Updated 19.06.2020 16.44pm
The Special Educational Needs and Disability (“SEND”) Tribunal has provided guidance on how it is responding to the current situation with regards to COVID-19.
If you have an upcoming hearing, then you might want to keep checking this link and you can also sign up for alerts via their website. You should also take a look at our page on where to get help with making an appeal.
Bringing an appeal
The law has been temporarily changed to relax the deadlines by which parents or young people must contact a mediation adviser, prior to bringing an appeal. Where it is not reasonably practicable, for a reason relating to the incidence or transmission of coronavirus, for a person to contact the mediation adviser to inform them they wish to appeal and whether they wish to pursue mediation within 2 months after written notice of the local authority’s (“LA”) decision, they are required to do so as soon as reasonably practicable.
The SEND Tribunal has been conducting all on paper or by telephone (and, where the technology permits, by video) since Monday 23 March 2020.
The SEND Tribunal administration team will send out log in details in advance of the hearing. These will be issued when the Notice of Hearing is issued. Instead of a physical venue you will see dial in or video dial in details with full instructions on how to join.
Telephone hearings are via an 0800 number and so should be free from landline or mobile. If a video hearing is ordered and you are concerned that your internet connection is not good enough, there will also be the option of joining via phone. The number to call should be included in the Notice of Hearing, but if it is not, contact the SEND Tribunal to find this out. If you require technical support for a telephone or video hearing you can call 0330 8089405
Appeals and claims will be prioritised by the judiciary and consideration given to the use of additional approaches including triaging of cases to ensure that decisions are made proportionately.
There may be an option to use a court venue if there is no access to a stable telephone or internet connection but you would need to check this with the SEND Tribunal administration team. An interactive map of open courts is available here.
Alternatively, you may be able to agree with the SEND Tribunal and the LA that a paper hearing (which does not require attendance of the parties or witnesses) would be appropriate.
The SEND Tribunal have asked parties not to call the Tribunal until 2 days before hearings if they haven’t heard anything as, like every public service, they are affected by staff shortages as a result of COVID-19.
In cases conducted wholly as video proceedings, the SEND Tribunal is able to direct that the proceedings be recorded. We are not aware of the SEND Tribunal routinely exercising this power and you should still take notes of proceedings for your records.
The SEND Tribunal is only routinely listing appeals which are being decided “on the papers” in August 2020. However, it has identified some additional scope to list hearings in August for appeals which are ready to be heard. This may be particularly helpful for appeals which concern a change of placement due to start in September and have been listed for hearings after the summer holidays. If your appeal is or is likely to be ready to be heard sooner, you can request an earlier hearing date. Contact the other party and, if they agree, find a suitable date for both of you and send it to the SEND Tribunal using the request for change form. If you can offer more than one date, that would be better.
Pilot of smaller Tribunal panels
To help cope with the current outbreak, a pilot direction has been issued (for a period of six months) about who can hear SEN appeals and claims against schools under the Equality Act 2010.
It means that, if a salaried judge considers that a case couldn’t go ahead, or would be subject to unacceptable delay, if the usual rules about how the panel is made up were applied, they can decide that the case will be heard by a judge alone, or by panel consisting of fewer or different members (and can select salaried or fee-paid members).
When making these decisions, judges will consider the urgency within which a case needs to be heard and the overriding objective (of fairness and justice).
If the panel composition is altered, the SEND Tribunal can still seek the advice of one or more non-legal members to assist with its decision-making, provided the advice is recorded and disclosed to the parties to the appeal.
With these measures, it is expected that there should be no need to adjourn hearings if the parties are ready to go ahead, even though they may not be able to take place in person.
You can find further guidance on how telephone and video hearings will be used during the COVID-19 outbreak here.
Compliance with Tribunal Orders
The law has been temporarily changed to relax the deadlines by which LAs must comply with a Tribunal order or National Trial recommendation following the conclusion of a case. The changes also apply to cases which are conceded by the LA.
Where it would be impractical for the LA to comply with a deadline due to a reason “relating to the incidence or transmission of coronavirus”, they must instead comply as soon as it becomes practical for them to do so.
It is important to note that the changes only apply to deadlines falling after 1 May 2020. If the LA had already missed the deadline (for example, if they should have issued an amended EHC plan in April but failed to do so), they cannot rely on the new regulations to justify any further delay.
The changes are set out in the Special Educational Needs and Disability (Coronavirus) (Amendment) Regulations 2020 have temporarily amended both the SEN and Disability Regulations 2014 and the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017. The changes are in force until 25 September 2020.
Upper Tribunal hearings
The Upper Tribunal Guidance for Users dated 16 April states that as a result of the COVID-19 Coronavirus Pandemic, the Upper Tribunal (Administrative Appeals) Chamber (“UTAAC”) in England and Wales has had to limit its administrative operations. There will be considerable delays in deciding most appeals. The UTAAC is not holding face to face hearings at present. Arrangements are in hand for the processing of applications for permission to appeal from the First-tier Tribunal. Depending on the number of applications that the UTAAC receives, it may be necessary to prioritise applications relating to welfare benefits or other important rights in which case further guidance on prioritisation may be published.
• Contact all your witnesses and anyone else dialling in on your behalf, in advance, to check whether they have reliable phone or internet connection. If they do not, then let the LA and the SEND Tribunal know as soon as possible.
• If possible, try to arrange a telephone or virtual meeting before the hearing to give you, any witnesses and advocate you have the opportunity to speak before it begins.
• If you have any late evidence, send this to the normal email address (email@example.com), with details of your hearing date, time, and appeal number. At the start of the hearing, check that this has been received by the panel. If it has not you may be able to resubmit it via email for their attention and possibly present it live by sharing your screen in the virtual hearing. If the panel agrees to you presenting late evidence in this way, minimise other windows to make sure you only share what you intend to!
• If you or anyone else expected to dial-in has caring responsibilities (with many school children now at home, this may well be a concern) alert the LA and the Tribunal to this to discuss what accommodations might be possible.
• If you are taking part in a hearing with the support of an advocate, speak to them in advance to agree how you will communicate with them confidentially during the hearing as necessary.
• Try to agree a how you will communicate with the LA as necessary during any breaks in the hearing.
• Avoid using any “chat” function on the software used for a virtual hearing for any communication that’s not intended the LA or SEND Tribunal panel have sight of.
• Make sure you are sitting somewhere comfortable, quiet and close to charging points. It’s a good idea to aim to be ready around 15 minutes early to make sure the phone or computer you are using is charged or plugged in so technology doesn’t cause distraction or delay.
• If you’re referring to documents in the bundle during a phone or video hearing, double check everyone has the right page as it will be trickier than in person to ensure everyone is looking at the right document.
• Make sure you keep notes as the hearing is going on, so when it’s your turn to talk you can address things raised by others when they were talking.
• Let the judge lead the call. Remember the hearing is still fairly formal and so you should not talk over the judge – but the SEND Tribunal will be understanding of the fact that it will be harder to know who is meant to be talking when!