reached and have any Directions issued in an Order [this is a useful strategy where an LA say they’re going to do something, but in the history of the case they’ve often failed to do the things they said they were going to]. Other times, you might get agreement on some of the issues, which provides a good starting point. Other times again (and bear in mind TCMHs are only arranged when there are case management issues to be resolved between the parties), you might be able to talk to each other only to discover that there’s nothing you agree on and the Tribunal will have to resolve the issue.

5. The better you know your own papers the easier the experience will be.

6. The quieter the place you’re in when making the call, the better.

7. It is much easier to participate in a TCMH when you have a headset that allows you to listen without one of your hands holding the telephone. Using “handsfree” settings might work, but sometimes doesn’t because your telephone can pick up a lot of background noise.

8. Although you can join a TCMH from anywhere with a telephone line, it will be much easier for you if you can do it somewhere where you have a desk or table where you can spread your papers out. Don’t join from a train (issues of mobile reception and of your own privacy – sometimes quite personal information needs to be discussed).

9. If you’re joining the TCMH with your child’s other parent and/or a helper and you’re in the same place as them, you probably want a pad of big post it notes and/or a computer with open word processing software, so that you can communicate privately with each other during the hearing in a way not heard by the Judge or LA [the sound of quiet typing, if it comes across over the phone is fine, as people often make typed notes]

10. Try very hard to not talk over anybody else; this isn’t always easy over the phone.

11. Listen as carefully as you can; over the phone you’re missing a lot of non-verbal information that most people would get if face to face.

12. If the Judge asks you a direct question, try to answer it. It’s always OK to say “I don’t know” and much better to do this than anything else if you don’t know what the answer is. If you don’t understand what you’re being asked, ask them to explain again.

13. Remember the Judge at the TCMH is unlikely to be the Judge at the final hearing.

Going to a SEN hearing without assistance – Part 2

If, despite what I’ve set out in Part 1 of going to a SEN hearing without assistance you are representing yourself, the following are some of the important things to consider doing in preparation for the hearing itself. This list doesn’t include advice on case preparation, which is a whole separate topic and much, much more important than what I’m writing about here.

