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.