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.