  1. Sort your papers out. Usually the LA will be required to supply the Tribunal Bundle. Make sure the Bundle you have is complete and all the pages can be read. If not, do something about it. It doesn’t happen often, but it has been known for Tribunals to have to adjourn on the day because the Tribunal Bundle is in such a poor state that the panel cannot conduct the hearing using it. If you don’t have easy access to photocopying facilities find somewhere local that does – you will need copies of the Bundle for any witnesses you are taking with you. Make sure you know your way around the papers – use post it notes, coloured sticky tape strips and so on. You might try putting it into a lever arch file (or two). Make it easy for you to work with it. If you have additional papers you need to have with you eg. notes for yourself, extracts of case law, don’t muddle them with the bundle.
  2. If you are appealing together with your child’s other parent (or with another person in a more complex family situation), think about how to divide the work between you in ways that make best use of your respective strengths.
  3. Make sure you have a suitable bag for your papers; nowadays most lawyers will take papers in wheeled suitcases, but you might get away with a rucksack if there isn’t much paper overall. Don’t overfill your suitcase – you may be expected to repack it and leave the room quite quickly at lunch time and at the end of the day, so a bigger case than you really need with some empty space can be useful. Check your case and any other bag you’re taking with you against the current security requirements for Court buildings – definitely remove scissors, nail files, the metal travel cutlery you have for eating lunch and so on from your bag in advance.
  4. Consider doing a “recce” visit to the Court building where your case will be heard. You might not be able to do this logistically, given child care and also given that venue details aren’t usually given until about a week before the hearing. But if you have a chance and particularly if you find travelling stressful, it’s worth doing a dummy run to make the logistics easier on the day of the hearing. Court buildings vary enormously in style and atmosphere and layout. Although SEN cases are heard in private, most cases in Courts are heard in public and Court buildings are open to the public. You should be able to go into the building, navigating security (keep an eye on the current security requirements that are being applied in bizarre ways), work out where the toilets and consultation rooms are and see where the lists are. The lists are pieces of paper put on a notice board which tell you which room your case is in. SEN cases will be listed by their case number on the lists not by name. Some Courts have information desks, other don’t. Some Courts have canteens, others have vending machines, but the catering is generally not very good in the building itself. It’s worth exploring the nearby streets to see what’s there that might be a good place for breakfast/lunch for you and any witnesses [sometimes it’s easier to meet at a coffee shop near the Court than to meet in the Court building and not be able to get a consultation room]. Try to find more than one option – your LA representative and their witnesses are likely to be doing the same and you probably want to end up in different places at lunch time. Check out the car parking and/or trains and buses. You can, if you want, go into any publicly listed case (and take children aged 14 or over in too) – you might want to do this to satisfy your own curiousity, but remember that cases that aren’t SEN cases are conducted very differently to nearly all other types of case. The Court on request should be able to arrange for you to see an empty Tribunal room. The best rooms for SEN cases have a large table where the panel sit on one side and the parties sit on the other side. But not all SEN cases are heard in these rooms – sometimes they’re heard in rooms that are otherwise used as county court rooms or on occasions in London, Court of Appeal rooms. It’s worth checking the telephone signal and whether there’s Wifi you can access.
  5. If you’re a parent running a case for a child or young person who can’t run the case for themselves and you’re considering whether your child should attend part of the hearing, plan the logistics for this – you need an extra person to supervise/support them, you need to think about where they will go after they’ve been into the hearing – can they and the person with them travel home/elsewhere for the day? [Note, the question of whether a child’s attendance at the hearing is a good idea is complicated – most of the time it’s not a good idea, but in some cases it’s a very good idea – all I’m saying here is that if you’re thinking about it, you need a plan to make it work so that you can concentrate on the hearing]
  6. Other planning for logistics on the day – Tribunals usually sit from about 10am – 4.30pm, but can sit longer, depending on the availability of the hearing room and the panel members. You need to think through any child care you need for the whole day, even if you case is only listed for half a day.
  7. If you can, identify someone who can act as your “helper” in the case. It will almost certainly assist you if you have a friend who is able to take notes for you to enable you to concentrate on listening/making only key word notes. Although you can also take observers to hearings, observers are specifically prohibited from taking notes.
  8. If you are disabled or otherwise have special requirements eg. due to an injury or illness or complicated pregnancy or similar, put a request in as early as you can seeking adjustments to accommodate you in the hearing. The Equal Treatment Bench Book is worth reading to get a full idea of the sorts of adjustment you might need. Generally SEN Tribunals will sit for about 1.5 hours before taking a short break [this is a very general estimate – some might go for longer or shorter than this]. They will usually break for lunch between 1-2pm and will have another break in the middle of an afternoon hearing. If you need more frequent breaks than this, you should make this clear. It isn’t generally acceptable to eat or to drink anything other than water in a Court room, but if you need to be able to take medication or eat something at any time, this is something worth explaining in advance.
  9. Try to get a good night’s sleep the day before the hearing. This is easier said than done, but important to try. If you can’t sleep, the best I can suggest is finding something restful to do rather than tired re-reading of your Bundle.
  10. Different people have different preferences around food, but eating breakfast is, in my opinion, recommended before doing something as demanding as a Tribunal hearing.
  11. Tribunal panels wear business suits. Traditional legal dress ie. wigs, gowns isn’t worn much in Civil Courts and has never been worn in the Tribunal dealing with SEN cases. Wear something you feel comfortable in, when you’re around other people wearing business suits. Some Court buildings are big and require a fair amount of walking between the entrance and your Court room. There is also a lack of consultation rooms in many Court buildings, so it’s worth wearing shoes that are comfortable for you to walk and stand in all day. Try to avoid noisy clothing – things that fizzle as you move around (simply because this may be distracting to the others in the hearing room). Also try to avoid making your clothing so outrageous in any direction that it becomes a talking point; the focus of the case is meant to be the individual’s special educational needs, so anything that distracts from that is unlikely to help.
  12. Get there early. Really early. Cases are supposed to be listed within a reasonable daily travelling distance from your home, but sometimes aren’t [you can ask the Tribunal to move them if this happens, but you might have reasons to go with the less convenient venue]. Roads get traffic-y, Trains run late – so allow plenty of time for this; take the train before the one you really need. If your travel arrangements are complex due to the need to coordinate them with care for your disabled child, warn the Tribunal in advance in case you end up being later than you intend.
  13. Arrange where you’re meeting any witnesses/anyone else in advance – in some really old Court buildings there is limited mobile signal.
  14. Don’t rely on there being Wifi you can use at the venue. Don’t rely on there being enough mobile signal for you to use 3G/4G [though there probably will be] – take copies with you of anything important, including any video evidence you want to play. If you are taking video evidence, take a laptop or other device that can play the evidence.
  15. Take a bottle of water with you (there will be water in the hearing rooms, but not necessarily anywhere else in the building). Also, take snacks with you for breaks in the hearing and/or in case you don’t feel like leaving the building for a sandwich.
  16. Take some means of taking notes with you; a laptop, a pad of paper where the pages turn quietly and pens – whatever works best for you (but remember you’re not going to be allowed to record the hearing whether in audio or video). Don’t rely on there being power sockets you’ll be allowed to use in the hearing room if you’re using a laptop. Make sure you know how to turn all the sound off on your laptop if you’re using it for note taking. Make sure you know how to turn your mobile phone and any other tech with you to silent/off. Don’t rely on your mobile phone to keep track of time; wear a watch.
  17. Take post it notes or an easily torn pad of paper with you – so you can pass notes to your helper and/or witnesses. Also take pens – take a mixture of colours and take some highlighter pens.
  18. Assume your case might be adjourned part-heard (ie. the panel have heard some of the evidence and need to hear more before they can make a decision). Take your diary with you, completed with details of any fixed commitments eg. surgery dates, pre-booked holidays and so on, in order that you can agree a further date for the hearing on the day. Most cases will not adjourn part-heard, but it is much better to be prepared for this happening than otherwise.
  19. Be pleasant and polite to everybody you see within a mile’s radius of the Court (and certainly anyone you encounter at the local train station). You will not be the only person going to that Court building that day and you never know whether the person standing behind you in the coffee shop queue is a Judge/a Clerk/an Usher. Always be polite to the Court staff and Clerks that you see when you arrive on the day of the hearing. Usually consultation rooms are “first come first served”, so if there’s an empty one, grab it; if there are staff around ask them for help finding one.
  20. If it’s an appeal about the contents of an EHC Plan, make sure you have a couple of copies of the most up to date version of the “Working Document” with you – keep one as a spare so that you can do a neat write up of any agreed amendments if the one you’re actually working with ends up a difficult to navigate mess of crossings outs and additional wording. Don’t make any other notes on the copy of the Working Document where you’re agreeing changes with the LA. Usually, where a parent is unrepresented the Tribunal will err on the side of ordering the LA to produce documents because they should have the capacity to do this; if you’re in a situation where you have a non-lawyer acting for the LA who doesn’t know what they’re doing, and you have the computer equipment and time, you might want to offer to do things like producing a typed up version of the agreed Working Document. This is a judgment call; sometimes it is easier to do things yourself than to have the LA do it badly and have to engage in correspondence to correct it.
  21. It’s not unusual to get to a hearing about the contents of an EHC Plan to find the LA want to negotiate with you on the day, with a view to settling the case. You may find it useful to have thought about your “red lines” in advance – a negotiated settlement produces a certain outcome, rather than leaving it in the hands of the Tribunal. But by the time you’ve got to a hearing, you may well be of the view that unless you get a very substantial portion of what you’re seeking, you’d rather take your chances with the Tribunal. Don’t be bullied into accepting a settlement you don’t want.
  22. Remember that the Tribunal Panel can see you. When you are in a Court room where the panel are sitting at a higher level that the parties they have a very good view of what you are doing. I hesitated a bit before including this one, because knowing it might leave you feeling very self conscious, but on balance it’s worth knowing.
  23. Don’t interrupt other people who are talking in a hearing. Even if they’re completely wrong about something. Write yourself a note so you can deal with the point later. Most of the other bits of “court room etiquette” expected of lawyers are either completely out of place and not used in SEN hearings or are things it’s OK for you to not know. The only person who is allowed to interrupt is the Judge. Let the Judge interrupt you. There are some [brave/foolhardy] lawyers who will ignore some of this some of the time. If you’re without representation in an SEN case, up against a lawyer who is picking a fight with the Judge, you’re probably best advised to stay out of it. Politeness isn’t going to win the case for you, but failing to be polite is likely to make life more difficult. If you are Autistic or otherwise struggle with social communication yourself and you worry that you might come across as being rude when you don’t mean to, it’s worth explaining this in advance.
  24. The only other bits of probably useful “court room etiquette” in this context are: sometimes water in hearing rooms comes in large plastic jugs with small, disposable plastic cups – hold the cup as you pour from the jug to avoid spilling water everywhere. It is customary to refer to people by title and surname rather than by their first names. It is also usually expected that you speak to the panel rather than to the LA’s representative, in the sense of “all comments go through the chair”.
  25. SEN hearings don’t follow a set format – the Judge will decide on the most appropriate format for the hearing. This is unlike hearings in Courts that will follow a set format of hearing the claimant’s case and then the defendant’s case and then hearing closing submissions from both sides. Usually, the FTT in an SEN case will work out the list of issues that are in dispute between the parties and then work its way down the list. It’s worth working out what you think the issues are and trying to agree your list of issues with the representative for the LA. Even if you can’t, if you have a list in your own mind of what’s in dispute, you can tell the Judge what your list is and they can use that together with what the LA says the issues are to work out what they determine the issues to be and the areas where they want to hear evidence. When you are dealing with an appeal about the content of an EHC Plan, it is usual for the Tribunal to work through the issues sequentially ie. disputes about what the child’s needs are, then disputes about the educational provision they require and then to look at school placement. This follows the requirements of the case law R v Secretary of State for Education and Science ex parte E – the diagnosis of needs has to be right before you know what prescription of special educational provision is needed to address those needs and without knowing what special educational provision is required you can’t work out which school(s) can meet the child’s needs.
  26. Listen to the Judge and the Specialist Panel Member(s). If you don’t understand what they’re saying, ask them to repeat what they’ve said or explain it a different way. If they ask you a question – and they might, because you know your child the best, try to answer it.
  27. Quite a lot of what happens in the run up to a hearing can leave you feeling really very cross. You are likely to be able to provide better information to the Tribunal if you are able to contain your anger. Even perfectly justifiable anger isn’t usually helpful when trying to explain your child’s needs to people who know nothing about the situation.
  28. You should be given an opportunity to ask questions of any witnesses the LA bring to the hearing. Have a plan for what you want to ask them, that’s focused on the issues in the case. If the Tribunal panel have already asked some of the questions you wanted to ask, don’t repeat them.
  29. Plan something relaxing for afterwards; expect to be tired.

If I had a child with complex needs – Part 1

Something I’ve known a lot of people do is think through how they’d use their professional expertise if a similar situation to that which affects their clients/patients/customers affected them. For example, I’ve read of doctors who would refuse a lot of the care they’d recommend for their patients.

I’m somewhat unusual for a professional in this field, in that I don’t have children, let alone children with SEN. But I have spent some time thinking about what I’d do if I had a child with complex needs.

I have enough to say about this it has to be divided into more than one post – this is Part 1.


The first thing I’d be thinking about would be “Am I still living in the right place, given the change in circumstances?” In some cases it can be obviously early on that a child will have significant disabilities, in others it can take years to get to a full understanding of their needs and/or they can have needs that can be expected to worsen or be more difficult to cope with in the years to come. In other cases again it would be reasonably clear that what my child has is reasonably mild as a difficulty so the answer is that there’s no need to look at moving house. It is said that it takes a village to raise a child, with reference to all children, not specifically disabled children, but the demands of caring for a disabled child can be considerably in excess of those of a “standard issue” child, so, to my mind it makes sense to make life as easy as possible for me. The disabled child is only one member of the family and there are lots of factors to consider around location. Some of the factors I think are important are:

* Proximity to people who are able to help out with caring for my child.
* Proximity to people who I’m close to, but who can’t, for whatever reason, provide much practical help.
* General cost of living – disability is expensive, so there’s good reason to consider living away from the more expensive south east.
* Proximity to any specialist services that my child would need to see frequently. I’d take this one quite cautiously, given the NHS habit of closing specialist services and moving them elsewhere every so often.
* Proximity to work and if I shared a household with other adults their work.

Once I’d reached a view on the broad area of the country where I wanted to live, my next considerations would be:

* Public transport – how good are the local buses/trains? Do I want to move to somewhere with better public transport? If I had an able child who I anticipated might not be able to learn to drive due to blindness or epilepsy etc or if I had a child with moderate learning difficulties, I’d prioritise living in a town with good public transport links to promote my child’s later independence.
* Road links – how easy is it for me to travel by car to places I need to go to reasonably often? How easy is it for people to come and visit me? Am I somewhere it’d be reasonably easy to get paid care workers to come to?
* What sort of house/flat do I want to live in – if I had a child with Autism, severe learning difficulties and challenging behaviour, I’d be looking for a house with a large private garden that lends itself to being enclosed with a fence and that’s not too close to any neighbours who’d be disturbed by my child being noisy in the garden. If I had a child with physical disabilities or other needs that might necessitate the house being adapted with a Disabled Facilities Grant, I’d pick a property, probably with advice from an Occupational Therapist, that lends itself to future adaptions. I’d also have in the back of my mind the potential for the property to eventually be split into flats or similiar, if there was a possibility of my child living here permanently and me moving out once they’d grown up.
* Proximity to a hospital if my child is likely to need lots of appointments.
* Assessing the site layouts of the local state funded schools; do they look accessible to my child? There can be considerable difficulties in obtaining placements at specialist independent schools when you live very close to them, as often the local LA will develop an alternative provision to resist placing children in them. As looking at where I’m living would be one of the first things I would do, I’d be unlikely to have a full view on which schools I would consider ultimately appropriate for my child anyway. I’d be making sure I wasn’t living too close to any specialist independent school I thought was a realistic possibility (unless discussions with the school and my research about the available LA provision made me consider it safe enough). I’d be looking for schools that are ideally LA maintained (more controls on them than on Academies) that are reasonably modern (if my child has mobility problems) and, as I’m an agnostic atheist, ideally ones that don’t have a religious foundation. If I had a child with a hearing impairment, I’d be looking for a school with good acoustic performance. If there happened to be a school that was smaller than average or had smaller classes I would look at it closely. Sometimes a smaller school is able to more easily provide bespoke intervention as there are fewer people to liaise with. Sometimes a larger school has more resources and is more able to be flexible, so the answer isn’t clear cut in the abstract. Smaller classes aren’t an effective intervention for SEN in themselves, but they might be useful if I had a child with sensory processing difficulties or who was blind or deaf.

Employment / Money

In parallel with looking at where I’m living I’d be thinking about what I’m doing employment wise. It’s very often the case that parents of disabled children find themselves ‘forced’ into giving up work (as opposed to wanting to work less for their own reasons), causing financial difficulties. As I now run KJM Legal, my assessment would be different from that of somebody working for an employer, but I would still need to consider how to manage my workload and what adjustments in staffing I would need to make. If I were working for someone else, I would be looking at negotiating more flexible working arrangements or possibly changing job to something that is more flexible.

Home adaptions

Whether I’ve moved house or not, my next step would be creating a plan of works for my home to improve its usability for me and my disabled child. This is the next step for me, because home is the environment I control and I can make it work for us in ways that make my life easier. If I had a child with poor awareness of danger I’d be making at least one room in the house ‘safe’ for them to be there without me. If I had a child who tended to climb or was otherwise really at risk of injuring themselves, I’d look at the whole house to make sure all areas my child had access to were safe for them. I’d start with the most urgent work and have a plan for completing other work over time. If major renovations were needed I’d get started on the process to apply for a Disabled Facilities Grant early on, because I know bureaucracy is slow. I’d also be thinking about fire safety and ensuring I had an up to date plan (even if only in my own head) for how I’d get everybody out of the house in the event of fire.

Establishing support

I’d try to make use of my own social networks to put support in place for me and my child. I’d want to do this in a way that’s protective of my child’s future privacy, in the sense that their disability is their story, not mine. I might use one of the newfangled apps that are designed to allow you to arrange support amongst family and friends for disabled people. I’d want to be clear with people what they’re able to offer and arrange for them to do the things they’re able to do that are actually helpful to me. Even in theory this sounds like potentially creating a series of awkward conversations, but it’s probably worth doing, because it would help me avoid exhausting anybody’s good will by relying on them too heavily or by asking people to help me with jobs they don’t want to do. It might be useful:
* for me to have a list of people who are explicitly OK with me texting/phoning them late at night if I’m stressed
* for people to offer to take my child out for an afternoon each month
* for people to offer to come over to my house with dinner each month
* for people to offer to do babysitting for me / have my child overnight
* for people to accompany me to appointments/meetings – to note take for me/supervise my child while I concentrate on discussions (and sometimes the mere presence of another person makes a difference to the way a meeting goes)
If my child is less needy I might be able to avoid involving Children’s Services via an assessment of my child’s needs under Section 17 of the Children Act 1989 if there’s enough support available within my social networks. If there isn’t enough support available this way, then by being able to demonstrate that I’m already making use of the support that is available, I would have good grounds to resist any faffing by Children’s Services in putting in place effective support. Sometimes the moral high ground is useful and defendable ground. And I would have better ability to manage the process of challenging Children’s Services by making use of the available support to free up some of my time and energy.

Establishing support – paid for

Finances depending I’d arrange support that saves me time and stress eg. employing a cleaner each week, employing a gardener over the summer. I’d think through which jobs need to be done and work out which ones I need to do myself and which ones I can delegate or pay somebody to do for me.

Depending on my own stress levels, I might also look at ongoing counselling for me in the voluntary/private sector.

All of this would be about caring for myself well to enable me to support my child.

Establishing support – for my child

How I’d go about doing this would depend very much on my state of knowledge of my child’s difficulties and on their age. And actually this is too long to deal with here, so I will cover it in another Part of this series.

Extra-curricular type activities

What does fit here is that I’d encourage my child to join activities that match their abilities, interests and that are supportive of therapy aims and that reasonably fit into the week without imposing too great a burden on me. I’d be likely to encourage my child to go to Rainbows/Beavers/Brownies/Cubs/Guides/Scouts as I know from my own experience as a Guide and a Guide Leader that they will go to some effort to include disabled children. I’d look at anything run by/funded by local Children’s Services for disabled children in case there was anything that fit. This is an area where the “Local Offer” might actually be useful. I’d be likely to encourage them to try ballet or another type of dance or exercise that matches their ability and works in conjunction with any physiotherapy / occupational therapy.

Going to a SEN hearing without assistance – Part 1

Firstly, running a special educational needs appeal without assistance from someone with expertise in the law involved can’t be recommended. It’s a complex, technical area and if you don’t know the law, you are putting yourself at a disadvantage.

The Tribunal dealing with appeals about special educational needs is at least partially inquisitorial. Inquisitorial is in this context contrasted with “adversarial” and refers to the way in which the Tribunal panel hearing the case will approach it. It is usual for English Courts to operate a purely adversarial approach, where the Judge says very little and relies on the parties knowing the law and putting their cases forward in full. An inquisitorial approach is one where the Judge or panel are much more interventionist – they inquire into the parties’ cases and ask questions. Having drawn that distinction, it is worth pointing out that as there are increasing numbers of Litigants in Person in the Court system and very considerable demands on Court time there are times when cases in the Courts are being managed in a style closer to inquisitorial than the very traditional purely adversarial one.

Judges sitting in special educational needs cases are trained to do so. Specialist members (still sometimes called “wing members” as they sit either side of the Judge when there’s a three person panel) are also trained. You should therefore be in a position where your Judge knows the law well. But Judges, like the rest of us, are not infallable, they don’t know everything and sometimes get things wrong. [This the very reason for the existence of courts of appeal – to put right cases that have gone wrong].

The level of skill and knowledge of those presenting cases for Local Authorities is hugely variable; sometimes Local Authorities will instruct barristers with specialist knowledge and skill in this area, some Local Authorities will use external solicitors, some have in house solicitors. If you have a specialist, qualified lawyer acting for the LA, they can be expected to behave in accordance with their professional obligations, but they are there to put forward their client’s case.

If you’re in this position and you don’t have your own representation, you are at a disadvantage, however much your Judge does to ensure the hearing is procedurally fair, it’s like you’re starting a football match, against a Premiership team, when you’ve never played football before.

Sometimes non specialist lawyers are asked to advise both families and Local Authorities on special educational needs cases. The procedural rules for Tribunal cases will be reasonably familiar to lawyers practising in other Tribunals and in general civil litigation (as they broadly follow (but not entirely) the Civil Procedure Rules, which are used in litigation in the Courts (rather than Tribunals). The substantive law has to be sought out – both in legislation and case law. Non specialists lawyers can make things take longer because they don’t know what they’re doing so fail to concede things they ought to concede. Those who attend hearings are likely to be reasonably experienced in presenting cases in other Courts/Tribunals, where the expected style of presentation is quite different to that in SEN Tribunals.

Sometimes LAs have cases presented by experienced Case Officers; those who’ve been around for some time nearly always become competent at doing so and you will be at a disadvantage against one of these people if you don’t have representation. Unfortunately, one of the consequences of the public spending cuts over recent years has been experienced case officers leaving LAs.

Sometimes things can be very difficult in another way; the LA has the case presented by someone without the training or knowledge to do so or who is terribly overworked and not effectively supported. In these cases, things very often take longer because of the LA’s representative’s inexperience or lack of knowledge.

So, in general terms, representing yourself in an SEN case cannot be recommended.

If you want representation your options include:

1. Solicitors with a specialisation in this area
2. Barristers able to take Direct Access Work who are specialists in this area.
3. Cilex trained lawyers who are specialist in this area
4. Charities like SOS!SEN and Ipsea who are experienced in this area
5. Other independent consultants, with a variety of levels of training and expertise.

Bear in mind that the advantage of using specialist lawyers is that there are requirements for practising lawyers to have professional indemnity insurance and there are regulatory bodies, so if things go wrong, there is a forum for complaints. [I know I have said this in other places on the website, but it bears repeating because the penalties for holding yourself out as practising as a lawyer when you are not one are significant. KJM Legal is not yet a body recognised by the SRA as a Solicitors’ practice. I will be seeking such authorisation once I have moved house, but don’t have it at the moment]